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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 MAY 22, 2017

     Robert John Peoples, Jr. (Appellant) appealed from the judgment of

sentence entered following his guilty pleas to crimes related to his

dissemination of child pornography.     Appellant’s counsel originally filed in

this Court 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 denied counsel’s petition and remanded for the

filing of new briefs on the issue of whether Appellant’s convictions for

dissemination of four items of child pornography should have merged for

sentencing purposes with his convictions for possession of those same four

images.   See Commonwealth v. Peoples, 376 MDA 2016 (Pa. Super.

December 23, 2016) (unpublished memorandum).             After review of those



* Retired Senior Judge assigned to the Superior Court.
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briefs, we conclude that the convictions do merge for sentencing purposes.

Accordingly, although we affirm his judgment of sentence in all other

respects,   we   vacate   four   of   his   sentences   for   possession   of   child

pornography.

     Appellant pled guilty in 2004 to various crimes at two docket numbers.

Relevant to the issue before us, Appellant pled guilty in case number 337 to

four counts of dissemination of child pornography under 18 Pa.C.S.

§ 6312(c)(1), and four counts of possession of child pornography under 18

Pa.C.S. § 6312(d)(1),1 based upon his possession and internet transmission

of the four images with file names “hayley016.jpg,” “hayley017.jpg,”

“hayley018.jpg,” and “felisha13.jpg.”        In 2005, Appellant was sentenced,

inter alia,2 to an aggregate sentence of 72 to 180 months of imprisonment

on the dissemination counts and concurrent sentences of six to 12 months

on each of the possession counts.

     After numerous procedural missteps discussed at length in our prior

memorandum, Appellant’s direct appeal came before us in 2016.                   Upon

review of counsel’s Anders brief, we agreed that there was no merit to the

claim that Appellant was not sentenced in accordance with the plea

agreement, nor to most claims that his convictions should have merged for


1
   The version of the statute under which Appellant was convicted was
effective from January 21, 2003 to September 13, 2009.
2
 Appellant’s aggregate sentence for all convictions at both docket numbers
amounted to 176 to 424 months of incarceration.
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sentencing purposes.    However, we determined that the claim that the

possession and dissemination convictions based upon the same four images

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

frivolous.”   Peoples, 376 MDA 2016 (unpublished memorandum at 15).

Rather, we concluded “that counsel is able to put forward good-faith

arguments that Appellant is serving an illegal sentence.” Id. Appellant and

the Commonwealth have filed their briefs, and the issue is ripe for

determination.

      We begin by reiterating the applicable law.

      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



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      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S. § 9765.

      The applicable statute prohibiting possession of child pornography

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).

      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).

      Contrary to the Commonwealth’s argument, see Commonwealth’s

Brief at 11-12, it is clear that all of the elements of possession under

subsection (d)(1) are included within the elements of dissemination under

subsection (c)(1). We agree with Appellant that, from the plain language of

the statutes, one simply cannot be guilty of disseminating child pornography

without also being guilty of possessing it. Appellant’s Brief at 9.

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      To determine whether Appellant legally received separate sentences

for possessing the four images that he disseminated, the question we must

decide is whether Appellant’s possession and dissemination were separate

criminal acts as to each image, or whether the possession and dissemination

of each was a single criminal act.   Our decision is guided by the following

principles.

      “When considering whether there is a single criminal act or multiple

criminal acts, the question is not whether there was a break in the chain of

criminal activity.” Commonwealth v. Martinez, 153 A.3d 1025, 1030 (Pa.

Super. 2016) (citation and internal quotation marks omitted). Rather, “[t]he

issue is whether the actor commits multiple criminal acts beyond that which

is necessary to establish the bare elements of the additional crime….” Id.

(citation and internal quotation marks omitted).       Importantly, “[w]hen

determining whether separate crimes constitute a single criminal act, this

Court has stated that we should look to the elements of the crimes involved

as charged by the Commonwealth.” Commonwealth v. Kimmel, 125 A.3d

1272, 1276 (Pa. Super. 2015) (en banc) (citations and internal quotation

marks omitted).

      The analysis in the Kimmel case is instructive. In that case, Kimmel

received separate sentences for driving under the influence (DUI) and

fleeing while DUI, and argued that the former should have merged with the

latter. The convictions were based upon the following facts.

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      Officer Jason Beltz conducted a traffic stop based on his
      suspicion that [Kimmel] was driving while intoxicated. [Kimmel]
      stopped his truck and exhibited signs of intoxication. [Kimmel]
      then became combative, and the officer took [Kimmel’s] keys.
      [Kimmel] then returned to his truck, locked the door, and
      retrieved a second set of keys from his pocket. At this juncture,
      [Kimmel] chose to again drive the truck while intoxicated while
      fleeing from Officer Beltz, and [Kimmel] was arrested at the
      conclusion of his drunken flight. The circumstances here are
      straightforward: there was the initial DUI, followed by a traffic
      stop, followed by [Kimmel’s] choosing to flee while DUI.

Kimmel, 125 A.3d at 1276 (citations omitted). This Court held that there

were separate criminal acts, and hence merger did not apply, as “the

affidavit of probable cause, the criminal complaint, and the criminal

information reveal[ed] that [Kimmel] was charged with committing DUI and

charged with felony fleeing because, after the traffic stop, he fled while in

violation of the DUI statute.” Id. at 1277 (emphasis and citation omitted).

      We have found no authority addressing the issue as to possession and

dissemination under 18 Pa.C.S. § 6312.           The most analogous factual

scenario on which there is case law involves possession and delivery of

controlled substances under 35 P.S. § 780-113. In such instances, we have

held that sentence merger does apply, as “[t]he 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.”

