from the Judgment of Sentence June 16, 2015 In the Court of
Common Pleas of Monroe County Criminal Division at No(s):
BEFORE: SHOGAN, SOLANO, and PLATT, [*] JJ.
Robert Sauers ("Appellant") appeals from the
judgment of sentence entered on June 16, 2015, in the Monroe
County Court of Common Pleas. We affirm the convictions,
vacate in part the judgment of sentence, and remand for
August 4, 2013, Monroe County Detective Brian Webbe was using
a proprietary police version of the Ares peer-to-peer
file-sharing network known as Ares Round-up Software
("software") to investigate on-line child
pornography. During his search, Detective Webbe identified a
computer with an IP address of 220.127.116.11 and a username
of "FromK9to5" as containing downloaded child
pornography. The detective downloaded ten files from the
suspect computer. Armed with a court order, Detective Webbe
identified Appellant as the owner of the IP address and
username. Upon execution of a search warrant at
Appellant's home, Detective Webbe found Appellant's
Dell laptop computer. Because no child pornography was
immediately discovered on the computer, Detective Webbe used
forensic software to examine the computer. He found files
indicating that Appellant's computer had recently
downloaded the Ares program and that the program had been
used to view, download, and share child pornography.
was charged with ten counts of possession of child
pornography, ten counts of dissemination of child
pornography, and one count of criminal use of a
communications facility. Following a more in-depth examination
of Appellant's computer, Detective Webbe found an
additional eighty-seven files containing child pornography in
the unallocated space of Appellant's computer.
Consequently, Appellant was charged under a separate docket
with eighty-seven counts of possession of child pornography.
The cases were joined for trial.
convicted Appellant on all eleven counts on the first docket,
and it acquitted him of the eighty-seven counts on the second
docket. The trial court sentenced Appellant to incarceration
for an aggregate term of sixty to 120 months. Additionally,
the trial court designated Appellant as a Tier III sexual
offender and directed his compliance with the lifetime
reporting requirements of the Sexual Offender Registration
and Notification Act ("SORNA"), 42 Pa.C.S.
§§ 9799.10-9799.41. Appellant filed post-sentence
motions, which the trial court denied. Appellant filed a
timely appeal. He and the trial court complied with Pa.R.A.P.
appeal, Appellant raises the following questions for our
1. Whether the trial court abused its discretion when it
admitted into evidence video evidence of child pornography
and photographic evidence of child pornography without first
viewing the entire content prior to publishing same to the
jury thereby inflaming the passions of the jury, and thus,
denying [A]ppellant a fair trial.
2. Whether the failure of the Commonwealth to provide and/or
allow forensic evaluation of their "Modified Ares -
Round-up["] Software denied [A]ppellant a fair trial
under Article I Section 9 of the Pennsylvania Constitution,
and the 6th and 14th Amendment[s] of
the United States Constitution,
Whether the Commonwealth's claim that the "Modified
Ares - Round-up["] Software is proprietary, and thus not
subject to distribution or review by outside computer
forensic experts denied [Appellant] a fair trial by
preventing [Appellant] from confronting the evidence against
himself at trial under the Pennsylvania Constitution, Article
1 Section 9, and the "confrontation clause" of
[the] 6th Amendment of the United States
3. Whether the evidence was sufficient to support the verdict
that [Appellant] actually possessed and/or disseminated child
4. Whether the trial court's jury instructions regarding
the definition of possession which included the trial court
judge's own instruction ignored other jurisdictions
definitions of possession, and denied [Appellant] a fair
trial under both Article I Section 9 of the Pennsylvania
Constitution and the 6thAmendment of the United
5. Does a trial court deny a defendant a fair trial under
Article I Section 9 of the Pennsylvania Constitution, Sixth
Amendment, and the Fourteenth Amendment of the United States
Constitution where it denies individual voir dire in a child
pornography case where: the social prejudices associated with
child pornography in a public forum voir dire denies a
defendant the ability in vetting individual jurors regarding
social, religious and personal prejudices on the subject of
6. Whether the sentencing court abused its discretion where
it made repeated references during sentencing, trial, and
pretrial to the fact that [Appellant] made the trial court
and the jurors see the child pornography during his trial,
and thus, subjected the jury to being victims themselves.
7. Whether the sentencing court abused its discretion wherein
the record demonstrates repeatedly that the sentencing court
punished [Appellant] for taking his case to trial.
8. Whether the trial court abused its discretion where it
used a far more egregious case as its reasons and
justifications for imposing the sentence it did upon
9. Whether the sentencing court abused its discretion where
it imposed incarceration upon [Appellant] (a first time
offender[)] where the very case the sentencing court used to
justify its sentence was a case involving a recidivist
Brief at 7-8 (renumbered).
first challenges the admission of the Commonwealth's
photographic and video evidence of child pornography. With
regard to the admission of evidence:
we give the trial court broad discretion, and we will only
reverse a trial court's decision to admit or deny
evidence on a showing that the trial court clearly abused its
discretion. An abuse of discretion is not merely an error in
judgment, but an overriding misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown
by the evidence or the record.
Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super.
2012) (citations and quotation marks omitted). The trial
court will be reversed only if an error in the admission of
evidence contributed to the verdict. Commonwealth v.
Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016),
appeal denied, 145 A.3d 724 (Pa. 2016).
Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more
or less probable, or supports a reasonable inference or
presumption regarding a material fact. Once evidence is found
to be relevant, it will be inadmissible only if its probative
value is substantially outweighed by the danger of unfair
prejudice or confusion.
Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa.
Super. 1999) (quotation marks and citations omitted); Pa.R.E.
claims the trial court erred as "gate-keeper" when,
prior to publishing the materials to the jury, the trial
court viewed three still images and four videos that the
Commonwealth intended to introduce but then allowed the
Commonwealth to admit all of the videos, and, thereby
"exposed the jury to hig[h]ly prejudicial and
inflame[m]atory evidence without viewing [it] prior to
showing it to the jury." Appellant's Brief at 11
(citing N.T., 3/3/15, at 76-88, 184-202; United States v.
Cunningham, 694 F.3d 372 (3rd Cir. 2012)).
Additionally, Appellant argues, admission of ninety-seven
images and videos, when Appellant was willing to stipulate to
their content, was prejudicial, cumulative, and not harmless
error. Id. at 10, 12, 13.
response, the Commonwealth explains, "[I]n an effort to
minimize any potential prejudicial effect, the Commonwealth
sought to introduce only a sample of the [challenged]
evidence and not the entire 'collection.'"
Commonwealth's Brief at 9. Moreover, although it was not
required to do so, the Commonwealth would have agreed to
Appellant's stipulation that the remaining images
constituted child pornography, but Appellant refused to
stipulate. Consequently, the Commonwealth considered it
necessary to show all of the images to sustain its burden.
Id.; N.T., 3/3/15, at 12, 74.
trial court addressed this issue on the pretrial record as
You can't just say I object to all [of] the
Commonwealth's evidence that it may or may not put in and
have a judge make a peremptory ruling. What you can do is to
say that if -- which is what both of you said this morning --
is that within that evidence there are some individual
depictions, some individual videos that you believe that
under no circumstance should come into this case and if you
want to identify them and have me rule on them now I will;
but I'm not going to rule on in the abstract what the
Commonwealth may or may not put into evidence.
* * *
If I took your argument to its logical conclusion then in
every criminal case the [c]ourt should have a pre-hearing
conference, ask the Commonwealth to trot out it's [sic]
evidence, lay it out on the table, play it on a TV screen,
get a tape recorder out here and play the audios, either get
people to come in and give their testimony or provide a