J-S72035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
              Appellee                   :
                                         :
     v.                                  :
                                         :
ROBERT JOHN PEOPLES, JR.,                :
                                         :
              Appellant                  :     No. 376 MDA 2016

          Appeal from the Judgment of Sentence February 9, 2005
           in the Court of Common Pleas of Lackawanna County
           Criminal Division, at No(s): CP-35-CR-0000337-2004
                                       CP-35-CR-0000338-2004

BEFORE:    GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED DECEMBER 23, 2016

     Robert John Peoples, Jr. (Appellant) appeals nunc pro tunc from the

judgment of sentence entered following his guilty pleas to crimes related to

his dissemination of child pornography.      Appellant’s counsel has filed a

petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

We deny counsel’s petition to withdraw and remand for further proceedings

consistent with this memorandum.

             The record reflects that on July 14, 2004, pursuant to a
     plea agreement, Appellant pled guilty to eight counts of sexual
     abuse of children, eight counts of attempted sexual abuse of
     children, and two counts of criminal use of a communication
     facility [(CUCF)]. On February 9, 2005, the trial court sentenced
     Appellant to an aggregate term of 176 to 424 months in prison.
     Appellant filed a timely petition for reconsideration of sentence,



* Retired Senior Judge assigned to the Superior Court.
J-S72035-16


     which was denied on February 15, 2005. Appellant did not file a
     direct appeal.

            On February 9, 2006, Appellant filed a pro se [Post
     Conviction Relief Act (PCRA)] petition in which he asserted that
     his guilty plea was unlawfully induced because of ineffective
     assistance from plea counsel. Appellant asserted in his petition
     that he was promised that his maximum prison sentence would
     be seven years. On March 31, 2006, the PCRA court appointed
     Attorney Carl Poveromo to represent Appellant in the PCRA
     proceedings. Attorney Poveromo did not file an amended PCRA
     petition. The PCRA court scheduled a hearing on Appellant’s
     petition for December 5, 2006, via video conference.         On
     November 17, 2006, Appellant filed a motion for appointment of
     new counsel. On November 29th, Attorney Poveromo filed a
     petition to withdraw and a no-merit letter pursuant to
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
     banc).    On November 30, 2006, the PCRA court granted
     counsel’s motion to withdraw.        Following the hearing on
     December 5, 2006, the court denied Appellant’s PCRA petition.

Commonwealth v. Peoples, 953 A.2d 604 (Pa. Super. 2008) (unpublished

memorandum at 1-2).

     On appeal from the denial of Appellant’s PCRA petition, this Court

reversed the PCRA court’s order and remanded with instructions:

     We remand for the appointment of new counsel and direct the
     PCRA court to supplement the record to include the notes of
     testimony from Appellant’s oral guilty plea colloquy, Appellant’s
     sentencing hearing, and Appellant’s December 5, 2006 PCRA
     hearing.[1] If the oral guilty plea colloquy was not transcribed,
     we direct the court to conduct a hearing in compliance with
     Pa.R.A.P. 1926. If the other proceedings indicated above were
     not transcribed, then we direct the PCRA court to indicate as
     such in the certified record. After appointed counsel has had the
     opportunity to thoroughly review the entire record, he or she is


1
  The record reflects that the transcript of the December 5, 2006 PCRA
hearing had been filed on December 7, 2007.
                                   -2-
J-S72035-16


     to file either an amended PCRA petition on Appellant’s behalf or
     a motion to withdraw pursuant to Turner/Finley.

Id. (unpublished memorandum at 7).

     Upon remand, the PCRA court appointed new counsel. Over the next

five years Appellant sent several pro se documents to the PCRA court, but

the record does not reflect that any action was taken upon Appellant’s

motions.   Finally, on March 7, 2013, the PCRA court scheduled a hearing,

and eventually, on August 18, 2014, “a status hearing was held regarding

Appellant’s PCRA [petition] and the efforts made to obtain copies of the

transcripts from Appellant’s guilty plea colloquy and sentencing.”2     PCRA

Court Opinion, 5/2/2016, at 7 (unnecessary capitalization omitted).

     Counsel filed an amended PCRA petition on September 29, 2014.