Commonwealth v. DeLong, 879 A.2d 234, 237 n.2 (Pa. Super. 2005)

(citations omitted).




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     For example, in Commonwealth v. Eicher, 605 A.2d 337, 342 (Pa.

Super. 1992), Eicher sold 7.1 grams of cocaine to an undercover officer. A

subsequent search of Eicher’s home turned up an additional 74.74 grams of

cocaine. His sentences for possession, possession with intent to deliver, and

delivery as to the 7.1 grams merged for sentencing purposes, “because the

possession, possession with the intent to deliver and the delivery of the

identical substance arose out of the same transaction and all were premised

on the same set of facts.” Id. at 353. However, a separate sentence for

possession of the 74.74 grams found at his residence was appropriate

because the “conviction for the possession of the 74.74 grams of cocaine

arose out of a completely different set of additional facts which were

unrelated to and which were unnecessary to sustain appellant’s delivery

conviction.”3 Id.

     Turning to the instant case, the Commonwealth maintains that

Appellant’s possession and dissemination of the same four images were

separate criminal acts. First, the Commonwealth reiterates the principle that

we acknowledged in our prior memorandum: that each viewing of an image

of child pornography revictimizes the child depicted. Commonwealth’s Brief

at 5 (citing Davidson, 938 A.2d at 219); see also Peoples, 376 MDA 2016


3
  Comparing Eicher to the instant case demonstrates why there is no doubt
that Appellant’s convictions at case number 337, which were based upon the
four images he disseminated, do not merge with his convictions at case
number 338, which were based upon eight different images retrieved in the
subsequent search of Appellant’s computer.
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15. (unpublished memorandum at 15). Because of the permanent nature of

the images of pornography, the child once exploited by the possessor is

subject to a new exploitation by the person to whom the image is

disseminated.   “It follows that each possession and each dissemination

should be considered as a separate act.” Commonwealth’s Brief at 6.

     Looking to the criminal information, criminal complaint, and affidavit of

probable cause, the Commonwealth charged Appellant with disseminating

four specific images “on or about” January 16, 2004, “at approximately 1616

hours.”   Criminal Complaint, 1/20/2004, at 1-2; see also Affidavit of

Probable Cause, 1/20/2004, at 3-4; Information, 5/21/2004, at 1-2

(unnumbered). It also charged him for possessing those four images on his

computer hard drive “on or about said date.”            Criminal Complaint,

1/20/2004, at 2.

     Nothing in the charging documents here suggests that Appellant’s

possession of the images was anything more than incidental to his

dissemination of them. In secondarily charging Appellant with possession of

each image that he disseminated, the Commonwealth did not include any

factual allegations to suggest that he possessed the images at a time other

than when he disseminated them, or for a purpose other than their

dissemination. The crimes, as charged, are one criminal act akin to Eicher’s

possession and delivery of the same 7.1 grams of cocaine, rather than




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separate incidents like Eicher’s additional possession of 74 more grams of

cocaine, or Kimmel’s pre-stop DUI and post-stop fleeing while DUI.

      Courts in other jurisdictions presented with charges similar to those in

the instant case have held that the crimes as charged stemmed from a

single criminal act.    See State v. Bertsch, 707 N.W.2d 660, 666 (Minn.

2006) (“Because there is no evidence in the record that demonstrates

Bertsch possessed the files named in the possession counts for a separate

purpose than the files that were disseminated, the district court’s implicit

determination that the dissemination and possession offenses were not a

single behavioral incident is erroneous….”); State v. Kamaka, 277 S.W.3d

807, 812 (Mo. Ct. App. 2009) (“Because Kamaka did not perform a different

act or form a new mens rea in retaining the same file that was disseminated

from his computer, his conduct constituted the ‘same conduct’ for purposes

of double jeopardy analysis.”).

      Therefore, we conclude that, based upon the way the crimes are

charged   at   docket   number    CP-35-CR-0000337-2004,    Appellant’s   four

convictions for possession of child pornography merge for sentencing

purposes with his convictions for disseminating child pornography.

      Our holding is specific to the facts charged by the Commonwealth in

this case, and is not a generally-applicable determination that possession

merges with dissemination for sentencing purposes. If the Commonwealth

were to charge a defendant with possessing an image of child pornography

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at a time or for a purpose different from his disseminating it, that could

constitute two different criminal acts and defeat merger. But those are not

the   charges   the   Commonwealth     made   in   this   case.   Here,   the

Commonwealth charged Appellant with both possessing and disseminating

the same images at the same time on the same date. That constitutes one

criminal act per image. Accord Bertsch, 707 N.W.2d at 666 (“We do not

hold that possession is always an included offense of dissemination, but the

manner in which the state charged the offenses here makes it impossible to

distinguish one offense from the other….” (footnote omitted)).

      Accordingly, we vacate Appellant’s four six-to-12-month sentences at

counts five through eight of that case.4 Appellant’s judgment of sentence is

affirmed in all other respects.

      Judgment of sentence affirmed in part and vacated in part. Motion to

discontinue is dismissed as moot. Jurisdiction relinquished.




4
  Because those four sentences were ordered to run concurrently with each
other and with the dissemination sentences, our ruling does not disturb the
overall sentencing scheme. Thus, there is no need for us to remand the
case for resentencing. See, e.g., Commonwealth v. Melvin, 103 A.3d 1,
56 (Pa. Super. 2014) (“This Court has the authority to correct an illegal
sentence directly rather than to remand the case for re-sentencing so long
as we do not disrupt the trial court’s sentencing scheme in doing so.”).
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 5/22/2017




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