J-S51039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW W. SWANGER,                        :
                                               :
                       Appellant               :       No. 117 MDA 2019

            Appeal from the PCRA Order Entered December 20, 2018
                 in the Court of Common Pleas of Union County
              Criminal Division at No(s): CP-60-CR-0000058-2015

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED DECEMBER 12, 2019

        Matthew W. Swanger (“Swanger”) appeals from the Order denying his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        In a prior appeal, this Court set forth the underlying history of this case

as follows:

        On April 13, 2015, the Commonwealth, through the Pennsylvania
        Office of the Attorney General, filed an [I]nformation charging
        [Swanger] with five counts of sexual abuse of children, and one
        count of criminal use of a communication facility. On October 14,
        2015, the Commonwealth filed a [M]otion to amend the criminal
        [I]nformation to add five counts of child pornography to the
        charges. On October 26, 2015, the trial court granted the
        [M]otion and the Commonwealth filed the amended [I]nformation
        on October 27, 2015. On December 15, 2015, the first day of
        trial, [Swanger] filed a [M]otion to quash the amended
        [I]information. In relevant part, [Swanger] maintained that,
        because Pennsylvania Attorney General Kathleen Kane was
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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       suspended from the practice of law on September 21, 2015, her
       prior appointment of Deputy Attorney General Lawrence Cherba
       to sign [I]nformations rendered [Swanger’s] amended
       [I]nformation invalid.    (See Appellant’s Motion to Quash
       Information, 12/15/15, at unnumbered page 2). The trial court
       denied the [M]otion the same day, (see N.T. Trial, 12/15/15, at
       4-6), and [Swanger’s] case proceeded to a two-day jury trial. At
       trial, the Commonwealth presented the following evidence.

       Special Agent Brittney J. Baughman [(“Special Agent
       Baughman”)], while a member of the child predator section of the
       Pennsylvania Office of the Attorney General, conducted
       undercover internet investigations of individuals soliciting minors
       for    sexual     purposes    and     intercepted   online    child
       pornography. (See id. at 41-42). In conducting her investigation
       of this case, Special Agent Baughman utilized a police version of
       Ares, a file sharing program used to share pornographic materials,
       between its users. (See id. at 48). On October 16, 2014, Special
       Agent Baughman identified internet protocol (IP) address
       67.214.7.164, which belonged to [Swanger], as containing
       twenty-four potential child pornography files, and downloaded five
       of them by directly connecting to [Swanger’s] computer using
       Ares. (See id. at 53, 76). The files contained names associated
       with young children being raped. (See id. at 63-69).

       Special Agent Brittany A. Lauck [(“Special Agent Lauck”),] of the
       child predator section of the Office of the Attorney General[,]
       reviewed the files downloaded by Special Agent Baughman, and
       prepared the search warrant for [Swanger’s] home, which she,
       fellow members of the child predator section, and computer
       forensics agents executed on December 23, 2014. (See id. at 86-
       87). Special Agent Lauck seized [Swanger’s] laptop, which
       contained child pornography and the Ares program. (See id. at
       92-93).

       [Swanger] agreed to an audio[-]taped interview at the scene,
       prior to which he was read his Miranda[2] warnings. (See id. at
       93-94; see also Commonwealth’s Exhibit 7-A, Transcript of Police
       Interview, at 1). During the interview, [Swanger] admitted to


____________________________________________


2   See Miranda v. Arizona, 384 U.S. 436 (1966).


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     downloading the child pornography onto his laptop.             (See
     Commonwealth’s Exhibit 7-A, at 19-26).

     Special Agent Braden Cook, [a] senior supervisory agent with the
     Office of the Attorney General, computer forensic unit, conducted
     the forensic analysis of [Swanger’s] computer. (See N.T. Trial,
     12/15/15, at 117-18). The analysis revealed that pornographic
     files were located on the computer hard drive, under the user
     profile name, “Matthew.” (Id. at 127, 129, 146). The files were
     available for sharing using Ares, and the child pornography
     downloaded by Special Agent Baughman was from Swanger’s
     laptop. (See id. at 129, 154-55).

