J-A12006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHANE D. LAFFERTY

Appellant No. 573 WDA 2015

Appeal from the Judgment of Sentence Dated February 24, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0004063-2014

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 27, 2017

Appellant, Shane D. Lafferty, appeals from the judgment of sentence 

imposed after he was convicted of two counts of child pornography.1 We 

affirm.

An undercover investigation into the possession and distribution of 

child pornography by Pennsylvania State Police’s Southwest Computer Crime 

Task Force led the police to obtain a warrant to search an address on 

Fallowfield Avenue in Pittsburgh. Police executed the warrant on 

October 29, 2013. When no one answered the door after they knocked 

loudly for over a minute, police kicked in the door. They found Appellant 

exiting an upstairs bedroom. Appellant’s laptop computer was on the bed 

____________________________________________

1 18 Pa.C.S. § 6312(d).
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with a file sharing program running. No other person was in the room at 

that time.

A forensic investigation of the laptop computer confirmed that it 

contained child pornography. As the trial court noted:

Appellant conceded that his computer contained child 

pornography but alleged that others had access to the computer 

and may have downloaded child pornography without his 

consent or knowledge. The parties also stipulated that between 

April 5, 2013, and June 27, 2013, Appellant did not have access 

to his computer.

Trial Ct. Op. at 2. At the time Appellant’s laptop was seized, he participated 

in a tape-recorded interview by the police in which he denied responsibility 

for the child pornography on the laptop. N.T., 2/17/15, at 154, 167-69. 

Appellant was arrested in March 2014:

Officer Dennis Baker of the City of Pittsburgh Police Department 

testified that on March 9, 2014 he was dispatched to a residence 

on Fallowfield Avenue to execute an arrest warrant for Appellant. 

Officer Baker knocked on the door and a man answered and 

identified himself as Brian Wells. The officer identified Appellant 

in court as the individual who said he was Brian Wells. “Brian 

Wells” told the officer that Appellant resided in the home but was 

not present at that time. Officer Baker asked Appellant to 

provide any identification, such as a driver’s license or a piece of 

mail with his name on it, but Appellant could not produce these 

items. Appellant was asked his date of birth by three different 

officers and Appellant gave three different responses. Officer 

Baker arrested him, at which point Appellant said, “I’m Shane 

Lafferty. I’m the one you’re looking for.”

Trial Ct. Op. at 5 (citations omitted).

The trial court described Appellant’s trial as follows:

The Commonwealth presented evidence to explain to the jury 

the procedure the State Police used to determine the presence of 
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child pornography on the laptop computer owned by Appellant. 

Corporal [John] Roche testified that he created a PowerPoint 

presentation to explain his forensic examination of Appellant’s 

computer. The PowerPoint was used as demonstrative evidence 

but was never offered or admitted into evidence. 

Corporal Roche examined Appellant’s computer and found 

approximately forty-three downloads with Appellant’s name 

associated with it. Corporal Roche listed the downloads 

chronologically and testified that the activity of creating 

downloaded files ended on March 10, 2013 and resumed on 

June 29, 2013. The Corporal’s search results also included a 

handful of downloads associated with either Wendy Cross or Amy 

Cross, other residents of Appellant’s home. None of the 

downloads associated with Wendy or Amy Cross contained child 

pornography.

Corporal Roche gave as an example of the computer’s activity 

the files indexed on Appellant’s computer on July 9, 2013. 

Corporal Roche testified that on July 9, 2013, at 4:50 p.m., a 

text file was created on Appellant’s computer called “Shane’s 

food stamp app.number.text.” File sharing of child pornography 

occurred on the same date at 4:37 p.m. and at 5:05 p.m. 

Corporal Roche concluded that the same person who created the 

document “Shane’s food stamp app.number.text” was at the 

same time sharing child pornography through BitTorrent.[2] . . .

