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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JASON ERIC JOHNSON

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 580 MDA 2020

Appeal from the Judgment of Sentence Entered February 12, 2020

In the Court of Common Pleas of Lackawanna County Criminal Division at

No(s): CP

- 35

- CR

- 0002589

- 2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 09, 2021

Jason Eric Johnson (Appellant) appeals from t h e judgment of sentence

entered in the Lackawanna County Court of Common Pleas following his guilty

pleas under two subsections of the sexual abuse of children stat ute:

dissemination of photographs or film of a child engaging in a prohibited sexual

act (dissemination of photographs ) and possession of child pornography. 1 He

avers the trial court abused its discretion in ordering his sentences to run

consecutively

, and his sentences should have merged . We affirm.

The trial court summarized the facts as follows: beginning i n August of

2017, Google Incorporated (Google) furnished approximately 10 report s to

the National Center for Missing and Exploited Children (NCME C) Cyber Tip

Line

, that between April 26 and August 10, 2017, the user name

_________________ __________ ______ ____ _______

1 18 Pa.C.S. § 6312(c), (d).J

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“jokerjohnson05®gmail.com” uploaded images of suspected child

pornography to Google ’ s photo sharing and storage service. Trial Ct. Op.,

8/6/20, at 3. T he Pennsylvania State Polic e investigated and learned the

reported user name and IP address were associated Appellant

. On March 6,

2018, police executed a search warrant on Appellant residence and retrieved

a Nextbook Tablet

.

A data extraction of said tablet returned numerous images of child

pornography. The pictures and videos depicted children posing

naked or performing sexual acts. Said pictures and videos were

received and distributed over Appellant ’ s home inte rn et service

provider [.]

[In an interview with the State Poli ce ,] Appellant

acknowledged that he had been viewing child pornography for

roughly [15] years, has viewed hundreds of pornographic images

on his tablet, and has uploaded numerous images onto Google+

Photos. He then went on to admit that his viewing the im ages

began out of curiosity but had progressed to the point of sexual

gratification. Ultimately, a forensic analysis of the electronic

devices seized from Appellant ’ s home identified [220] files of

known child pornography.

Id.

The State Police charged Ap pellant with 412 counts of dissemination of

photographs, 220 counts of child pornography, and one count of criminal use

of a communication facility, 18 Pa.C.S. § 7512. Trial Ct. Op. at 3.

On May 1, 2019, Appellant entered a guilty plea to ten counts of

di ssemination of photographs and ten counts of possession of child

pornography, each graded as a felony of the second degree. Appellant

admitted to the facts as summarized by the Commonwealth, that on April 26J

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2017, he: (1) knowingly disseminate d computer v ideotapes and films

, and

knowingly distribut ed and upload ed “ 10 images in video files that contained

child pornography ;” and (2) on the same da te and time, he knowingly

possess ed or controlled “ 10 photographs depicting a child under the age of

eight engaging in sexual conduct. ” N.T. , 5/1/19, at 6

- 7. Appellant was

advised each count carried a maximum sentence of 10 years ’ imprisonment

and $25,000

. Id. at 6.

Appellant subsequently underwent a sexually violent predator (SVP)

assessment and was found not to meet the criteria of an SVP.

T he tria l court sentenc ed Appellant on February 12, 2020 , after

review ing a pre

- sentence investigation report (PSI). A t sentencing, A ppellant

was 47 years old and had no criminal history

. Although Appellant had no prior

arrests, his admission of view ing child pornography was tempered by an

argument that he did not profit from them nor “ encourage others to make it

[sic] by disseminating

. ” N.T., 2/12/20, at 2

- 3. Appellant requested his

sentences to run concurrently, arguing his conduct was one “ crime spree, ”

rather than multiple separate offenses. Id. at 4. The Commonwealth argued

against concurrent sentences, reasoning Appellant possessed distinct images,

which depicted different individuals. Id

. at 7

- 8.

The trial court agreed with the Commonwealth ’ s reasoning and imposed

the following sentences: (1) o n each of the ten counts of dissemination of

photographs, a term of 12 to 24 months ’ imprisonment, all to runJ

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consecutively ; (2) o n two counts of possession of child pornography, terms of

12 to 24 months, likewise to run consecutively ; and (3) on each of the

remaining eight counts of possession of child pornography, terms of 12 to 24

months, to run concurrently with the first two possession of child pornography

counts. Appellant ’ s aggregate sentence was thus 12 to 24 years ’

imprisonment.

On February 21, 2020, Appellant filed a timely post

- sentence motion,

which reiterated the arguments he presented at the sentencing hearing. The

trial court denied the motion the same day. Appellant took a timely appeal

and complied with the court ’ s order to file a Pa.R.A.P. 1925(b) statement of

concise errors complained of on appeal.

