J-S51039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW W. SWANGER,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 

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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 

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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). 

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

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 seconddegree 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.

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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 illwill.” 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. 

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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 

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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

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8 Swanger does not presently claim ineffective assistance of direct appeal 

counsel for failing to raise this claim.