Appellant called several witnesses in an effort to cast blame on 

David Cross[, Amy Cross’ brother,] for the child pornography on 

Appellant’s computer. Thomas Betker testified that he lived at 

[Appellant’s address] in the summer of 2013 with his girlfriend 

Jordan Thomas, Appellant, Amy Cross (Appellant’s ex-girlfriend), 

and her mother Wendy Cross, and said that during that summer 

David Cross periodically resided there as well. Betker testified 

that he never saw Appellant access child pornography, that other 

individuals had access to Appellant’s laptop computer during the 

relevant time frame, and that one of those individuals was David 

Cross. David would take the computer to a more private area of 

the home when he used it and at one point indicated a desire to 

destroy the computer. Jordan Thomas and a neighbor, Bridget 

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2

“BitTorrent is a network that the State Police monitor for the distribution of 

child pornography.” Trial Ct. Op. at 3.
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Aber, testified similarly. In addition, Aber testified that David 

Cross confided to her that he had a sexual predilection toward 

children.

Amy Cross, David’s sister, gave testimony that mirrored that of 

Betker, Thomas and Aber, but added that she had observed 

David Cross looking at child pornography when he was fourteen 

years old. Amy Cross testified that David Cross has prescription 

medication for a medical condition but he told her that he 

doesn’t like to take it because it negatively affects his ability to 

control sexual urges he has towards children.

Nathaniel Wells, a high school friend of David Cross, testified 

that he observed David Cross looking at child pornography 

twelve years ago when Cross would have been seventeen years 

old. Wells further testified that he and Cross argued on 

Facebook over what Wells referred to as Cross’ use of scripture 

to justify Cross’ pedophilia.

David Cross testified on rebuttal under a grant of immunity. He 

denied using Appellant’s computer to access child pornography. 

He denied having any conversation with Aber regarding an 

interest in having sex with young girls. He denied having been 

caught looking at child pornography by Wells twelve years ago. 

He stated that he was not at the Fallowfield address on the 

relevant dates and at the relevant times: July 3, 2013, at 6:00 

a.m., on July 8, 2013 at 3:00 a.m., or on July 9, 2013 at 12:35 

p.m. Further, he stated that he resided at the Fallowfield 

address in 2012 but had moved out by Christmas 2012 and was 

not residing there during the summer of 2013.

Amy Cross was called as a surrebuttal witness. She testified 

that David Cross once explained to her that a person interested 

in child pornography can use a “Pedobear” which is an otherwise 

innocuous image such as the cartoon pony from “My Little Pony” 

to express that person’s pedophilic predilections. 

Trial Ct. Op. at 4-7 (footnotes and citations omitted; some formatting 

altered).

One of the issues in this appeal concerns the following events that 

occurred during jury deliberations. In the course of the deliberations, the 
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jury twice asked to hear the tape of Appellant’s interview by the police on 

the day the laptop was seized. That tape was played for the jury by one of 

the Commonwealth’s witnesses, Corporal Gerhard Goodyear, a State Police 

officer who had testified during the trial as an expert on computer forensics 

and peer-to-peer file sharing investigations. See Trial Ct. Op. at 3-4, 7-8. 

The trial court recounted these events as follows:

Corporal Goodyear entered the jury room on two separate 

occasions to play an audio file of the police interview with 

Appellant that was on the Commonwealth’s laptop. Counsel was 

informed that Corporal Goodyear was going to play the audio for 

the jury but counsel mistakenly presumed a technician from the 

Office of the District Attorney, and not the Trooper who had 

testified, would be the individual who entered the jury room.7

7 [The trial c]ourt’s practice at the time was that, when 

evidence contained on a Commonwealth laptop was 

requested by a jury, with the consent of counsel a 

technician from the Office of the District Attorney would 

enter the jury room with the tipstaff to operate the laptop.