     At trial, [Swanger] exercised his constitutional right not to testify
     on his own behalf, and did not present any witnesses. On
     December 16, 2015, the jury returned a verdict convicting
     [Swanger].... On March 24, 2016, the trial court sentenced
     [Swanger] to an aggregate term of not less than twenty-eight nor
     more than fifty-seven years of incarceration. The court denied
     [Swanger’s] post-sentence [M]otion. [Swanger] timely appealed.

Commonwealth v. Swanger, 159 A.3d 59 (Pa. Super. 2016) (unpublished

memorandum at 1-4) (footnote added). On direct appeal, this Court affirmed

Swanger’s judgment of sentence. See id. (unpublished memorandum at 11).

The Pennsylvania Supreme Court denied Swanger allowance of appeal.

Commonwealth v. Swanger, 168 A.3d 1237 (Pa. 2017).

     On April 10, 2018, Swanger timely filed the Petition for PCRA relief

underlying the instant appeal. Following an evidentiary hearing, the PCRA

court entered an Order denying Swanger relief. Thereafter, Swanger filed the

instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

     Swanger presents the following claims for our review:




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      I.     Did [] Swanger’s trial counsel provide ineffective assistance
             because counsel failed to object to the jury instruction
             charging an offense that was materially different from the
             offense charged in the Amended Information?

      II.    Did [] Swanger’s trial counsel provide ineffective assistance
             because counsel did not make a 10-day post-sentence
             [M]otion to challenge the discretionary aspects of []
             Swanger’s sentence?

      III.   Did [] Swanger’s [appellate] counsel provide ineffective
             assistance because counsel did not challenge the
             discretionary aspects of [] Swanger’s sentence on direct
             appeal?

      IV.    Did [] Swanger’s appellate counsel provide ineffective
             assistance in violation of the Sixth Amendment because he
             did not raise any constitutional claims in the direct appeal?

      V.     Does [] Swanger’s aggregate sentence of 28 to 57 years’
             imprisonment constitute cruel and unusual punishment[,] in
             violation of the United States Constitution and Pennsylvania
             Constitution?

      VI.    Is the statute, 18 Pa.C.S.[A.] § 6312, unconstitutional as
             applied in [] Swanger’s case?

Brief for Appellant at 4.

      As our Supreme Court has explained,

      [u]pon reviewing an order in a PCRA matter, we must determine
      whether the findings of the PCRA court are supported by the
      record and whether the court’s legal conclusions are free from
      error. The findings of the PCRA court and the evidence of record
      are viewed in a light most favorable to the prevailing party. The
      PCRA court’s credibility determinations, when supported by the
      record, are binding; however, this court applies a de novo
      standard of review to the PCRA court’s legal conclusions. We must
      keep in mind that the petitioner has the burden of persuading this
      Court that the PCRA court erred and that such error requires relief.
      Finally, this Court may affirm a valid judgment or order for any
      reason appearing of record.


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Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).

      Swanger first claims that his trial counsel rendered ineffective assistance

by failing to object to the jury instruction because it “was materially different

from the offense charged in the Amended Information.” Brief for Appellant at

25. Swanger asserts that

      [t]he Amended Information contains five counts of “[s]exual
      [a]buse of [c]hildren[,]” in violation of 18 Pa.C.S.[A.] § 6312(c)[,]
      for distribution of child pornography[;] and five counts of “[s]exual
      [a]buse of [c]hildren[,]” in violation of 18 Pa.C.S.[A.] § 6312(d)[,]
      for possession of child pornography. The Amended Information
      properly charged each offense as a third-degree felony[,] because
      this was [] Swanger’s first offense.[FN]             18 Pa.C.S.[A.]
      § 6312(d.1)(2)(i).


         []Swanger was previously convicted of burglary[,] but this is
      [FN]

      not considered a prior offense for purposes of grading a [Section]
      6312 offense. See 42 Pa.C.S.[A.] §§ 9701-9799.9 at Section
      9718.2 (sentence for sex offenses).

Id. (footnote in original). Swanger asserts that he was convicted of sexual

abuse of children under 18 Pa.C.S.A. § 6312(d.1)(3), which is a third-degree

felony.      Id. at 25-26.   According to Swanger, the trial court improperly

charged the jury on sexual abuse of children, as a second-degree felony,

where the Commonwealth never amended the Information, thereby violating

his right to due process. Id. at 27-28. Swanger argues that his trial counsel

rendered ineffective assistance by not objecting to the jury charge; counsel

had no rational basis for failing to object to the jury charge; and that but for



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counsel’s ineffectiveness, he would not have been convicted of a second-

degree felony. See id. at 29-30.

