OPINION BY CAVANAUGH, J.: �1 This is an appeal from judgment of sentence imposed after a juryconvicted appellant of five counts of unlawful use of a computer, 18Pa.C.S.A. �3933(a)(1), five counts of theft by deception, 18 Pa.C.S.A.�3922, and two counts of bad checks, 18 Pa.C.S.A. �4105(a)(1). Appellantwas sentenced to an aggregate term of imprisonment of three to six yearsand a consecutive term of two years probation. �2 The facts, as gleaned from the record, are that from April through June1997, appellant used an e-mail account on the Internet to sell and to receivevarious items of aquarium equipment. Certain items for which he hadreceived payment from the victims were not delivered by appellant to them.Other items which were provided to appellant by several victims pursuant toe-mail contacts were not paid for because appellant remitted checks drawnon closed accounts. Contact between the victims and appellant was made through e-mail accounts and web pages maintained on the Internet byappellant and others advertising the merchandise. �3 Appellant presents two issues for review challenging the sufficiency ofthe evidence and the legality of his sentence. We have reviewed the meritsof each and find that no relief on appeal is warranted. Accordingly, we affirmthe judgment of sentence. �4 The first issue questions the sufficiency of the evidence to support theconvictions of unlawful use of a computer. Appellant argues that use of e-mailthrough the Internet fails to fall within the statutory prohibition ofunlawful use of a computer, 18 Pa.C.S.A. �3933(a)(1), in that the Internet isnot a “computer system” and the use of e-mail is not “accessing” a computersystem. �5 The relevant statutory provisions are as follows: Offense defined A person commits an offense if he: (1) accesses, alters, damages or destroys anycomputer, computer system, computer network,computer software, computer program or database or any part thereof, with the intent tointerrupt the normal functioning of anorganization or to devise or execute any schemeor artifice to defraud or deceive or controlproperty or services by means of false orfraudulent pretenses, representations orpromises;Definitions- As used in this section the following wordsand phrases shall have the meanings given to them inthis subsection:”Access.” To intercept, instruct, communicate withstore data in, retrieve data from or otherwise make useof any resources of a computer, computer system,computer network or database.”Computer network.” The interconnection of twoor more computers through the usage of satellite,microwave, line or other communication medium.”Computer system.” A set of related, connected orunconnected computer equipment, devices andsoftware. 18 Pa.C.S.A. �3933(a), (c). �6 Appellant was charged in the information filed against him with fivecounts of violation of �3933(a)(1). Each of the five counts alleging violationof the statute quoted the complete definition of the offense as contained in�3933(a)(1), and added, “to wit, did access a computer system, the’internet,’ to defraud or deceive or control” specified merchandise or U.S.currency. Therefore, appellant was charged with violation of �3933(a)(1)through any actions or means specified by the above-quoted statutorylanguage. �7 “The Internet is an international network of interconnectedcomputers.” Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d874, 884 (1997). “Individuals can obtain access to the Internet from manydifferent sources, generally hosts themselves or entities with a hostaffiliation.” Id. “Anyone with access to the Internet may take advantage of awide variety of communication and information retrieval methods[including] electronic mail (‘e-mail’)”and the World Wide Web.” Id. “E-mailenables an individual to send an electronic message – generally akin to anote or letter – to another individual or to a group of addressees.” Id. at885. “The best known category of communication over the Internet is theWorld Wide Web, which allows users to search for and retrieve informationstored in remote computers, as well as, in some cases, to communicate backto designated sites. In concrete terms, the Web consists of a vast number ofdocuments stored in different computers all over the world.” Id. �8 The record demonstrates that appellant communicated with each ofthe five victims through e-mail either to sell or to buy merchandise.Although telephone communications were also established, each victim waseither the initiator or the recipient of e-mail communication with appellantvia the Internet. �9 Appellant argues that no expert evidence was offered to prove that theInternet is a “computer system.” We find that the apt description of theInternet, as contained in Reno v. ACLU, supra, as “an internationalnetwork of interconnected computers” has become commonly understood bylaypersons and this causes it to fall within the definition of “computernetwork” contained in �3933(c) without need for expert testimony.Therefore, sufficient evidence was presented to establish the element of theoffense that appellant accessed a computer network. �10 As noted above, the information charged appellant with, inter alia,accessing a computer network. The fact that it referred to the Internet as a”computer system” is of no relevance since a variance between the information and the proof at trial is not fatal as long as the defendant hadadequate notice of the nature of the crime and it does not cause prejudicialsurprise. Com. v. Lohr, 503 Pa. 425, 468 A.2d 1375 (1983); Com. v.Johnson, 719 A.2d 778, 783, n.4 (Pa. Super. 1998). �11 Appellant does not maintain that he was surprised or in any mannerprejudiced by the, perhaps erroneous, reference in the information to theInternet as a “computer system” rather than a “computer network.” We findno prejudice in the inconsequential use of the statutory language. �12 The next basis upon which appellant challenges the sufficiency of theevidence is that use of e-mail is not within the statutory definition of”access.” We find that the evidence supports the finding that appellantcommunicated with or otherwise made use of resources of a computernetwork. The sending of an electronic message over the Internet falls withinthe statutory definition of access. �13 Sufficient evidence is in the record to sustain the convictions ofunlawful use of a computer. �14 Appellant’s second issue is whether the theft by deception convictionsmerged for sentencing purposes with the convictions of unlawful use of acomputer. Where an actor commits a single criminal act, the sentences formultiple convictions based upon that act merge if one offense is a lesserincluded offense of the other. Com. v. Rippy, 732 A.2d 1216, 1223 (Pa.Super. 1999) (citing Com. v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994).A lesser included offense is one whose elements are a necessary sub-componentbut not a sufficient component of elements of the other crime. Id. (citing Com. v. Comer, 552 Pa. 527, 716 A.2d 593 (1998)). �15 The statutory provisions for the offense of theft by deception are asfollows: Offense defined- A person is guilty of theft ifhe intentionally obtains or withholds property ofanother by deception. A person deceives if heintentionally: (1) creates or reinforces a false impression,including false impressions as to law, value,intention or other state of mind; butdeception as to a person’s intention toperform a promise shall not be inferred fromthe fact alone that he did not subsequentlyperform the promise; (2) prevents another from acquiring informationwhich would affect his judgment of atransaction; or (3) fails to correct a false impression which thedeceiver previously created or reinforced, orwhich the deceiver knows to be influencinganother to whom he stands in a fiduciaryconfidential relationship. 18 Pa.C.S.A. �3922(a). �16 Appellant argues that theft by deception is a lesser included offense ofunlawful use of computer. He is mistaken. The offense of unlawful use ofcomputer does not have as an element the obtaining or withholding propertyof another as does theft by deception. The offense of unlawful use ofcomputer is committed where a person accesses a computer network withthe intent to devise or execute any scheme or artifice to defraud by means.J.S98007/99of false or fraudulent pretense, representations, or promises. The actualobtaining or withholding of the property is not an element of unlawful use ofa computer. The sentence imposed is a legal one and no merger ofsentences is necessary. �17 Judgment of sentence affirmed.
Pennsylvania v. Murgallis IN THE SUPERIOR COURT OF PENNSYLVANIA 2000 PA Super 167 COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL MURGALLIS, Appellant NO. 189 MDA 1999 Appeal from the Judgment of Sentence Entered November 20, 1998 In the Court of Common Pleas of LUZERNE County CRIMINAL NO. 4066 OF 97 Filed: June 2, 2000 BEFORE: CAVANAUGH, MUSMANNO and BROSKY, JJ.