After learning that the Trooper had entered the jury room to play 

the audio file requested by the jury, Appellant’s counsel placed 

an objection o[n] the record. Counsel for Appellant was given an 

opportunity to develop a record by calling Corporal Goodyear 

and th[e trial c]ourt’s tipstaff, George Nichols, to explain the 

circumstances of how a Commonwealth witness ended up in the 

jury room. Nichols testified that on the first occasion, Corporal 

Goodyear entered the jury room and played the audio file for the 

jury without Nichols in the room. The second time the jury 

asked to hear the interview, Nichols testified that the Corporal 

played the audio file for the jury in his presence. Nichols 

testified that he did not hear the jury ask the Trooper any 

questions.

Corporal Goodyear testified that when he was in the jury room 

the first time to play the audio file, the jury asked if they could 

play the recording without the Corporal being present. He 

replied that either he or George had to be present because the 
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thumb drive that contained the interview also contained other 

items which were not introduced into evidence. The jury asked 

if they could have a transcript of the interview and the Corporal 

replied that no transcript was available. The Corporal testified 

that no other discussions occurred while he was in the jury 

room. 

Id. at 11-12. 

When it was revealed that Corporal Goodyear had spoken to the 

jurors, Appellant’s counsel objected: “I object to that, Your Honor. He’s a 

Commonwealth witness. All the communication with the jurors should be 

from the Court or George.” N.T. at 539. Counsel continued that he was 

under the impression that the tape would be played by someone who was 

not a Commonwealth witness and then added: “I don't want a mistrial. I 

just don’t want it to happen anymore.” Id. at 542. The trial court then 

specifically directed Appellant’s counsel “to determine whether or not he 

would request a mistrial.” Id. at 544. After asking further questions of 

Corporal Goodyear and the tipstaff, Appellant’s counsel stated, “[A]t this 

point I would like to state it was a good faith mistake. I think we all 

interpreted him saying he was going to run them up there as he was going 

to have them run up there or have the interview played.” Id. at 547. 

Counsel asked for an opportunity to consult with his client and then 

reported: “Your Honor, I’ve spoke with Mr. Lafferty. We want to continue 

with the deliberations. We’re not going to ask for a mistrial at this time.” 

Id. at 548.

On February 20, 2015, the jury convicted Appellant. 
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At Appellant’s sentencing hearing on February 24, 2015, the trial court 

stated: “I do not find anything in particular that would mitigate or anything 

necessarily that would aggravate the factors already taken into consideration 

in the guideline form. . . . I impose a standard range sentence[.]” N.T., 

2/24/15, at 19-20. The trial court sentenced Appellant to two to four years 

of incarceration with six years consecutive probation. 

On March 6, 2015, Appellant filed post-sentence motions, including a 

motion to reconsider his sentence and a “Motion for Judgment of Acquittal,” 

requesting that “a new trial should be awarded in the interests of justice and 

because the jury verdict was against the weight of the evidence.” Postsentence Motions, 3/6/15, at 1-5. On March 10, 2015, the trial court denied 

the post-sentence motions. 

On April 9, 2015, Appellant filed a timely notice of appeal to this 

Court.3 In that appeal, Appellant raises the following issues, as stated in his 

brief:

I. When the Commonwealth’s primary witness, Cpl. 

Goodyear, twice invaded the privacy of the jury room during 

deliberations, interacted with the jury, distributed evidence, and 

refused to leave when asked by the jurors, is a new trial 

warranted?

A. As [Appellant] was denied due process of law.

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3 The trial court observed: “A considerable delay ensued as the trial 

transcript was not filed in a timely manner. Appellant obtained the 

transcript on August 18, 2016 and filed a Concise Statement of Matters 

Complained of on Appeal on September 7, 2016.” Trial Ct. Op. at 2.
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B. The trial court erred by failing to hold a hearing 

following the procedure in Remmer v. U.S., 347 U.S. 227 

(1954), “to determine the circumstances, the impact on 

the jury, and whether or not it was prejudicial, with all 

interested parties permitted to participate.”

C. The trial court erred when it did not give curative or 

cautionary instructions (if that was even possible).

II. Was the evidence insufficient to sustain the verdicts when 

the primary Commonwealth witnesses testified that there was no 

evidence that [Appellant] used the lap top computer to 

share/download files of child pornography on the dates alleged in 

the criminal information and that they merely assumed he was 

home at that time?

