Appeal from the Judgment of Sentence of November 27, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No.: CP-41-CR-0000988-2011
BEFORE: DONOHUE, J., WECHT, J., and COLVILLE, J. [*]
Ty M. Levy appeals from his November 27, 2012 judgment of sentence. After careful review, we affirm.
In its written opinion, the trial court set forth the pertinent procedural and factual history of this case as follows:
[Levy was] charged with two counts of Sexual Abuse of Children, five counts of Unlawful Contact with Minor, one count of Obscene and Other Sexual Materials, two counts of Corruption of Minors, one count of Indecent Exposure, and one count of Open Lewdness, in connection with certain communications he had with a fifteen-year-old girl over the computer. A non-jury trial was held [on] June 18, 2012, at which time the Commonwealth withdrew Counts 4 (Unlawful Contact with [a] Minor), 10 (Corruption of Minors), 11 (Indecent Exposure) and 12 (Open Lewdness). The evidence was presented by stipulation: that [Levy] and the girl communicated via SKYPE whereby each could see the other during the conversation by way of a webcam, and that he encouraged the girl to expose herself and masturbate in front of the webcam (and that he did the same); also that each sent the other a "link" to a pornographic website. It was also stipulated that the SKYPE sessions were not recorded and that [Levy] did not have any images of the girl on his computer when it was examined by police.
"Opinion and Verdict" ("T.C.O."), 6/25/2012, at 1.
At trial, Levy vigorously argued that the evidence was insufficient to convict him of either sexual abuse of children, 18 Pa.C.S. § 6312(d), or subsection (a)(5) of the unlawful contact with a minor statute, 18 Pa.C.S. § 6318, because both crimes require proof beyond a reasonable doubt of the utilization of a "computer depiction" of a child for illicit purposes. Levy maintained that the use of Skype, an internet-based webchat service, was not a "computer depiction."
Additionally, Levy argued that the evidence was insufficient to convict him of obscene or other sexual material, 18 Pa.C.S. § 5903, or subsection (a)(4) of the unlawful contact with a minor statute, because those crimes require proof that the actor knowingly disseminated explicit materials to a minor. Levy argued that the email that he sent to the victim contained only a Uniform Resource Locator link (hereinafter, "link") to explicit materials, and not the explicit materials themselves.
At the conclusion of the stipulated non-jury trial, the trial court rejected Levy's arguments, and found him guilty of two counts of sexual abuse of children, four counts of unlawful communication with a minor, one count of obscene and other sexual materials, and one count of corruption of minors (18 Pa.C.S. § 6301). On October 10, 2012, Levy was sentenced to an aggregate six-year term of intermediate punishment, which included sixteen months of incarceration in the Lycoming County jail.
On October 17, 2012, the Commonwealth filed a motion for reconsideration of Levy's sentence, wherein the Commonwealth contended that Levy's sentence was too lenient. On November 1, 2012, the trial court granted the Commonwealth's motion to reconsider, and scheduled a second sentencing hearing for November 27, 2012. On that date, the trial court sentenced Levy to an aggregate term of thirty months to ten years' incarceration in a state prison.
On December 18, 2012, Levy filed a notice of appeal. In response, the trial court entered an order directing Levy to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 4, 2013, Levy timely filed a concise statement. In his statement, Levy again raised the statutory interpretation challenges that he raised during closing arguments at trial, as well as two challenges to his sentence. On January 23, 2013, pursuant to Pa.R.A.P. 1925(a), the trial court issued an opinion, wherein the court relied upon its discussion and rejection of Levy's statutory interpretation arguments that the court had set forth in its June 2012 "opinion and verdict." Additionally, the trial court rejected Levy's challenges to his sentence.
Levy raises the following four issues for our consideration:
1. Whether streaming video, such as Skype, cannot be considered a computer depiction under 18 Pa.C.S.A. section 6312, sexual abuse of children, nor under section 6318(a)(5), unlawful contact with a minor?
2. Whether sending a computer link via email cannot be considered dissemination of sexually explicit materials to satisfy a conviction under 18 Pa.C.S.A. section 5903, obscene or other sexual material, nor under 18 Pa.C.S.A. section 6318, unlawful contact with a minor?
3. Whether the sentencing judge committed an abuse of discretion by granting the Commonwealth's motion to reconsider sentence?
4. Whether the sentencing judge committed an abuse of discretion by increasing [Levy's] minimum sentence from sixteen (16) months to thirty (30) months and his maximum from county intermediate punishment to state incarceration when no new or additional evidence was presented by the Commonwealth at the re-sentencing hearing?
Brief for Levy at 7.
In his first two issues, Levy presents two questions of statutory interpretation for this Court to resolve. Specifically, Levy maintains that the utilization of Skype with the victim did not amount to a "computer depiction" for the purposes of his convictions for sexual abuse of children and for unlawful contact with a minor. Levy then argues that sending the victim an email that contained a link to pornographic materials did not constitute the knowing dissemination of explicit materials to a minor for purposes of the crimes of obscene or other sexual material or unlawful contact with a minor. On their faces, Levy's arguments sound in statutory construction. Levy maintains that the facts, to which he stipulated, do not satisfy the terms of the relevant statutes as he would have us interpret them. Statutory construction of a term in a criminal statute frequently forms the underlying basis for a sufficiency challenge. See generally Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009); Commonwealth v. Velez, 51 A.3d 260 (Pa. Super. 2012). Accordingly, we consider Levy's first two arguments as challenges to the sufficiency of the evidence.
We first set forth the basic principles that govern our resolution of Levy's first two claims, beginning with our standard of review for ...