Nearly ten months later, on June 18, 2015, the Commonwealth filed a

petition for writ of habeas corpus ad prosequendum, and the PCRA court

that same day entered an order scheduling a hearing. The hearing was held

on July 7, 2015.   Seven months later, the PCRA court entered an order

reinstating Appellant’s direct appeal rights. Appellant timely filed his nunc



2
  At some point in 2014, Appellant pro se filed a habeas corpus petition in
the United States District Court for the Middle District of Pennsylvania. The
federal court noted that “the prolonged delay in disposition of [Appellant’s]
PCRA action is a matter of concern” and that Appellant’s argument of
inordinate delay to excuse his failure to exhaust state remedies had arguable
merit given the then-more-than-seven-year delay, but it ultimately
dismissed the action for failure to exhaust his state court remedies.
Peoples v. Mooney, No. 4:CV-14-487, 2015 WL 3751702, at *3 and n.4
(M.D. Pa. June 16, 2015).
                                    -3-
J-S72035-16


pro tunc notice of appeal, and both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      In this Court, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel. Accordingly, the following principles guide

our review of this matter.

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

      [I]n the Anders brief that accompanies court-appointed
      counsel’s petition to withdraw, counsel must: (1) provide a

                                     -4-
J-S72035-16


      summary of the procedural history and facts, with citations to
      the record; (2) refer to anything in the record that counsel
      believes arguably supports the appeal; (3) set forth counsel’s
      conclusion that the appeal is frivolous; and (4) state counsel’s
      reasons for concluding that the appeal is frivolous. Counsel
      should articulate the relevant facts of record, controlling case
      law, and/or statutes on point that have led to the conclusion that
      the appeal is frivolous.

Santiago, 978 A.2d at 361.

      Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied 3 with the

technical requirements set forth above.4       Therefore, we now have the

responsibility “‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly


3
   Counsel’s initial efforts were not compliant in that he misinformed
Appellant regarding his right to respond. However, this Court remedied the
situation by advising Appellant of his rights and granting him an extension of
time to respond. Order, 6/13/2016.
4
  Appellant has filed a pro se response to counsel’s motion and brief along
with several applications for leave to supplement and/or amend the
response, as well as a motion to stay the appeal and proceed pro se. The
gist of Appellant’s complaints in all of these filings is that counsel has not
pursued Appellant’s PCRA claims in this appeal.

 What Appellant fails to appreciate is that this is his nunc pro tunc direct
appeal, not an appeal from the disposition of his PCRA petition. It is not
until his judgment of sentence becomes final at the conclusion of this direct
review that Appellant may seek PCRA relief based upon those claims. See
Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (“Once the
PCRA court granted [Harris] the right to seek further review nunc pro tunc,
[his] sentence was no longer final and the PCRA court lacked jurisdiction to
rule on [his] other requests for relief. Accordingly, until [Harris’s] judgment
of sentence becomes final … we lack jurisdiction to consider the merits of
[his] remaining ineffective assistance of counsel claims.”) (citations
omitted). Accordingly, we deny all of Appellant’s motions.
                                     -5-
J-S72035-16


frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.

2015) (quoting Santiago, 978 A.2d at 354 n. 5).

      In his Anders brief, counsel offers the following issues of arguable

merit, which we have reordered for ease of disposition:

      1.    Did the trial court abuse its discretion in not honoring the
            plea agreement that the sentence imposed would not
            exceed seven (7) years?

      2.    Did the trial court abuse its discretion in not merging the
            charges of criminal attempt, [CUCF], dissemination of child
            pornography and criminal attempt to disseminate child
            pornography?

Anders Brief at 4 (unnecessary capitalization, trial court answers, and

suggested answers omitted).

      We begin with Appellant’s claim that the trial court did not sentence

him in accordance with the plea agreement.

      In determining whether a particular plea agreement has been
      breached, we look to what the parties to this plea agreement
      reasonably understood to be the terms of the agreement. Such
      a determination is made based on the totality of the surrounding
      circumstances, and [a]ny ambiguities in the terms of the plea
      agreement will be construed against the [Commonwealth].

Commonwealth v. Hainesworth, 2013 PA Super 318, 82 A.3d 444, 447

(2013) (citations and quotation marks omitted).

      The trial court offered the following analysis of Appellant’s claim by

looking to the written record.

           In this matter, Appellant alleges that there was a plea
      agreement as to the maximum sentence he would receive.
      However, no evidence of an agreement with those terms can be

                                    -6-
J-S72035-16


     found in the record. The Commonwealth contends that it made
     no such agreement. The written guilty plea colloquy states the
     following regarding plea agreements:

                13.     State specifically in detail any plea
           agreement with the District Attorney. Plead guilty to
           18 counts, remainder to be nolle prossed.