III. Was the verdict contrary to the weight of the evidence 

when viewed in its entirety since the evidence was so weak, 

tenuous and vague?

IV. Did the sentencing court abuse its discretion by imposing a 

sentence that was inconsistent with the norms underlying the 

sentencing code and focused almost exclusively on the 

seriousness of the offenses to the exclusion of other pertinent 

factors?

Appellant’s Brief at 6-7 (emphasis in original).

Interference with Jury Deliberations

Appellant first contends that, “when the Commonwealth’s primary 

witness, Cpl. Goodyear, twice invaded the privacy of the jury room during 

deliberations, interacted with the jury, distributed evidence and refused to 

leave when asked by the jurors, a new trial is warranted.” Appellant’s Brief 

at 23 (emphasis in original). He continues that “[i]t is well established that 

insertion of outside influences into a jury’s deliberative process is contrary to 

the foundations upon which our system of justice rests.” Id. at 31-32. 
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Appellant argues that the trial court should have held a hearing following the 

procedure in Remmer v. United States, 347 U.S. 227 (1954), which 

requires the trial court, upon learning of events that may have had an 

improper impact on a juror, to hold a hearing (at which all parties are 

permitted to participate) to determine the circumstances surrounding the 

incident, its effect on the juror(s), and whether or not it was prejudicial to 

the defendant. Appellant’s Brief at 31. Without such a hearing, Appellant 

maintains that he “was denied due process of law.” Id. at 23. He also 

insists that the trial court should have “give[n] curative or cautionary 

instructions . . . to remedy any prejudice that might [have] result[ed].” Id.

at 41. Ultimately, Appellant contends that what happened in the jury room 

entitles him to a new trial.

In the first place, we observe that immediately after it learned that 

Corporal Goodyear had entered the jury room and spoken to the jurors, the 

trial court questioned both Corporal Goodyear and its tipstaff about what 

happened and then allowed Appellant’s counsel to conduct further 

questioning. The court did not question the jurors, but Appellant made no 

request that the court do so. Rather, Appellant’s counsel dismissed what 

happened as “a good faith mistake” and said that he “just [did]n’t want it to 

happen anymore.” N.T. at 542, 547. Appellant therefore has no basis to 

challenge the trial court’s hearing as inadequate.
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Nor does Appellant have a basis for a new trial or relief from his 

judgment of sentence. We have stated:

“When an event prejudicial to a defendant occurs at trial, he 

may either object, requesting curative instructions, or move for 

a mistrial.” Commonwealth v. Meekins, 266 Pa. Super. 157, 

403 A.2d 591, 596 (1979). Pursuant to Pa.R.Crim.P. [605](b), 

in order for a motion for a mistrial to be timely, it must be made 

when the alleged prejudicial event occurs. 

Commonwealth v. Boring, 684 A.2d 561, 568 (Pa. Super. 1996), appeal 

denied, 689 A.2d 230 (Pa. 1997).

This rule applies to unlawful intrusions into jury deliberations. For 

example, in Commonwealth v. Cole, 135 A.3d 191, 194 (Pa. Super.), 

appeal denied, 145 A.3d 162 (Pa. 2016), the trial court allowed an 

employee of the district attorney’s office to access the jury room to play a 

surveillance video during deliberations. This Court held any challenge to this 

entry into the jury room by the district attorney’s office employee to be 

waived “for failure to properly object during trial.” Id. (citing 

Commonwealth v. Baumhammers, 960 A.2d 59, 84 (Pa. 2008) (“the 

absence of a specific contemporaneous objection renders the appellant’s 

claim waived”)).4

Here, the trial court invited Appellant to move for a mistrial after it 

learned what had happened. N.T. at 544. Appellant’s counsel consulted 

with his client and then reported: “Your Honor, I’ve spoke with Mr. Lafferty. 