Appellant presents two related issue s for our review:

[1.] Whether the sentences imposed on each of the charges and

in the aggregate were harsh and excessive and an abuse of

discretion in light of the fact that A ppellant has no prior record,

that he does not have a criminal history of sexually offending, that

his sexually violent preda tor assessment evaluation found that he

does not suffer from a mental abnormality/personality disorder,

that the crimes involved an ongoing action with the same motive

assertedly [sic] making it a crime spree.

[2.] Whether the trial court abused its disc retion and impose a

harsh and excessive sentence by failing to impose concurrent

sentences on all counts since the offenses to which he pled

occurred on the same date and time and was an ongoing action

with the same motive assertedly [sic] making it a crim e spree.

Appellant ’ s Brief at 4.

In his first issue, Appellant contends that while “ none of the individual

sentences is excessive,

. . . the cumulative sentence is, ” and “ arguably wouldJ

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amount to a life sentence if he were required to serve the [maximum] 24

years. ” Appellant ’ s Brief at 7, 12. Appellant claims “ the trial court failed to

consider the fact[s] that he was 46 yea r s old at the time the offenses were

committed ” and that he admitted to his conduct. Id. at 12. Appellant further

maintains “ the l ong period of incarceration was not warranted by the facts of

this case, ” where although “ he had been viewing child pornography for

approximately 15 years, he had never acted on his impulses. ” Id. at 12, 13.

Appellant thus concludes the court should have imposed “ minimal

incarceration ” and “ a probationary period wherein he could seek the

professional help to address his issues in the ‘ real world. ’ ” Id. at 13. I n his

second issue, Appellant avers the court erred in not ordering his sentences to

run concu rrently because “ his criminal activity involved a crime spree

. ” Id.

at 16

- 17.

These claims go to the discretionary aspects of sentencing. See

Commonwealth v. Austin

, 66 A.3d 798

, 807

, 808 (Pa. Super. 2013)

( stating: (1) claim, that imposition of consecutive sentences resulted in a “ de

facto ” life sentence and “ a manifestly excessive aggregate sentence, ” is a

challenge to discretionary aspects of sentence ; and (2) Pennsylvania law

affords the sentencing court discretion to impose its sentences concurrently

or consecutively).

Before we reach the merits of a discretionary aspect of sentencing issue:

We conduct a four

- part analysis to determine: (1)

whether appellant has filed a timely notice of appeal, seeJ

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- Pa.R.A.P. 902 and 903; (2) whether the issue was

properly preserved at sentencing or in a motion to

reconsider and modify sentence, see Pa.R.Crim.P. 720;

(3) whether appellant ’ s brief has a fatal defect, Pa.R.A.P.

2119(f); and (4) whether there is a substa ntial question

that the sentence appealed from is not appropriate under

the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

* * *

“ The determination of what constitutes a substantial question

must be evaluated on a case

- by

- case basis. ” A substantial

qu estion exists “ only when the appellant advances a colorable

argument that the sentencing judge ’ s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the

sentencing process. ”

A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if

the sentence is within the statutory limits. Bald allegations of

excessiveness, however, do not raise a substa ntial question to

warrant appellate review. Rather, a substantial question will be

found “ only where the appellant ’ s Rule 2119(f) statement

sufficiently ar ticulates the manner in which the sentence violates

either a specific provision of the sentencing sc heme set forth in

the Sentencing Code or a particular fundamental norm underlying

the sentencing process

. . . . ”

. . .

“ Where [PSI] reports exist, we shall continue to presume that the

sentencing judge was aware of relevant information regarding the

defe ndant ’ s character and weighed those considerations along

with mitigating statutory factors. ”

Commonwealth v. Watson

, 228 A.3d 928, 935

- 36 (Pa. Super. 2020) (some

citations omitted).

In the case sub judice

, Appellant filed a timely notice of appeal and

raised these discretionary sentencing claims before the trial court. See

Austin

, 66 A.3d at 808. Additionally, his appellate brief properly includes theJ

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required Pa.R.A.P. 2119(f) statement. See id. We th us consider whether

Appellant ’ s Rule 2119(f) statement raises a substantial question. See id.

This Court has reasoned :

The determination of what constitutes a substantial question must

be evaluated on a case

- by

- case basis. “ A substantial question

exits only when the appellant advances a colorable argument that

the sentencing judge ’ s actions were either: (1) inconsistent with

a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process. ”

Aust in

, 66 A.3d at 808 (citations omitted).

In Commonwealth v. Dodge

, 957 A.2d 1198 (Pa. Super. 2008)

( Dodge II )

, the defendant was convicted of “ 37 counts of receiving stolen

property, two counts of burglary, criminal trespass, ” and other offenses. Id.

at 1199

. At the time of sentencing, he was 42 years old. Commonwealth

v. Dodge

, 77 A.3d 1263

, 1279 (Pa. Super. 2013) ( Dodge III )

. Dodge

ultimately received, following two remands by this Court, a n aggregate

sentence of 40 years and 7 months to 81 years and 2 months ’ imprisonment.

