J-A24045-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :       IN THE SUPERIOR COURT OF
                                              :             PENNSYLVANIA
                       Appellee               :
                                              :
                  v.                          :
                                              :
WILLIAM TARDELLA,                             :
                                              :
                       Appellant              :       No. 546 EDA 2015

    Appeal from the Judgment of Sentence Entered December 12, 2014,
               in the Court of Common Pleas of Pike County,
             Criminal Division at No.: CP-52-CR-0000236-2014

BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED SEPTEMBER 11, 2015

      William Tardella (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to numerous counts of distribution of child

pornography and possession of child pornography. We affirm.

      Appellant was charged with 30 counts of distribution of child

pornography, 300 counts of possession of child pornography, and 1 count of

criminal use of a communication facility as a result of an Internet

investigation conducted by the Pennsylvania Office of Attorney General to

identify those possessing and sharing child pornography.               On August 28,

2014, Appellant pled guilty to counts 1-15, relating to distribution of child

pornography,   and      counts     151-300,       relating   to   possession   of   child

pornography; the remaining counts were dismissed. The factual basis of the

plea to the counts of distribution of child pornography was as follows:



* Retired Senior Judge assigned to the Superior Court.
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        Between the dates of December 11, 2013 and March 4, 2014,
        [Appellant] was in possession of 15 videos and/or images
        depicting children under 13 years of age in a state of nudity
        and/or engaging in sexual activity, that was distributed to an
        agent of the Pennsylvania Office of Attorney General via the
        eDonkey2000 peer to peer network.

Guilty Plea Colloquy, 8/28/2014, at 4. The factual basis of the plea to the

counts of possession of child pornography was that Appellant possessed

“150 videos and/or images depicting children under 13 years of age in a

state of nudity and/or engaging in sexual activity.” Id. at 5.

        On December 12, 2014, Appellant was sentenced to an aggregate

term of 3 to 10 years of incarceration.1                Appellant timely filed a


1
    The breakdown of Appellant’s sentence is as follows:

              On counts 1 through 4, [Appellant is to] be incarcerated in
        a state correctional facility for a period of not less than six (6)
        months nor more than twenty (20) months to be served
        consecutive to one another.

              On counts 5 and 6[, Appellant is to] be incarcerated in a
        state correctional facility for a period of not less than six (6)
        months nor more than twenty (20) months to be served
        consecutive to one another and consecutive to the sentence
        imposed on counts 1 through 4.

               On counts 7 through 15[, Appellant is to] be incarcerated
        in a state correctional facility for a period of not less than six (6)
        months nor more than twenty (20) months to be served
        concurrent to one another and to the sentences imposed on
        counts 1 through 6.

              On counts 151 through 300[, Appellant is to] be
        incarcerated in a state correctional facility for a period of not less
        than six (6) months nor more than twenty (20) months to be
        served concurrent to one another and to the sentences imposed
        on counts 1 through 15….


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J-A24045-15


post-sentence motion, which was denied on January 30, 2015.          Appellant

then timely filed a notice of appeal.   The trial court directed Appellant to

comply with Pa.R.A.P. 1925(b), and Appellant filed a 1925(b) statement.

The trial court subsequently issued an opinion pursuant to Pa.R.A.P.

1925(a).

     On appeal, Appellant challenges the discretionary aspects of his

sentence.

     It is well settled that, with regard to the discretionary aspects of
     sentencing, there is no automatic right to appeal.

            Before [this Court may] reach the merits of [a
            challenge to the discretionary aspects of a sentence],
            we must engage in a four part analysis to determine:
            (1) whether the appeal is timely; (2) whether
            Appellant preserved his issue; (3) whether
            Appellant’s brief includes a concise statement of the
            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a
            substantial question that the sentence is appropriate
            under the sentencing code…. [I]f the appeal satisfies
            each of these four requirements, we will then
            proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

     Appellant timely filed a notice of appeal; he preserved his issue in his

post-sentence motion; and his brief contains a Pa.R.A.P. 2119(f) statement.




Order, 12/12/2014, at 1-3 (unnecessary capitalization omitted).


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J-A24045-15


Thus, we must determine whether Appellant has raised a substantial

question worthy of appellate review.

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Disalvo, 70 A.3d at 903 (quoting Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013)).

      Appellant essentially alleges that the trial court’s decision to impose

certain sentences consecutively resulted in an unreasonable aggregate

sentence in light of the mitigating factors he presented at sentencing.

            Generally, Pennsylvania law affords the sentencing court
      discretion to impose its sentence concurrently or consecutively
      to other sentences being imposed at the same time or to
      sentences already imposed. Any challenge to the exercise of
      this discretion ordinarily does not raise a substantial question.
      In fact, this Court has recognized the imposition of consecutive,
      rather than concurrent, sentences may raise a substantial
      question in only the most extreme circumstances, such as where
      the aggregate sentence is unduly harsh, considering the nature
      of the crimes and the length of imprisonment. That is[,] in our
      view, the key to resolving the preliminary substantial question
      inquiry is whether the decision to sentence consecutively raises
      the aggregate sentence to, what appears upon its face to be, an
      excessive level in light of the criminal conduct at issue in the
      case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

and quotation marks omitted).




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      Here, Appellant received an aggregate sentence of 3 to 10 years of

incarceration for possessing 150 videos and/or images depicting child

pornography and distributing 15 of such videos and/or images. Significantly,

Appellant received consecutive sentences on only 6 of the 165 counts to

which he pled guilty.   In light of Appellant’s criminal conduct, we cannot

conclude that the consecutive nature of Appellant’s sentences raises his

aggregate sentence to a facially-excessive level. Thus, Appellant has failed

to present a substantial question.2 See Austin, 66 A.3d at 809 (concluding

that the appellant’s challenge to the discretionary aspects of his sentence did

not raise a substantial question where the appellant’s aggregate sentence

was 35 to 70 years of incarceration, included consecutive sentences on 47 of

96 counts of possession of child pornography, and stemmed from appellant’s

possession of 96 images stored on the appellant’s computer and flash

drives).

      Based on the foregoing, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




2
  Further, this Court has held that an “assertion of abuse of discretion for
imposing consecutive sentences without properly considering mitigating
factors fails to present a substantial question.”      Commonwealth v.
Johnson, 961 A.2d 877, 880 (Pa. Super. 2008).



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J-A24045-15

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2015




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