____________________________________________

4 This Court nonetheless addressed the merits and held that the defendant 

was not entitled to relief. Cole, 135 A.3d at 194.
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We want to continue with the deliberations. We’re not going to ask for a 

mistrial at this time.” Id. at 548. Appellant did not ask for a curative 

instruction or any other relief. It was not until after the jury rendered its 

verdict that Appellant switched positions on this issue. As the trial court 

correctly held, by then it was too late, as Appellant had already waived this 

issue. See Trial Ct. Op. at 12-13 (citing Boring, 684 A.2d at 568). 

Although we strongly disapprove of the blatant impropriety of violating 

the sanctity of the jury room, we are constrained to agree with the trial 

court that this issue has been waived. Appellant’s issues relating to this 

incident are therefore untimely and merit no relief.5

Sufficiency of the Evidence

Appellant asserts:

The evidence was insufficient to sustain the verdicts when the 

primary Commonwealth witness, Cpl. Goodyear, testified that 

there was no evidence that [Appellant] used the lap top 

computer to share/download files of child pornography on the 

dates alleged in the criminal information and that he merely 

assumed the he was home at that time.

[Appellant] was convicted of two (2) counts of Possession of 

Child Pornography under 18 Pa.C.S.A. § 6312(d), Sexual Abuse 

of Children, Child Pornography. This section provides that “[a]ny 

person who intentionally views or knowingly possesses or 

____________________________________________

5 Our holding of waiver does not foreclose Appellant’s right to seek collateral 

relief for ineffective assistance of counsel. See Commonwealth v. Grant, 

813 A.2d 726, 738 (Pa. 2002) (ineffective assistance of counsel claims are 

normally withheld until collateral review proceedings); see also 

Commonwealth v. Burno, 94 A.3d 956, 963 (Pa. 2014), cert. denied, 

135 S. Ct. 1493 (2015).
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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.” The 

Commonwealth must prove . . . the defendant must have 

knowingly possessed or controlled the depiction. 

In the instant case, there is a lack of evidence establishing 

that [Appellant] knowingly possessed and controlled the child 

pornography on the laptop.

Appellant’s Brief at 42-43 (formatting and citation omitted). Appellant 

claims that he lacked exclusive possession and control over the laptop.

On an evidentiary sufficiency claim —

Our standard of review for a sufficiency of the evidence 

challenge is well established:

A claim challenging the sufficiency of the evidence 

presents a question of law. We must determine whether 

the evidence is sufficient to prove every element of the 

crime beyond a reasonable doubt. We must view evidence 

in the light most favorable to the Commonwealth as the 

verdict winner, and accept as true all evidence and all 

reasonable inferences therefrom upon which, if believed, 

the fact finder properly could have based its verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017) 

(citation omitted).

Viewing the record in a light most favorable to the Commonwealth, the 

trial court recited the evidence establishing that Appellant knowingly 

possessed and controlled the depictions on the computer:

[The] laptop was recovered from [Appellant]’s bed, with a file 

sharing program running on it at that time. Appellant admitted 

that the computer was his and that the images on his computer 

constituted child pornography. Corporal Roche’s testimony 

established that child pornography was downloaded during a 
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time that someone with Appellant’s first name created a 

document entitled “Shane’s food stamp app.number.text.” 

Furthermore, Corporal Roche’s testimony established that no 

child pornography was downloaded for months while Appellant 

was out of the residence and unable to access the laptop, but 

upon his return into the home, child pornography was 

downloaded. When informed of his arrest warrant and given the 

opportunity to self-report, Appellant agreed to do so but did not. 

Subsequently, after police arrived at his residence to arrest him,

Appellant[] lied to the police regarding his identity.

Trial Ct. Op. at 9. Notwithstanding his argument that he did not have 

exclusive possession and control over the laptop, Appellant’s Brief at 42-43, 

Appellant admitted the computer was his. Trial Ct. Op. at 4 (citing N.T. at 

161, 223), 9.