      To be entitled to relief on an ineffectiveness claim, a petitioner must

prove that the underlying claim is of arguable merit; counsel’s performance

lacked a reasonable basis; and counsel’s ineffectiveness caused him prejudice.

Commonwealth v. Solano, 129 A.3d 1156, 1162 (Pa. 2015).

      Prejudice in the context of ineffective assistance of counsel means
      demonstrating there is a reasonable probability that, but for
      counsel’s error, the outcome of the proceeding would have been
      different. This standard is the same in the PCRA context as when
      ineffectiveness claims are raised on direct review. Failure to
      establish any prong of the test will defeat an ineffectiveness claim.

Id. at 1162-63 (citations omitted). “A claim has arguable merit where the

factual   averments,   if   accurate,    could   establish   cause   for   relief.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc).

      Under the sexual abuse of children statute, possession of child

pornography is generally graded as a third-degree felony. See 18 Pa.C.S.A.

§ 6312(d.1)(2)(i). However, the statue also provides as follows:

      When a person commits an offense graded under paragraph (1)
      or (2)(i)[,] and indecent contact with the child as defined in [18
      Pa.C.S.A. §] 3101 (relating to definitions) is depicted, the grading
      of the offense shall be one grade higher than the grade specified
      in paragraph (1) or (2)(i).

18 Pa.C.S.A. § 6312(d.1)(3).

      At the PCRA hearing, the PCRA court addressed and rejected Swanger’s

claim as follows:




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       [T]he offense charged in the Information is exactly what the
       [c]ourt charged the jury with[,3] based on the standard jury
       instructions[,] which the [c]ourt finds were appropriate.[4]

             Based on our current law, the grading in that section is
       dependent on one additional fact, which doesn’t mean it’s a new
       crime. It’s a new fact. And that is whether the video depicted
       indecent contact with a child. And indecent contact is the touching
       of the sexual or other intimate parts of the children [sic] for the
       purpose of sexual gratification of the viewer.

             In this case, [Swanger’s trial counsel] testified that the
       videos … obviously depicted that. It’s not like [Swanger] can claim
       surprise. If he didn’t look at them, that was his choice. That is a
       jury question to determine the grading. The [c]ourt determined
       the grading based on the jury’s verdict. [Swanger] cannot claim
       surprise that that [sic] was not part of the charge, because the
       grading had to be determined.

             Without the jury determining that fact, the [c]ourt would
       have been unable to determine whether it was a Felony 2 or a
       Felony 3 for that matter. So there is no merit to the first claim.




____________________________________________


3 In the Amended Criminal Information, Swanger was charged with multiple
counts of possession of child pornography “depicting child under the age of 18
years of age engaging in a prohibited sexual act or in the simulation of such
act ….” Amended Criminal Information, 10/30/15. In its charge to the jury,
the trial court instructed the jury to determine whether the depicted act
involved the touching of the sexual or other intimate parts of the child. N.T.
12/16/15, at 41 (instructing the jury to determine whether they find, beyond
a reasonable doubt, “that the prohibited sexual act depicted or simulated was
an acting involving any touching of the sexual or intimate parts of the child).

4 See Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super. 2007)
(stating that where the trial court’s instructions track the Pennsylvania
Suggested Standard Criminal Jury Instructions, it is presumed such
instructions are an accurate statement of the law).



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N.T., 12/19/18, at 65-66 (footnotes added). We agree with the PCRA court’s

determination that there is no arguable merit to Swanger’s underlying claim.

See id. Consequently, Swanger’s claim of ineffective assistance of counsel

fails on this basis. See Solano, 129 A.3d at 1163.

      In his second claim, Swanger argues that his trial counsel rendered

ineffective assistance by failing to file a post-sentence motion challenging the

discretionary aspects of his sentence.    Brief for Appellant at 30.     Swanger

asserts that the trial court abused its discretion by sentencing him to 28 to 57

years in prison. Id. at 31. In support, Swanger states that he was convicted

of “only five instances of child pornography[,]” and this is his first offense.

