J-S33010-24
2025 PA Super 38
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON RILEY WUNDERLICH :
:
Appellant : No. 169 MDA 2024
Appeal from the Judgment of Sentence Entered August 3, 2023
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000188-2022
BEFORE: OLSON, J., KUNSELMAN, J., and NICHOLS, J.
OPINION BY OLSON, J.: FILED: FEBRUARY 19, 2025
Appellant, Jason Riley Wunderlich, appeals from the judgment of
sentence entered August 3, 2023, in the Criminal Division of the Court of
Common Pleas of Perry County. We affirm.
The underlying facts are undisputed. On or about November 23, 2021,
the Pennsylvania State Police (PSP) filed a criminal complaint charging
Appellant with two counts of dissemination of sexually explicit material to a
minor, two counts of criminal use of a communication facility, and two counts
of corruption of minors.1 The charges were filed after PSP received a call from
the mother of a nine- or ten-year-old girl who reported that Appellant had
shown her two sexually explicit videos. At trial, the evidence established that
Appellant and the victim were together in a room used by Appellant as his
residence. While in the room, both Appellant and the victim were seated on
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1 18 Pa.C.S.A. §§ 5903(c)(1), 7512(a), and 6301(a)(1), respectively.
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a couch from which they could view a nearby computer. The victim testified
that she was shown two videos that depicted nudity and individuals engaged
in explicit sexual activity.
At the conclusion of trial on June 22, 2023, a jury found Appellant guilty
on all counts. Thereafter, on August 3, 2023, the trial court imposed its
sentence. For each count of disseminating explicit sexual material to a minor,
charged at Counts 1 and 2, Appellant received one to two years’
imprisonment. For each count of criminal use of a communication facility,
charged at Counts 3 and 4, Appellant received one to three years’
imprisonment. For each count of corruption of minors, charged at Counts 5
and 6, Appellant received nine months to three years’ imprisonment. The trial
court further ordered that the sentences imposed at Counts 1 through 4 shall
run consecutive to each other, and the sentences imposed at Counts 5 and 6
shall run concurrent to each other and concurrent to the sentence imposed at
Count 4. Hence, Appellant received an aggregate sentence of four to ten
years’ incarceration. This appeal followed.2
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2 Based upon our review of the docket entries and the submissions of the
parties, including Appellant’s multiple filings in response to our March 1, 2024
show cause order, we are satisfied that, while Appellant filed his notice of
appeal more than 30 days after the disposition of his post-sentence motion, a
breakdown in the trial court’s processes lead to the untimely filing of
Appellant’s notice of appeal. Accordingly, we shall refrain from quashal. See
Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. Super. 2002) (Superior
Court will address otherwise untimely appeal if fraud or breakdown in the trial
court's processes resulted in an untimely filing), appeal denied,
818 A.2d 503
(Pa. 2003).
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Appellant alleges in his first issue that the evidence was insufficient to
sustain his conviction for criminal use of a communication facility because the
Commonwealth failed to establish that the computer used in this case qualified
as a “communication facility” under 18 Pa.C.S.A. § 7512. Appellant concedes
the display of sexually explicit videos. See Appellant’s Brief at 14. He
nonetheless disputes that the computer used here constituted a
“communication facility” in the absence of any evidence of communication
with the victim or transmission of the video images over the Internet. See
id.
Whether the evidence adduced by the Commonwealth is sufficient to
sustain a conviction presents a question of law. Commonwealth v. Toritto,
67 A.3d 29 (Pa. Super. 2013) (en banc). Our standard of review is de novo,
and our scope of review is plenary. Commonwealth v. Walls,
144 A.3d 926
(Pa. Super. 2016). To assess the sufficiency of evidence offered to establish
guilt, we consider:
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict-winner, is sufficient to establish all
elements of the offense beyond a reasonable doubt. We may not
weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to resolve
any doubts regarding a defendant's guilt unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. When
evaluating the credibility and weight of the evidence, the
fact-finder is free to believe all, part or none of the evidence. For
purposes of our review under these principles, we must review the
entire record and consider all of the evidence introduced.
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Commonwealth v. Rojas-Rolon, 256 A.3d 432, 436 (Pa. Super. 2021).
“Evidence may be entirely circumstantial so long as it links the accused to the
crime beyond a reasonable doubt.” Commonwealth v. Koch,
39 A.3d 996,
1001 (Pa. Super. 2011).
We are unable to agree with Appellant’s contention that the evidence
was insufficient to sustain his conviction for criminal use of a communication
facility under 18 Pa.C.S.A. § 7512. In relevant part, the Crimes Code makes
it an offense if a person “uses a communication facility to commit, cause or
facilitate the commission or the attempt thereof of any crime which constitutes
a felony under this title or under [the Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. §§ 780-101, et seq.]” 18 Pa.C.S.A. § 7512(a). A
communication facility is “a public or private instrumentality used or useful in
the transmission of signs, signals, writing, images, sounds, data or intelligence
of any nature transmitted in whole or in part, including, but not limited to,
telephone, wire, radio, electromagnetic, photoelectronic or photo-optical
systems or the mail.” 18 Pa.C.S.A. § 7512(c). To support a conviction for
criminal use of a communication facility under Section 7512, “the
Commonwealth must prove beyond a reasonable doubt that: (1) [defendant]
knowingly and intentionally used a communication facility; (2) [defendant]
knowingly, intentionally or recklessly facilitated an underlying felony; and (3)
the underlying felony occurred.” Commonwealth v. Moss, 852 A.2d 374,
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382 (Pa. Super. 2004). “Facilitation” is “any use of a communication facility
that makes easier the commission of the underlying felony.” Id.