We agree with the trial court that this evidence was sufficient for the 

jury, as fact-finder, to find that Appellant knowingly possessed and 

controlled the computer and, hence, the child pornography saved on it. See 

18 Pa.C.S. § 6312(d); McFadden, 156 A.3d at 303. Appellant does not 

challenge any other element of his child pornography convictions. We 

therefore hold that there was sufficient evidence for the jury to have 

properly rendered its verdict of guilty as to both counts of child pornography 

pursuant to 18 Pa.C.S. § 6312(d). 

Weight of the Evidence

Appellant also challenges the weight of the evidence, alleging:

In the present case, the verdict was against the weight of the 

evidence where: neither Cpl. Goodyear and Cpl. Roche were 

able to establish that [Appellant] was in fact the individual who 

was using the lap top on the date and times the child 

pornography was being downloaded or shared; the 
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Commonwealth’s rebuttal witness, David Cross’ testimony was 

wholly incredible and should have been given no weight since he 

testified under a grant of immunity and demonstrated an 

incentive to lie to deflect his own possible wrong doing, despite 

the fact that other witnesses testified that he also had access to 

the lap top in question; David Cross previously revealed that he 

had sexual urges towards pre-pubescent girls to defense witness 

Bridgett Aber and that she also testified that he had very 

peculiar habits when using a laptop computer, including needing 

an extraordinary amount of privacy when using it; and defense 

witness Nathaniel Wells testified that he personally saw David 

Cross viewing child pornography that was the same type that the 

Commonwealth claimed that [Appellant] possessed/shared, Mr. 

Wells also credibly testified that he argued with David Cross over 

Mr. Cross’ posting of scripture that justified his attraction to child 

pornography. Hence, the verdicts rendered were contrary to the 

weight of the evidence presented as the Commonwealth’s 

evidence was so weak, tenuous, and vague that no finding of 

guilt could have been reached.

Appellant’s Brief at 45-46.6

We have held:

The weight of the evidence is exclusively for the finder of fact, 

who is free to believe all, none or some of the evidence and to 

determine the credibility of the witnesses.

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because the trial judge 

has had the opportunity to hear and see the evidence presented, 

an appellate court will give the gravest consideration to the 

findings and reasons advanced by the trial judge when reviewing 

a trial court’s determination that the verdict is against the weight 

of the evidence. One of the least assailable reasons for granting 

or denying a new trial is the lower court’s conviction that the 

verdict was or was not against the weight of the evidence and 

that a new trial should be granted in the interest of justice.

____________________________________________

6

Pursuant to Pa.R.Crim.P. 607, Appellant’s challenge to the weight of the 

evidence was preserved in his post-sentence motions, which included a 

motion for a new trial. Post-sentence Motions, 3/6/15, at 1-5.
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In order for a defendant to prevail on a challenge to the weight 

of the evidence, the evidence must be so tenuous, vague and 

uncertain that the verdict shocks the conscience of the court.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015) 

(formatting, internal brackets, citations, and quotation marks omitted), 

appeal denied, 138 A.3d 4 (Pa. 2016). “Resolving contradictory testimony 

and questions of credibility are matters for the factfinder.” Commonwealth 

v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).

After a thorough review of the record in this matter, we conclude that 

the trial court did not abuse its discretion in denying Appellant’s motion for a 

new trial. We agree with the trial court that:

Appellant’s theory of the case was that David Cross or another 

individual used Appellant’s computer to download child 

pornography. Based on the evidence presented at trial, the 

verdict does not so shock the conscience as to necessitate a new 

trial. The testimony, if believed, that David Cross viewed child 

pornography over ten years prior, held unconventional opinions 

regarding free love, and may have expressed a desire to destroy 

certain computers5 pales in the face of the Commonwealth’s 

evidence that the child pornography on Appellant’s computer 

was downloaded coincident with Appellant’s return to the home 

and not with a visit by Cross to the home. Furthermore, 

Appellant’s name was associated with the downloads and no 

testimony placed Cross in the home at or immediately preceding 

the downloads. The jury could reasonably conclude that 

Appellant used his computer to download child pornography. As 

such, Appellant’s claim is without merit.