                                   ***

          Moreover, the written plea colloquy initialed on each page
     and signed by Appellant stated the following regarding his
     potential sentence:

                 15. Do you understand that the maximum
           penalty to the charges you are pleading guilty to is:
           7 yrs [$] 15,000

                15a. If you are pleading guilty to more than
           one charge, do you understand that the judge may
           impose consecutive sentences? Yes

                 If your answer to the preceding question is
           yes, state the total sentence that may be imposed on
           you. 126 years – [$] 270,000

     As such, Appellant’s contention that he had an agreement
     regarding a maximum sentence is unsupported by the record.
     The plea colloquy which Appellant signed and initialed clearly
     states that Appellant faced a maximum sentence of one hundred
     twenty-six years and the section regarding plea agreements with
     the Commonwealth contained no reference to a maximum
     sentence.

Trial Court Opinion, 5/2/2016, at 15-16 (some footnotes, citations, and

unnecessary capitalization omitted).   The trial court also considered the

testimony of Appellant and plea counsel.

           On July 7, 2015, th[e trial] court held a hearing to
     supplement the record under [Pa.R.A.P.] 1926, due to the
     unavailability of the notes of testimony from Appellant’s guilty

                                   -7-
J-S72035-16


     plea colloquy and sentencing.1       At the hearing, both the
     Appellant and his attorney at the time of the plea, John Petorak,
     gave testimony regarding their understanding of the plea
     agreement.
           _____
           1
              Th[e trial c]ourt attempted to supplement the record
           with the transcripts from Appellant’s guilty plea colloquy
           and sentencing as directed by the Superior Court. After
           attempts to locate the transcripts were unsuccessful, the
           head court reporter indicated in a letter to the court that
           the transcripts were not recoverable. As such, the court
           scheduled and held the hearing to supplement the record
           on July 7, 2015.

            Appellant essentially testified that he believed that the plea
     agreement consisted of two parts. Appellant stated that he
     agreed to waive his preliminary hearing and that he would plead
     to 18 charges and the remaining charges would be withdrawn.
     Appellant further stated that he understood that he would be
     entering a guilty plea to four counts of disseminating child
     pornography, four counts of possession of child pornography,
     two counts of [CUCF], and eight criminal attempt[s], and the
     remaining charges would be withdrawn. Appellant testified that
     based on the written plea colloquy, which he signed and/or
     initialed on each page, he believed that the maximum he would
     receive was seven [] years.[5]

                                    ***

            [Attorney] Petorak, testified that he had no knowledge of
     such an agreement, and that if he had such an agreement with
     the Commonwealth that was not honored by the court, he would
     have withdrawn the guilty plea. Attorney Petorak then again
     clarified that the only plea agreement he made with the
     Commonwealth was that Appellant would plead guilty to 18
     combined counts on both dockets and the remaining charges
     would be withdrawn.

                                    ***


5
   The trial court also noted that “Appellant further testified that no
conversation regarding a maximum sentence took place on the record.”
Trial Court Opinion, 5/2/2016, at 16.
                                     -8-
J-S72035-16


             Attorney Petorak testified that when filling out the plea
      colloquy, specifically [paragraph] 13, he did not indicate that
      there was any sentence agreement with this District Attorney’s
      Office. He further testified that if such agreement would have
      existed, he would have indicated as such in that section.
      Attorney Petorak stated that he went over the written plea
      colloquy with the Appellant and explained that each count
      carries\d a potential of seven years and $15,000.00 and that the
      maximum sentence that could be imposed was 126 years and
      $270,000.00 because the judge could impose consecutive
      sentences. Attorney Petorak stated that the reason the written
      plea colloquy had seven [] years and $15,000.00 was because
      all of the offenses were graded the same, each were felonies of
      the third degree. After reviewing the plea colloquy with the
      Appellant and the Appellant initialing each page and signing the
      agreement, Attorney Petorak believed that Appellant understood
      the terms of the agreement.

                                     ***

            Therefore, based upon the testimony of the hearing to
      supplement the record and the documents in the record, no
      agreement as to the maximum sentence Appellant would receive
      was presented to th[e trial] court. As such, th[e trial] court finds
      that no such agreement existed. Thus, th[e trial] court cannot
      have abused its discretion by failing to honor the alleged plea
      agreement.

Id. at 13-14, 15, 14, 16 (some footnotes, citations, and unnecessary

capitalization omitted).