Id. at 32. According to Swanger, the trial court’s on-the-record statement of

its reasons for the sentence “do not justify this excessive and disproportionate

sentence.” Id. Further, Swanger argues that the trial court erred when it

stated that he “can be grateful, probably, that the Commonwealth didn’t

charge an offense for each child victim.” Id. Additionally, Swanger contends

that the court failed to consider his individual circumstances, and the fact that

he has family support. Id. Swanger asserts that his trial counsel had no

reasonable basis for failing to file a post-sentence motion, and that he suffered

prejudice resulting from counsel’s failure. Id. at 33-34.

      Similarly, in his third claim, Swanger argues that his direct appeal

counsel   rendered   ineffective   assistance   by   failing   to   challenge   the

discretionary aspects of his sentence during his direct appeal. Id. at 34.


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       Assuming, arguendo, that Swanger has presented a substantial

question,5 we conclude that he has failed to demonstrate arguable merit to

his underlying claim of an abuse of discretion by the sentencing court. The

trial court has discretion within legal limits when sentencing a defendant, and,

absent an abuse of that discretion, we will not disturb its sentence.

Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011).                An abuse of

discretion occurs where “the record discloses that the judgment exercised

was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-

will.” Id. (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).

The sentencing judge does not have to give a “lengthy discourse” explaining

its reasons for imposing a sentence.6 Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa. Super. 2010). However, “the record as a whole must reflect

the sentencing court’s consideration of the facts of the crime and character of

the offender.” Id.

       As the PCRA court explained in its Opinion,

            The sentence was in the standard range. The standard
       range gave no room for discretion whatsoever for the [c]ourt.
____________________________________________


5 A challenge to the discretionary aspects of sentencing requires the appellant
to demonstrate that his claim raises a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Grays, 167 A.3d 793, 816 (Pa. Super. 2017).

6 The Sentencing Code provides that “the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A.
§ 9721(b).

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     Based on [Swanger’s] record, the standard range was 5 years,
     period. Not a day less[;] not a day more. The [c]ourt sentenced
     in every single case in the standard range. The only exception to
     that is on Count 6, … and that was criminal use of a
     communication facility. And there, the standard range … was 24
     to 36 months. … The [c]ourt did sentence to the upper range of
     the standard range and gave the maximum.

           As far as the consecutive or concurrent [sic], that is this
     court’s discretion.    The [c]ourt reviewed the presentence
     investigation report dated March 14, 2016….

                               *         *   *

           Even if trial [c]ounsel would have filed a 10-day post[-]
     sentencing motion, it would have been denied. … The [c]ourt
     considered the nature of the offense, [Swanger’s] criminal record,
     and the remaining aspects of the presentence report in fashioning
     the sentence. And the sentence was in the standard range….

N.T., 12/19/18, at 66-67.          The   record supports the   PCRA court’s

determination. See N.T. (Sentencing), 3/21/16, at 10 (wherein the trial court

expressly referenced Swanger’s pre-sentence investigation report); see also

Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014)

(recognizing that “[w]hen … the trial court has the benefit of a pre-sentence

report, we presume that the court was aware of relevant information regarding

the defendant’s character and weighed those considerations along with any

mitigating factors.”); Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.

Super. 2008) (stating that “[l]ong standing precedent of this Court recognizes

that 42 Pa.C.S.[A.] § 9721 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.”).       As we discern no


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arguable merit to Swanger’s underlying claim, we cannot grant him relief on

his second and third ineffective assistance of counsel claims. See Solano,

129 A.3d at 1163.

       In his fourth claim, Swanger argues that his appellate counsel rendered

ineffective assistance by not raising any constitutional claims on direct appeal.

Brief for Appellant at 36. Swanger baldly asserts that his Sixth, Eighth and

Fourteenth Amendment rights under the United States Constitution were

violated, “as well as his co-extensive rights under the Pennsylvania

Constitution[.]”     Id. at 39.     However, Swanger does not explain how his

constitutional rights were violated, or where, in the record, these violations

took place. “A constitutional claim is not self-proving, and we will not attempt

to divine an argument on an [a]ppellant’s behalf.”         Commonwealth v.