5 Even if Cross used Appellant’s computer at some point, 

that does not preclude the possibility that Appellant 

downloaded the child pornography in question.

Trial Ct. Op. at 10.
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Appellant essentially asks us to reassess the credibility of the 

witnesses and to reweigh the testimony and evidence presented at trial. 

See Appellant’s Brief at 45-47. We cannot and will not do so. The jury 

found credible Corporal Roche’s testimony that someone with Appellant’s 

first name created a document entitled “Shane’s food stamp 

app.number.text,” that no child pornography was downloaded for months 

while Appellant was out of the residence and unable to access the laptop, 

and that downloading of the pornography resumed after Appellant returned 

to his home. Thus, the trial court concluded that the verdict was not so 

contrary to the evidence as to shock the court’s conscience and hence was 

not against the weight of the evidence. We discern no abuse of discretion in 

that ruling.

Sentencing

Finally, Appellant challenges his sentence:

[Appellant]’s sentence was manifestly excessive, unreasonable, 

and an abuse of discretion. It was not consistent with the norms 

underlying the sentencing code and failed to consider all relevant 

factors including the nature and characteristics of the defendant, 

and his rehabilitative needs. Instead, the [trial c]ourt focused 

exclusively on the seriousness of the offense to the exclusion of 

other pertinent factors.

Appellant’s Brief at 47-48.

Before we reach the merits of Appellant’s claim, we must decide 

whether to exercise our discretion to consider this appeal of the 

discretionary aspects of a sentence, which we will do only if: (1) the 
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appellant has filed a timely notice of appeal; (2) he has preserved the 

sentencing issue at the time of sentencing or in a motion to reconsider and 

modify his sentence; (3) he presents the issue in a properly framed 

statement in his brief under Rule 2119(f) of the Rules of Appellate 

Procedure, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 

1987); and (4) in the words of Section 9781(b) of the Sentencing Code, 42 

Pa.C.S. § 9781(b), “it appears that there is a substantial question that the 

sentence imposed is not appropriate under this chapter.” See, e.g., 

Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015), appeal 

denied, 140 A.3d 12 (Pa. 2016); Commonwealth v. Zelinski, 573 A.2d 

569, 574-75 (Pa. Super.), appeal denied, 593 A.2d 419 (Pa. 1990).

As noted above, on April 9, 2015, Appellant filed a timely notice of 

appeal to this Court. He also raised a challenge to the discretionary aspects 

of his sentence in his post-sentence motions and an Appellate Rule 1925(b) 

statement, and he has included a concise statement of the reasons relied 

upon for allowance of an appeal in his brief. See Appellant’s Brief at 19-22. 

We therefore must determine whether his appeal presents a substantial 

question regarding his sentence. In that connection:

A defendant presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the 

Sentencing Code or is contrary to the fundamental norms of the 

sentencing process. . . . The Sentencing Code prescribes 

individualized sentencing by requiring the sentencing court to 

consider the protection of the public, the gravity of the offense in 

relation to its impact on the victim and the community, and the 

rehabilitative needs of the defendant[.]
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Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017) 

(brackets, quotation marks, footnote, and citations omitted).

Here, the trial court concluded that Appellant failed to raise a 

substantial question. See Trial Ct. Op. at 13; Luketic, 162 A.3d at 1160-

61; Haynes, 125 A.3d at 807; Zelinski, 573 A.2d at 574-75. We disagree, 

as does the Commonwealth. Commonwealth’s Brief at 40-41. In his 

Appellate Rule 1925(b) statement, at Paragraph G, Appellant claimed that 

his sentence “was not consistent with the norms underlying the sentencing 

code.” Cf. Luketic, 162 A.3d at 1160-61. He also contends that his 

sentence “was manifestly excessive [and] unreasonable.” See Postsentence Motions, 3/6/15, at 4; Appellate Rule 1925(b) Statement ¶ G. “A 

claim that a sentence is manifestly excessive such that it constitutes too 

severe a punishment raises a substantial question.” Commonwealth v. 

