Opinion
J-S16034-17 No. 1189 WDA 2016
05-15-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. GEORGE POWELL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 21, 2016 in the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0001236-2015 BEFORE: MOULTON, J., RANSOM, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, George Powell, appeals from the judgment of sentence imposed following his jury conviction of distribution of child pornography and related offenses. He challenges the validity of the search warrant, and claims his statements to law enforcement were coerced. He questions the sufficiency and the weight of the evidence. He argues that his sentence was unconstitutional. He denies the evidence was sufficient to support the determination that he is a sexually violent predator. He claims the requirement of lifetime registration is unconstitutional. We affirm, in part on the basis of the trial court's opinions.
In its opinions, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them at length here.
Appellant's pro se Motion to Disclose, seeking disclosure of the status and disposition of his purported motion to disqualify appointed appellate counsel, is denied as moot. ( See Motion to Disclose, 2/09/17). Appellant's motion to disqualify counsel was denied, per curiam, on December 21, 2016. ( See Order, 12/21/16); see also Commonwealth v. Jette , 23 A.3d 1032, 1035 (Pa. 2011), and Commonwealth v. Ellis , 626 A.2d 1137, 1139 (Pa. 1993) (rejecting hybrid representation at trial or on appeal).
For the convenience of the reader we note briefly that law enforcement officers assigned to task forces involving violent crimes against children and Internet crimes against children received cyber tips from the National Center for Missing and Exploited Children, alerting them to the possibility that Appellant was obtaining, possessing, and re-distributing contraband pornographic images. The investigators obtained a court order which identified Appellant as the subscriber to the relevant I-P addresses, some registered in the name of his mother. After obtaining and executing a search warrant, the investigators seized electronic devices containing pornographic images from Appellant's home. These images (published to the jury at trial) included pictures and still screen shots, or "captures" from videos of naked prepubescent children in provocative poses, or engaging in sexual acts.
After receiving, reading, and acknowledging receipt of his "Advice of Rights," ( see Miranda v. Arizona , 384 U.S. 436 (1966)), Appellant generally acknowledged searching for, obtaining, and resending images and videos of children in sexually provocative poses or engaging in sex acts, i.e., child pornography.
Appellant raises at least eleven issues, framed as six compounded questions, for our review:
1. Whether the suppression court erred in denying [Appellant's] omnibus pre-trial motion challenging the validity of the search warrant and the voluntariness of [Appellant's] statements?(Appellant's Brief, at 7-8).
2. Whether the evidence presented at trial was insufficient to establish that [Appellant]: 1) knowingly distributed, delivered[,] disseminated, transferred, displayed or exhibited photographs depicting a minor child engaged in prohibited sexual acts; 2) knowingly possessed, controlled, or intentionally viewed photographs depicting a minor child (or children) engaged in prohibited sexual acts; and 3) intentionally, knowingly or recklessly used a communication facility to commit a crime?
3. Whether the jury verdict was against the weight of the evidence?
4. Whether the mandatory sentencing scheme set forth in 42 Pa.C.S.A. § 9718.2 is unconstitutional as its application 1) results in cruel and unusual punishment; 2) is contrary to the Supreme Court's holding in Alleyne v. United States , 133 S. Ct. 2151; and 3) is prohibited as applied under the ex post facto clause of the United States and Pennsylvania Constitutions?
5. Whether the evidence was sufficient to find [Appellant] a sexually violent predator?
6. Whether requiring [Appellant] to register for life is unconstitutional[?]
Preliminarily, we are reminded of the observation by the Honorable Ruggero J. Aldisert, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, that this Court has previously cited in Kenis v. Perini Corp., 452 Pa. Super. 634, 682 A.2d 845 (1996), as well as other cases:
When I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.
J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 409-10 (Pa. Super. 2012).
Id. at 847 n.3 (citations omitted); see also Commonwealth v. Snyder , 870 A.2d 336, 340 (Pa. Super. 2005) ("[T]he effectiveness of appellate advocacy may suffer when counsel raises numerous issues, to the point where a presumption arises that there is no merit to any of them.") (citations omitted).
Moreover, we note that for the most part, Appellant has failed to develop arguments supported by citation to pertinent authority for his eleven claims. See Pa.R.A.P. 2119(a), (b). Instead, he merely cites authority for general principles not at issue here, states the case and presents abbreviated, largely conclusory arguments, without appropriate citation to the record. See Pa.R.A.P. 2117(c); Pa.R.A.P. 2119(c), (d), (e).
In particular, Appellant claims that the search warrant issued on August 4, 2015 was defective. ( See Appellant's Brief, at 11-12). Contrary to Appellant's express assertion, the search warrant was supported by a lengthy, specific, detailed affidavit of probable cause, identifying and describing at least sixteen image or video files depicting children from the age of eight to sixteen engaged in provocative poses or actual sex acts. ( See Affidavit of Probable Cause, 8/04/15). The suppression court properly denied Appellant's Omnibus pre-trial motion, after a hearing. There was clearly probable cause for the search warrant. Appellant's claim is frivolous.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the trial court we conclude that there is no merit to any of the issues Appellant has raised on appeal.
The trial court opinions properly dispose of the questions presented. ( See Opinion and Order, 1/04/16, at 2-5; see also Trial Court Opinion, 11/09/16, at 2-12) (finding: (1) search warrant was valid, reasonable, and supported by probable cause; Appellant's statements were voluntary and intelligently made; (2) evidence presented was sufficient to establish that Appellant (a) knowingly distributed, delivered, disseminated, transferred, displayed or exhibited photographs depicting a minor child engaged in prohibited sexual acts; (b) knowingly possessed, controlled, or intentionally viewed photographs depicting a minor child or children engaged in prohibited sexual acts; and (c) intentionally, knowingly or recklessly used a communication facility (laptop, cell phone, external hard drive) to commit a crime; (3) trial court properly denied Appellant's challenge to weight of the evidence, which lacked merit; (4) Appellant failed to overcome presumption of constitutionality or otherwise establish that his sentence was unconstitutional; specifically, Appellant failed to establish that (a) his judgment of sentence constituted cruel and unusual punishment, (b) fact of prior conviction was not an express exception to holding in Alleyne , and (c) recognition of prior conviction for rape did not constitute ex post facto violation; (5) Commonwealth provided sufficient evidence to classify Appellant as sexually violent predator; and (6) Appellant failed to establish that requirement of lifetime registration was unconstitutional).
Citing Commonwealth v. McDonough , 96 A.3d 1067, 1071 (Pa. Super. 2014), appeal denied, 108 A.3d 34 (Pa. 2015) (holding Commonwealth's Sexual Offender Registration and Notification Act (SORNA) registration provisions constitutional as applied). --------
Accordingly, we affirm on the basis of the trial court's opinions.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/15/2017
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