J-S72035-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

ROBERT JOHN PEOPLES, JR.,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

 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, 
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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. 
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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).
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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 nonfrivolous 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 
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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 complied3 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.
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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 
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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 
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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.
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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. 
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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. 
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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 
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limited to, telephone, wire, radio, electromagnetic, photoelectronic or photooptical 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. 
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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 
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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 
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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.
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Petition to withdraw denied. Case remanded with instructions. Panel 

jurisdiction retained.