Derry, 150 A.3d 987, 995 (Pa. Super. 2016) (citation and quotation marks 

omitted). In addition, Appellant argues in his Rule 2119(f) statement that 

“[t]he sentence imposed . . . failed to consider all relevant factors including 

the nature and characteristics of the defendant, and his rehabilitative 

needs.” Appellant’s Brief at 20. An allegation that the sentencing court 

failed to consider an appellant’s rehabilitative needs constitutes a substantial 

question, when presented in conjunction with other relevant factors. See, 

e.g., Luketic, 162 A.3d at 1160-61; Commonwealth v. Swope, 123 A.3d 

333, 340 (Pa. Super. 2015) (claim that failure to consider rehabilitative 
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needs and mitigating factors raised a substantial question); 

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (claim 

that sentencing court disregarded rehabilitation and the nature and 

circumstances of the offense raised a substantial question), appeal denied, 

91 A.3d 161 (Pa. 2014); Commonwealth v. Hill, 66 A.3d 365 (Pa. Super. 

2013) (claim that sentence was inconsistent with the protection of the public 

and with appellant’s rehabilitative needs raised a substantial question). We 

therefore conclude that Appellant has raised a substantial question.

We apply the following standard of review:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In order to establish that 

the sentencing court abused its discretion, the defendant must 

establish, by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at a 

manifestly unreasonable decision.

Luketic, 162 A.3d at 1162-63 (brackets, quotation marks, and citations 

omitted).

The Sentencing Code, 42 Pa.C.S. § 9721(b), provides that a court 

should impose a sentence of 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.” See Commonwealth. v. Walls, 926 A.2d 957, 962 (Pa. 

2007). During Appellant’s sentencing hearing, the trial court asserted, “I do 

not find anything in particular that would mitigate or anything necessarily 
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that would aggravate the factors already taken into consideration in the 

guideline form. . . . I impose a standard range sentence[.]” N.T., 2/24/15, 

at 19-20. In its opinion, the trial court further explained that its sentence 

was based on the fact that:

Although Appellant was charged with two counts of Possession of 

Child Pornography, the testimony elicited indicated hundreds, 

perhaps thousands of images of child pornography, representing 

a vast pool of child victims. Appellant’s probationary status from 

1994 to sentencing strongly suggests that Appellant is a poor 

candidate for community supervision. If anything, th[e trial 

c]ourt would have been justified in imposing a significantly 

longer sentence.

Trial Ct. Op. at 14.

Thus, the record indicates that the trial court considered the gravity of 

the offense, inasmuch as it considered that, even though the court could 

only sentence Appellant on two counts, he actually had possessed hundreds 

of images of child pornography. See 42 Pa.C.S. § 9721(b); Walls, 926 A.2d 

at 962; Trial Ct. Op. at 14. The trial court also reflected upon the impact on 

the victims, noting that “a vast pool of child victims” was involved. See 42 

Pa.C.S. § 9721(b); Walls, 926 A.2d at 962; Trial Ct. Op. at 14. It further 

considered the impact upon the community, noting that “Appellant is a poor 

candidate for community supervision.” See 42 Pa.C.S. § 9721(b); Walls, 

926 A.2d at 962; Trial Ct. Op. at 14. It likewise considered Appellant’s 

rehabilitative needs by noting that Appellant had been on probation for other 

offenses from 1994 until sentencing, indicating that previous attempts at 

rehabilitation had failed. See 42 Pa.C.S. § 9721(b); Walls, 926 A.2d at 
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962; Trial Ct. Op. at 14. Finally, because the trial court sentenced Appellant 

in the standard range, finding no aggravating factors, the sentence was not 

excessive and was consistent with the norms of the Sentencing Code. Id. 

We therefore discern no abuse of discretion or error of law in the sentence 

imposed by the trial court. 

Judgment of sentence affirmed.

Judge Ransom joins the memorandum. 

Judge Olson concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2017