Id. at 1266. He appeal ed to this Court, arguing “ the imposition of consecutive

sentences

. . . based on the criminal conduct at issue, results in a manifestly

excessive sentence, ” and that “ his sentence is ‘ a virtual life sentence ’ for non

violent property crimes. ” Id. at 1269

, 1271. This Court observed:

To make it clear, a defendant may raise a substantial question

where he receives consecutive sentences within the guideline

ranges if the case involves circumstances wher e the application of

the guidelines would be clearly unreasonable, resulting in an

excessive sentence; however, a bald claim of excessiveness due

to the consecutive nature of a sentence will not raise a substantial

question.J

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Id. at 1270. Nevertheless, th is Court concluded Dodge presented a

substantial question, where he did not make “ a boilerplate claim, insofar as

he has cited pertinent legal authority that can be read to support his assertion

that a substantial question that the sentence was not appropriate under our

Sentencing Code exists. ” Id. at 1271.

We reiterate that Appellant was 47 years old at the time of sentencing

,

and he received an aggregate sentence of 12 to 24 years ’ imprisonment. His

Rule 2119(f) statement avers that “ if he were r equired to serve the full 24

years, ” the sentence “ arguably would amount to a life sentence. ” Appellant ’ s

Brief at 7. Appellant further contends “ his conduct was an ongoing action with

the same motive, ” and thus “ the imposition of concurrent sentences was harsh

and excessive. ” Id. at 10. In light of our foregoing authority, we conclude

Appellant has presented a substantial question. See Watson

, 228 A.3d at

935

- 36; Dodge III

, 77 A.3d at 1270. A ccor dingly, we review the merits of

his claims.

We note the relevant 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 this context, an abuse

of discretion is not shown mere ly by an error in judgment. Rather,

the appellant 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 manifestl y unreasonable decision.

Watson

, 228 A .3d at 936

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Here

, the trial court explained it “ had ample opportunity to review the

pre

- sentence investigation, as well as

. . . Appellant himself, prior to its

imposition of sentence. ” Trial Ct. Op. at 7. The court considered Appellant ’ s

age, guilty plea, and “ lack of criminal history, ” as well as “ the nature and

circumstances of [his] crimes. ” Id. at 7

- 8. The court emphasized that

Appellant acknowledged, at the guilty plea, he unde rstood the potential

sentences for each count. Id. at 8. Pertinently, the court rejected Appellant ’ s

assertion that his offenses should be viewed as a single crime spree. Id. at

9. It noted that in Commonwealth v. Gatling

, 807 A.2d 890 (Pa. 2001)

(plurality),

the record established that the Defendant possessed 28

pornographic pictures depicting different children in various sexual

acts or the same children photographed multiple times. [The

Gatling ] Court determined that since every photograph of e ach

child victimized that child and subjected him or her to the type of

harm that the statute seeks to prevent, there were clearly 28

different criminal acts. The Pennsylvania Supreme C ourt stated

[its] rationale in treating each photograph as a separate crime is

to “ avoid giving criminals a ‘ volume discount ’ on crime. ”

Trial Ct. Op. at 9 (citations omitted). Nevertheless, the court sentenced

“ Appellant at the low end of the standard range, ” and directed that eight of

his sentences run concurrently. See id.

Preliminarily, we note the decision cited by the trial court, Gatling

,

discussed sentencing merger, specifically “ whether merger was precluded for

the purpose of avoiding a ‘ volume discount ’ for multiple criminal acts. ” See

Gatling

, 807 A.2d at 892 (opinion announcing judgment of the court) (OAJC).J

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Nevertheless, the trial court applied the above discussion to its analysis of

Appellant ’ s discretionary aspects of sentencing claims

, and on appeal,

Appellant raises no argument the cour t erred in referring to Gatling in this

context

. But see Appellant ’ s Brief at 16 (arguing, in sentencing merger issue,

that Gatling is distinguishable). Indeed, we observe he does not address or

acknowledg e the trial court ’ s opinion at all

. Instead, Appellant merely

reiterates the same arguments presented at the sentencing hearing and in his

post

- sentence motion, which the trial court has already heard and rejected,

fo r the reasons set forth above.

We add that while Appellant emphasizes th e consecutive nature of

twelve of his counts, the trial court did order eight sentences to run

concurrently. We also observe the trial court imposed lower

- standard range

sentences. After careful review of the record, the trial court ’ s opinion, and

the pa rties ’ briefs, we conclude Appellant has not established that any part of

the trial court ’ s reasoning “ ignored or misapplied the law ” or indicated

“ partiality, prejudice, bias or ill will. ” See Watson

, 228 A.3d at 937.