Under the statute, therefore, an offense is committed if, inter alia, a
communication facility is used intentionally to cause or facilitate a felony, and
the felony has occurred. A communication facility, in turn, is defined as a
device or instrumentality that is used or useful in transmitting images or
data of any nature through a variety of means. Appellant admits that a
computer under his custody or control was used to depict a sexually explicit
video to a minor. See Appellant’s Brief at 14. He claims, however, that the
evidence was insufficient to establish the use of a communication facility
where there was no testimony or proof that the videos were transmitted or
streamed over the Internet and there was no evidence of communication
between the Appellant and the victim.
Appellant overlooks important evidence and permissible inferences that
support his convictions under Section 7512. He does not contend that the
computer used in this case was not at least useful in the transmission of
pornographic imagery. Instead, he simply suggests that its transmission and
communication capabilities were not, in fact, contemporaneously engaged
when the adult images were shown to the minor victim. This position merits
no relief, as we agree with the Commonwealth and the trial court that the jury
could infer, based on the testimony at trial, that the sexually explicit images
shown to the victim were either livestreamed at the time of the offense or had
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previously been downloaded to the device. We also conclude that a device or
instrumentality capable of either contemporaneous livestreaming or prior
downloading (and subsequent reproduction) would satisfy the requirement of
a “communication facility” because such an object could be used or would be
useful in transmitting images or data “of any nature” through a variety of
means as required by Section 7512. See 18 Pa.C.S.A. § 7512(c).
Viewed in the light most favorable to the Commonwealth, the evidence
and permissible inferences were sufficient to prove each element of Section
7512. Here, Appellant used a computer to facilitate the felonious
dissemination of sexually explicit materials to a minor, the underlying felony
actually took place, and the jury acted well within its discretion in finding that
computer qualified as a communication device under Section 7512 because it
was useful in transmitting images or data. For these reasons, we reject
Appellant's challenge to the sufficiency of the evidence.
In his second issue, Appellant claims that his two convictions for
corruption of minors should merge, for sentencing purposes, with his
convictions for dissemination of sexually explicit material to a minor.3 See
Appellant’s Brief at 16. Appellant’s position is that the offenses merge because
“[t]he dissemination charge encompasses everything prohibited by
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3 We read Appellant’s claim as seeking to merge, for sentencing purposes, the
two corruption convictions with the two dissemination convictions which arose
from corresponding videos.
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corruption - it’s a perfect match.” Id. at 19. Should the offenses merge,
Appellant asserts that he may only be sentenced on the dissemination
charges, since those charges carry a higher grade than the corruption
offenses.4 See id. at 18.
A claim that crimes should have merged for sentencing purposes raises
a challenge to the legality of the sentence; therefore, our standard of review
is de novo and our scope of review is plenary. See Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa. Super. 2012).
The General Assembly has statutorily defined the circumstances under
which convictions for separate crimes may merge for the purpose of
sentencing.
Merger of sentences. No crimes shall merge for sentencing
purposes unless the crimes arise from a single criminal act and all
of the statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes merge for
sentencing purposes, the court may sentence the defendant only
on the higher graded offense.
42 Pa.C.S.A. § 9765.
We compare the elements of the offenses to determine whether offenses
must be merged for sentencing purposes. Commonwealth v. Nero, 58 A.3d
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4 Appellant’s corruption convictions were graded as first-degree
misdemeanors while his dissemination convictions were graded as
third-degree felonies. See Sentencing Order, 8/3/23, at 1-2; 18 Pa.C.S.A.
§ 5903(h)(2) (grading first-time dissemination offenses as third-degree
felonies); 18 Pa.C.S.A. § 6301(a)(1)(i) (grading non-course of conduct
corruption convictions as first-degree misdemeanors).
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802, 806 (Pa. Super. 2012). Merger is inappropriate when each offense
contains an element the other does not. See Commonwealth v. Baldwin,
985 A.2d 830, 833 (Pa. 2009) (“[Section 9765’s] mandate is clear. It prohibits
merger unless two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other.”).
Our review of Appellant’s convictions leads us to conclude that merger
is inappropriate in this case. Section 5903(c)(1), which proscribes
dissemination of explicit material to minors, provides that “[n]o person shall
knowingly disseminate by sale, loan or otherwise explicit sexual materials to
a minor[, and defines explicit sexual materials as materials which include any
picture or image of a person or portion of the human body which depicts nudity
or sexual conduct].” 18 Pa.C.S.A. § 5903(c)(1). Section 6301(a)(1)(i), which
defines corruption of minors, states: “whoever, being of the age of 18 years
and upwards, by any act corrupts or tends to corrupt the morals of any minor
less than 18 years of age, or who aids, abets, entices or encourages any such
minor in the commission of any crime, or who knowingly assists or encourages
such minor in violating his or her parole or any order of court, commits a
misdemeanor of the first degree.” 18 Pa.C.S.A. § 6301(a)(1)(i).
While both crimes clearly target offenders whose conduct tends to
endanger or harm the morality of minors, each offense includes an element
the other does not. Section 5903(c)(1) extends the class of potential
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perpetrators to all persons, without an age restriction. In contrast, a violation
of Section 6301(a)(1)(i) occurs only where the defendant is age 18 or older.
Section 6301(a)(1)(i) thus includes a required element which Section
5903(c)(1) does not. Moreover, while Section 6301(a)(1)(i) broadly forbids
any act which corrupts or tends to corrupt the morals of a minor, Section
5903(c)(1) more narrowly prohibits the dissemination of sexually explicit
materials to a minor. In this way, Section 5903(c)(1) contains an element
which does not appear in Section 6301(a)(1)(i). Under the plain language of
Section 9765, merger is prohibited in this case because each offense includes
an element the other does not. As such, Appellant is not entitled to relief on
his second issue and, accordingly, we shall affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 02/19/2025
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