J-S03042-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NATHAN ROBERT SAUERS,

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2238 EDA 2018

Appeal from the PCRA Order Entered June 25, 2018

in the Court of Common Pleas of Monroe County 

Criminal Division at No(s): CP-45-CR-0002645-2013

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2019

Nathan Robert Sauers (“Sauers”) appeals from the denial of his first 

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

1

 

Upon careful review, we affirm.

By way of background, on November 18, 2013, following the issuance 

of a search warrant, a forensic examination of Sauers’s computer revealed 9 

images and 81 videos of child pornography. As a result, Sauers was charged 

at two separate dockets for the possession and dissemination of child 

pornography. One case, docketed at CP-45-CR-0000380-2014 (“No. 380-

2014”), involved 87 counts, in the aggregate, of possession of child 

____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546.
J-S03042-19

- 2 -

pornography and dissemination of child pornography.2 The other case, 

docketed at CP-45-CR-0002645-2013 (“No. 2645-2013”), involved 10 counts 

each of possession and dissemination of child pornography, and 1 count of 

criminal use of a communication facility.

3

 The cases were consolidated for 

trial. 

After a jury acquitted Sauers of all counts at No. 380-2014, but 

convicted him of all counts at No. 2645-2013, the trial court sentenced Sauers 

to five to ten years in prison for his convictions under No. 2645-2013, and 

designated Sauers as a Tier III sexual offender with lifetime reporting 

requirements under the Sexual Offender Registration and Notification Act 

(“SORNA”).4

On direct appeal, this Court affirmed the convictions in all respects, but 

vacated, in part, the judgment of sentence, and remanded for re-sentencing 

based on the Pennsylvania Supreme Court’s holding in Commonwealth v. 

Lutz-Morrison, 143 A.3d 891 (Pa. 2016).5 Our Supreme Court denied Sauers 

allowance of appeal on September 19, 2017. See Commonwealth v. 

Sauers, 159 A.3d 1 (Pa. Super. 2017), appeal denied, 170 A.3d 1057 (Pa. 

____________________________________________

2 See 18 Pa.C.S.A. § 6312(c), (d).

3 See 18 Pa.C.S.A. § 7512(a).

4 42 Pa.C.S.A. §§ 9799.10-9799.41.

5 Lutz-Morrison held that lifetime registration under SORNA was 

inappropriate for first-time offenders, like Sauers. 
J-S03042-19

- 3 -

2017). Consequently, the sentencing court re-classified Sauers as a Tier II 

sexual offender, with a reduced registration period of 25 years. During that 

timeframe, Sauers filed a pro se PCRA Petition, which was amended by 

appointed PCRA counsel on March 2, 2018 and May 15, 2018. The PCRA court 

afforded Sauers a hearing on his Petition, but ultimately denied relief on June 

25, 2018.6 This timely appeal followed.

Sauers now raises the following issues for our review:

I. Did the [PCRA] court abuse its discretion by requiring 

[Sauers] to notify state police of the hearing where [Sauers] 

averred the state police did not have standing as a party?

II. Did the [sentencing] court abuse its discretion at sentencing 

by not merging the counts for sentencing purposes?

III. Did the [PCRA] court abuse its discretion by not finding trial 

counsel ineffective because they did not raise the [ARES filesharing software] claim properly in order to preserve the 

issue for appeal?

IV. Did the [PCRA] court abuse its discretion by not finding trial 

counsel ineffective because they did not review the alleged 

child pornography in order to be able to stipulate to the 

contents of the pictures?

V. Did the [PCRA] court abuse its discretion by not finding 

SORNA punitive and a violation of [Sauers’s] [c]onstitutional 

rights under the Pennsylvania and [f]ederal constitutions[,]

where mandatory reporting compliance with SORNA’s 

requirements are an affirmative restraint upon [Sauers] and 

such restraint is punitive?

____________________________________________

6 The PCRA court, upon Motion of the Commonwealth, postponed the hearing 

at least once to afford the Pennsylvania State Police the opportunity to be 

present at the hearing. Notwithstanding, the State Police were absent from

the hearing. 
J-S03042-19

- 4 -

Brief for Appellant at 4.

In reviewing an order denying a PCRA petition, this Court's standard of 

review is limited to “whether the [PCRA] court’s legal conclusions are correct 

and whether its factual findings are clearly erroneous.” Commonwealth v. 

Edwards, 177 A.3d 963, 971 (Pa. Super. 2018).

Sauers first claims that the PCRA court abused its discretion in requiring 

that, by reason of his sexual offender status, he notify the Pennsylvania State 

Police of his PCRA hearing. Brief for Appellant at 7-8. 