In his second issue, Appellant asserts his sentences should have

merged. In support, he avers: (1) his twenty “ crimes involve the same

criminal purpose and . . . modus operandi ; ” (2) “ his conduct in viewing [and

disseminating] the images . . . involved the same behavior occurring on t he

same day and time period, ” and thus comprise “ a crime spree; ” and (3) “ he

did not commit multiple criminal acts beyond what was required to establishJ

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the elements of each of the crimes. ” Appellant ’ s Brief at 13, 15, 16. No relief

is due.

At this junct ure, we note Appellant did not raise a merger challenge

before the trial court. Nevertheless, because this type of claim implicates the

legality of sentence, it may not be waived, and we may review it on appeal.

See Commonwealth v. Rhoades , 8 A.3d 912, 918 (Pa. Super. 2010) ( “ A

claim that crimes should have merged for sentencing purposes raises a

challenge to the legality of the sentence, which cannot be waived. ” ).

This Court has explained:

A claim that crimes should have merged for sentencing

purposes r aises a challenge to the legality of the sentence;

therefore, our standard of review is de novo and our scope of

review is plenary.

Our legislature has defined the circumstances under which

convictions for separate crimes may merge for the purpose of

sent encing.

Merger of sentences. 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.A. § 9765.

To determine whether offenses are greater and lesser

included offenses, we compare the elements of the

offenses. If the elements of the lesser offense are all

included within the elements of the greater offense and

the greater offense has at least one additional element,

which is different, then the sentences merge. If bothJ

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- crimes require proof of at least one element that the

other does not, then the sentences do not merge.

Commonwealth v. Hill , 140 A.3d 713, 715

- 16 (Pa. Super. 2016)

.

Pennsylvania jurisprudence has moved away from the prior “ ‘ practical,

hybrid approach ’ that looks to the statutory elements of the respective crimes

and evaluates whether the defendant was charged and convicted on a single

set of facts that satisfies both offenses. ” Commonwealth v. Quintua , 56

A.3d 399, 401 (Pa. Super. 2012). “ [T]he curre nt state of merger law in

Pennsylvania makes clear there is no merger if each offense requires proof of

an element the other does not. ” Id.

Appellant was convicted of ten counts under each of the following two

subsections of the sexual abuse of children s tatute:

(c) Dissemination of photographs, videotapes, computer

depictions and films.

— Any person who knowingly sells,

distributes, delivers, disseminates, transfers, displays or exhibits

to others, or who possesses for the purpose of sale, distribution,

d elivery, 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.

(d) Child pornography.

— Any person who intentionally views

or 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.

See 18 Pa.C.S. § 6312(c), (d).J

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Although Appellant properly cites the law generally for statutory

elements and lesser and greater off enses, he presents no examination or

comparison of the particular statutory provisions at issue here. See

Appellant ’ s Brief at 15. Instead, Appellant ’ s supporting argument is that the

same set of facts

— his conduct

— could establish both dissemination of

photographs and possession of child pornography. As stated above, however,

Pennsylvania courts have rejected this “ practical, hybrid ” approach to

sen tencing merger. See Quintua , 56 A.3d at 401.

Our comparison of the two subsections reveals that no sentencing relief

is due, as each crime includes several distinct elements. Dissemination of

child pornography requires, inter alia , the act of selling, di stributing,

delivering, disseminating, transferring, displaying or exhibiting child

pornography to others

, or possessing child pornography “for the purpose of

sale, distribution, delivery, dissemination, transfer, display or exhibition to

others.” 18 Pa.C .S. § 6312(c). Thus, although the crime of dissemination

may involve the possession of child pornography, such possession , under the

statute, must be for the specific purpose of dissemination. Id.

Conversely, simple possession of child pornography does not require an

act of dissemination, nor does it require possession for a ny particular purpose.

See 18 Pa.C.S. § 6312(d). Instead, the statute merely defines this offense

as the intention al viewing, knowing possession, or control of child

pornography. Id. Relatedly, the offense of possession of child pornographyJ

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may be established without actual possession, through either the control or

viewing of child pornography, neither of which are elements of dissemination.

Compare 18 Pa.C.S. § 6312(c) with 18 P a.C.S. § 6312 (d).

We conclude that b ecause each crime contains at least one element that

the other does not, the second prong of Section 9765 (requiring that all

elements be shared) cannot be met . Accordingly, Appellant ’ s sentences for

dissemination of ph otographs and possession of child pornography do not

merge

. See 18 Pa.C.S. § 6312(c), (d); 42 Pa.C.S.A. § 9765; Hill , 140 A.3d

at 715

- 16.

As we conclude there is no merit to Appellant ’ s discretionary aspects of

sentencing or sentencing merger claims, we a ffirm the judgment of sentence.

Judgment of sentence affirmed.

Judge M urray joins this Memorandum.

J udge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/09/2021