Spotz, 18 A.3d 244, 282 (Pa. 2011). Thus, we are constrained to conclude

that Swanger’s ineffectiveness claim is waived for lack of development. See

id.

       In his fifth claim, Swanger argues that his aggregate sentence of 28 to

57 years in prison constitutes cruel and unusual punishment.           Brief for

Appellant at 39.7 We review this claim with the following in mind.

       [T]he guarantee against cruel punishment contained in the
       Pennsylvania Constitution, Article 1, Section 13, provides no
____________________________________________


7 An individual’s right to be free from cruel and unusual punishment is a
nonwaivable challenge to the legality of the sentence. Commonwealth v.
Seskey, 86 A.3d 237, 241 (Pa. Super. 2014).


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     broader protections against cruel and unusual punishment than
     those extended under the Eighth Amendment to the United States
     Constitution. The Eighth Amendment does not require strict
     proportionality between the crime committed and the sentence
     imposed; rather, it forbids only extreme sentences that are
     grossly disproportionate to the crime.

     In Commonwealth v. Spells, [] 612 A.2d 458, 462, 417 Pa.
     Super. 233 (1992) (en banc), this Court applied the three-prong
     test for Eighth Amendment proportionality review set forth by the
     United States Supreme Court in Solem v. Helm, 463 U.S. 277,
     103 S. Ct. 3001, 77 L. Ed. 2d 637[] (1983):

        [A] court’s proportionality analysis under the Eighth
        Amendment should be guided by objective criteria, including
        (i) the gravity of the offense and the harshness of the
        penalty; (ii) the sentences imposed on other criminals in the
        same jurisdiction; and (iii) the sentences imposed for
        commission of the same crime in other jurisdictions.

     Spells, 612 A.2d at 462 (quoting Solem, 463 U.S. at 292[]).
     However, this Court is not obligated to reach the second and third
     prongs of the Spells test unless a threshold comparison of the
     crime committed and the sentence imposed leads to an inference
     of gross disproportionality.

Commonwealth v. Lankford, 164 A.3d 1250, 1252-53 (Pa. Super. 2017)

(some citations and quotation marks omitted).

     Our review of the record discloses that at the PCRA hearing, Swanger

presented no cases regarding the proportionality of the sentence he received,

as compared to those received by defendants in Union County, or in

Pennsylvania. Thus, Swanger failed to establish at the PCRA hearing that his

sentence constitutes cruel and unusual punishment. See id. Further, we are

cognizant of this Court’s observation that “[s]exual crimes against children

unmistakably continue to pose a significant harm to the physical and


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emotional well-being of children. Categorically, they remain ‘crimes of great

severity.’”   Commonwealth v. Elia, 83 A.3d 254, 269 (Pa. Super. 2013)

(citation omitted). Because Swanger has failed to establish arguable merit to

his underlying claim, we cannot grant him relief.     See Solano, 129 A.3d at

1163.

        In his sixth claim, Swanger argues that 18 Pa.C.S.A. § 6312 is

unconstitutional, as applied to his case. Brief for Appellant at 44. Swanger

contends that “the [c]ourt cannot rule out the possibility on the evidence

presented at trial that the jury convicted [] Swanger of possessing and

distributing computer-generated images of children, not real minors.” Id. at

46.   According to Swanger, it cannot be concluded, based upon the jury’s

verdict and the jury’s answer to the question regarding this fact, that the

images depicted real children. Id.

        Initially, we observe that, to be eligible for relief under the PCRA, a

petitioner must plead and prove that the allegation has not been waived. 42

Pa.C.S.A. § 9543(a)(3). An issue is waived “if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or

in a prior state post[-]conviction proceeding.” Id. § 9544(b).

        Our review discloses that Swanger challenged the constitutionality of

the statute for the first time before the PCRA court.      Swanger could have




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raised this claim on direct appeal, but failed to do so. 8 Pursuant to Section

9544(b), the issue is waived, and Swanger is not eligible for relief under the

PCRA. See id. §§ 9543(a)(3), 9544(b).

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2019




____________________________________________


8 Swanger does not presently claim ineffective assistance of direct appeal
counsel for failing to raise this claim.

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