Com. v. Wunderlich, J.

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.

J-S33010-24

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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