      Based upon our review of the record and the trial court’s findings, we

conclude that the evidence does not support Appellant’s contention that the

plea agreement included a maximum aggregate sentence of seven years of

imprisonment.    Rather, the record shows that Appellant entered an open

plea to 18 counts that each allowed for a sentence of up to seven years in

exchange for the Commonwealth’s dismissal of the remaining charges.

                                     -9-
J-S72035-16


Thus, we agree with counsel that Appellant’s claim that the plea agreement

was breached when he received a sentence longer than seven years lacks

arguable merit.

     We next determine whether there is arguable merit to a claim that

Appellant’s sentences should have merged. Our Supreme Court has offered

the background on the doctrine.

     The purpose of the merger doctrine is double jeopardy-based,
     i.e., to safeguard against multiple punishments for the same act.
     The test for sentencing merger is the same test utilized to decide
     whether more than one offense has been committed in the
     double jeopardy context. …[T]he fact that this Court employs
     the same analysis in double jeopardy and sentencing merger
     cases is a function of the Double Jeopardy Clause’s prohibition …
     which protects against both successive punishments and
     successive prosecutions for the same offense. The United States
     Supreme Court has explained, however, that [e]ven if the crimes
     are the same[,] ... if it is evident that a state legislature
     intended to authorize cumulative punishments, a court’s inquiry
     is at an end.

Commonwealth       v.   Davidson,   938      A.2d   198,   217-18   (Pa.   2007)

(footnotes, citations, and quotation marks omitted). The statute governing

merger provides as follows:

     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. § 9765. Accordingly, we examine the elements of the statutes

defining the crimes for which Appellant was sentenced.



                                    - 10 -
J-S72035-16


      The statute regarding dissemination of child pornography provided as

follows.

      Any person who knowingly sells, distributes, delivers,
      disseminates, transfers, displays or exhibits to others, or who
      possesses for the purpose of sale, distribution, delivery,
      dissemination, transfer, display or exhibition to others, any
      book, magazine, pamphlet, slide, photograph, film, videotape,
      computer depiction or other material depicting a child under the
      age of 18 years engaging in a prohibited sexual act or in the
      simulation of such act commits an offense.

18 Pa.C.S. § 6312(c)(1) (effective January 21, 2003 to September 13,

2009).

      The possession of child pornography statute stated the following: “Any

person who knowingly possesses or controls any book, magazine, pamphlet,

slide, photograph, film, videotape, computer depiction or other material

depicting a child under the age of 18 years engaging in a prohibited sexual

act or in the simulation of such act commits an offense.”         18 Pa.C.S.

§ 6312(d)(1) (effective January 21, 2003 to September 13, 2009).

      The CUCF statute provides that “[a] person commits a felony of the

third degree if that 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….” 18 Pa.C.S. § 7512(a). “[T]he term

‘communication facility’ means 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



                                    - 11 -
J-S72035-16


limited to, telephone, wire, radio, electromagnetic, photoelectronic or photo-

optical systems or the mail.” 18 Pa.C.S. § 7512(c).

      Finally, “[a] person commits an attempt when, with intent to commit a

specific crime, he does any act which constitutes a substantial step toward

the commission of that crime.” 18 Pa.C.S. § 901(a).

      The trial court rejected Appellant’s merger claims upon the following

analysis:

             In this matter, merger is not appropriate. Under CP-35-
      CR-0000337-2004 [(hereafter case 337)], Appellant was
      charged and [pled guilty to four counts of dissemination under
      subsection 6312(c)(1), four counts of possession under
      subsection 6312(d)(1), and one count of CUCF]. These charges
      were based on the sexually explicit pictures of minors, namely
      “hayley016.jpg,”     “hayley017.jpg,”    “hayley018.jpg”      [and]
      “felisha13.jpg,” that Appellant did send or electronically transmit
      to Pennsylvania State Police while in an internet chatroom called
      “100%PreTeenGirlSexPics” [and] that Appellant possessed on his
      computer hard drives using a cable mode[m] for said uploading
      and downloading of different photographs.

            Under docket number CP-35-CR-0000338-2004 [(hereafter
      case 338)], Appellant [pled] guilty to eight counts of [attempted
      dissemination and one count of CUCF] and the remaining thirty
      charges involving [possession and attempted dissemination]
      were withdrawn. These charges stemmed from the subsequent
      search and analysis of Appellant’s computer hard drives which
      showed that Appellant did send or receive and offer to others to
      upload and download sexually explicit images of children.
      Appellant’s “shared” folder contained seventeen subfolders all of
      which contained images or movie files of children under the age
      of 18 engaged in sexually explicit poses or acts. …

            Here, the Appellant had multiple different images and
      videos of minor children engaged in prohibited sexual acts stored
      in the “shared” folder on his hard drives that he offered out and
      made available for downloading and uploading over the internet.

