J-S51035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 in August of

2017, Google Incorporated (Google) furnished approximately 10 reports to 

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

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

____________________________________________

1 18 Pa.C.S. § 6312(c), (d).
J-S51035-20

- 2 -

“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. The Pennsylvania State Police 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 internet service 

provider[.]

[In an interview with the State Police,] 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 images 

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 Appellant 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 

dissemination 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 26 
J-S51035-20

- 3 -

2017, he: (1) knowingly disseminated computer videotapes and films, and 

knowingly distributed and uploaded “10 images in video files that contained 

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

possessed 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.

The trial court sentenced Appellant on February 12, 2020, after 

reviewing a pre-sentence investigation report (PSI). At sentencing, Appellant 

was 47 years old and had no criminal history. Although Appellant had no prior 

arrests, his admission of viewing 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) on each of the ten counts of dissemination of 

photographs, a term of 12 to 24 months’ imprisonment, all to run 
J-S51035-20

- 4 -

consecutively; (2) on 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 issues 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 Appellant has no prior record, 

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

his sexually violent predator 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 discretion 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 crime 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 would 
J-S51035-20

- 5 -

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 years old at the time the offenses were 

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

maintains “the long 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. In his 

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

run concurrently 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, see
J-S51035-20

- 6 -

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 substantial 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

question 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 substantial question to

warrant appellate review. Rather, a substantial question will be

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

sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme 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

defendant’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 the
J-S51035-20

- 7 -

required Pa.R.A.P. 2119(f) statement. See id. We thus 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.”

Austin, 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, an aggregate

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

Id. at 1266. He appealed 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 nonviolent 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 where 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-S51035-20

- 8 -

Id. at 1270. Nevertheless, this 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 required 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. Accordingly, 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 merely 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 manifestly unreasonable decision.

Watson, 228 A.3d at 936-37 (citations omitted).
J-S51035-20

- 9 -

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 understood 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 each

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 Court 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-S51035-20

- 10 -

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 court 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

acknowledge 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,

for the reasons set forth above.

We add that while Appellant emphasizes the 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 parties’ 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 the 

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 establish 
J-S51035-20

- 11 -

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

is due.

At this juncture, 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 raises 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 

sentencing.

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 both 
J-S51035-20

- 12 -

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 current 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 statute:

(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, 

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.

(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-S51035-20

- 13 -

Although Appellant properly cites the law generally for statutory 

elements and lesser and greater offenses, 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 

sentencing 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, distributing, 

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 any particular purpose. 

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

as the intentional viewing, knowing possession, or control of child 

pornography. Id. Relatedly, the offense of possession of child pornography 
J-S51035-20

- 14 -

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 Pa.C.S. § 6312(d).

We conclude that because 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 photographs 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 affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Murray joins this Memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/09/2021