                                    - 12 -
J-S72035-16


        This pornographic material was different from the child
        pornography that Appellant transmitted to the Pennsylvania
        State Police electronically. Merger here is not appropriate based
        on the different factual basis for the charges and individual
        images. Appellant is not entitled to a “volume discount” for his
        multiple criminal acts.

Trial    Court   Opinion,   5/2/2016,   at    10-11   (citations,   unnecessary

capitalization, and repetition of amounts in numerical form omitted;

paragraph breaks added).      Likewise, counsel in his Anders brief indicates

that merger is not implicated because “[a]ll of the charges require different

elements to prove the offense.” Anders Brief at 8.

        We begin by noting that “each image of child pornography possessed

by an individual [is] a separate, independent crime under Section 6312.”

Commonwealth v. Jarowecki, 985 A.2d 955, 961 n.10 (Pa. 2009)

(citation and quotation marks omitted).       Thus, an individual may receive

separate sentences for each image of child pornography.        See Davidson,

938 A.2d at 218 (affirming imposition of 28 sentences for possession of 28

images of child pornography); Commonwealth v. Koehler, 914 A.2d 427,

439 (Pa. Super. 2006) (affirming 14 separate, consecutive sentences for 14

videos).

        Looking at the convictions in case 338, we agree that the merger

doctrine is not implicated for Appellant’s multiple attempts to disseminate

many different images of child pornography.        There are separate factual

bases and criminal acts for each conviction.      Further, Appellant’s criminal



                                     - 13 -
J-S72035-16


use of a communication facility to attempt to disseminate the images was a

separate and distinct criminal act with separate elements.       Accordingly,

there is no arguable merit to the claim that any of Appellant’s sentences in

case 338 should have merged.

      In case 337, Appellant used a communication facility to disseminate

four different images of child pornography. The elements of CUCF are not

included within the dissemination statute, thus a separate sentence for CUCF

was proper. Further, the trial court correctly issued separate sentences to

Appellant for each separate picture disseminated. Thus, there is no arguable

merit to the claims that the dissemination charges should have merged into

each other for sentencing purposes, or that the merger doctrine applied to

prohibit a separate sentence for CUCF.

      Neither counsel nor the trial court discusses specifically whether

Appellant’s convictions for possession of the four images at issue in case 337

merged for sentencing purposes with his convictions for dissemination of

those images.   The record reveals that Appellant received separate, albeit

concurrent, sentences for the possession and dissemination of the same four

pictures. Examining the language of the subsections of the relevant statute

reproduced above, there is certainly an argument to be made that the

elements of possession are included within the elements of dissemination,

and that the possession charge for each photo should have merged into the

dissemination charge for that photo. See Commonwealth v. DeLong, 879

                                    - 14 -
J-S72035-16


A.2d 234, 237 n.2 (Pa. Super. 2005) (“The crime of simple possession is a

lesser-included offense of both possession with the intent to deliver a

controlled substance, and delivery of a controlled substance.” (citations

omitted)).

      However, cases also note that each viewing of an image of child

pornography revictimizes the child depicted. See, e.g., Commonwealth v.

Baker, 24 A.3d 1006, 1036 (Pa. Super. 2011), aff'd, 78 A.3d 1044 (Pa.

2013) (quoting Davidson, 938 A.2d at 219) (“[E]ach image of child

pornography creates a permanent record of a child’s abuse, which results in

continuing exploitation of a child when the image is subsequently viewed.”).

This suggests that separate sentences for possessing and disseminating an

image may be appropriate.

      We conclude that the claim that Appellant’s dissemination and

possession charges in case 337 should have merged for sentencing purposes

is not so clearly devoid of merit to warrant classifying this appeal as

frivolous.   From our review, it appears that counsel is able to put forward

good-faith arguments that Appellant is serving an illegal sentence.

      Accordingly, we deny counsel’s motion for leave to withdraw and

remand the case for counsel to file an advocate’s brief within 60 days. The

Commonwealth may file a brief in response 30 days thereafter.




                                    - 15 -
J-S72035-16


      Petition to withdraw denied. Case remanded with instructions. Panel

jurisdiction retained.




                                  - 16 -