Despite being notified, the State Police did not attend the hearing, 

thereby rendering this issue void of the requisite “case or controversy” 

required in an appeal. See Commonwealth v. Nava, 966 A.2d 630, 632 

(Pa. Super. 2009) (stating that a case is “moot when a determination is sought 

on a matter which, when rendered, cannot have any practical effect on the 

existing controversy.”). Because the State Police failed to appear, the PCRA 

court’s directive did not have any effect on the proceedings and did not result 

in any harm to Sauers that could be remedied by this Court. We therefore 

decline to address the merits of this claim and conclude that the issue is moot.

In his second claim, Sauers contends that the sentencing court erred in 

failing to merge his various counts for sentencing. Brief for Appellant at 9-10. 

Specifically, Sauers avers that certain of his sentences for possession of child 

pornography should merge with his sentences for dissemination of child 

pornography based upon the supposition that they arose from the same 

criminal act. Id. at 9. In so doing, Sauers contends that possession of child 
J-S03042-19

- 5 -

pornography is a lesser-included offense of dissemination, “in that all the facts 

to convict for [dissemination] are present in [possession].” Id. at 10. 

Additionally, Sauers argues that his sentence for criminal use of a 

communication facility should merge with, or run concurrent with, his 

sentence for dissemination, “in that the communication facility is the device 

used to [disseminate].” Id. Despite failing to characterize this as a challenge 

to the effectiveness of his trial counsel in his Pa.R.A.P. 1925(b) Concise 

Statement, and despite failing to undertake any analysis of effectiveness,7

Sauers fleetingly declares that his trial counsel was ineffective for failing to 

argue the foregoing points. Id. at 9.

“Whether [an] [a]ppellant's convictions merge for sentencing is a 

question implicating the legality of [an] [a]ppellant's sentence. Consequently, 

our standard of review is de novo and the scope of our review is plenary.” 

Comonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

Our legislature has explicitly provided the following mandate regarding 

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 

____________________________________________

7 See Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (providing a threeprong test for effectiveness of counsel). “When an appellant fails to 

meaningfully discuss each of the three ineffectiveness prongs, he is not 

entitled to relief, and we are constrained to find such claims waived for lack 

of development.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) 

(internal citation and quotation marks omitted). For this reason, we will not 

address this aspect of Sauers’s claim.
J-S03042-19

- 6 -

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 (emphasis added).

Our Supreme Court has held that “a plain reading of Section 9765 

reveals the General Assembly's intent that crimes with different statutory 

elements be punished separately.” Baldwin, 985 A.2d at 831. “The statute's 

mandate is clear. It prohibits merger unless two distinct facts are present: 1) 

the crimes arise from a single criminal act; and 2) all of the statutory elements 

of one of the offenses are included in the statutory elements of the other.” 

Id. (emphasis added).

Sauers was convicted under 18 Pa.C.S.A. § 6312, which pertains to the 

sexual abuse of children, and identifies the elements of each crime as follows:

(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.

18 Pa.C.S.A. § 6312(c), (d) (emphasis added).

Examination of the implicated subsections reveals several elements that 

are distinct to each crime. Dissemination of child pornography requires, inter 
J-S03042-19

- 7 -

alia, the act of selling, distributing, delivering, disseminating, transferring, 

displaying or exhibiting the pornography to others. Alternatively, possession 

may establish dissemination, but it, too, must be possession for the specific 

purpose of dissemination or the like. Conversely, simple possession of child 

pornography does not require an act of dissemination, nor does it require 

possession for a particular purpose. Rather, simple possession may be 

established without resort to actual possession, through either the control or 

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

Because each crime contains at least one element that the other does not, 

such that the second prong of Section 9765 (requiring that all elements be 

shared) cannot be met, we conclude that the Legislature intended each crime

to be punished separately. See Baldwin, 985 A.2d at 837; see also 42 

Pa.C.S.A. § 9765. 

Additionally, Sauers claims that his sentence for criminal use of a 

communications facility should merge with his sentence for dissemination of 

child pornography. Brief for Appellant at 10. Section 7512 of the governing 

statute provides, in pertinent part, as follows:

A person commits a felony of the third degree if that person uses 

a communication facility to commit, cause or facilitate the 

commission or the attempt thereof of any crime which constitutes 

a felony....

18 Pa.C.S.A. § 7512(a). A comparison of Section 7512(a) with subsections 

(c) and (d) of Section 6312, supra, evinces no overlap or sharing of any 

elements of the crimes, much less all of the elements, as required by Section 
J-S03042-19

- 8 -

9765. Because merger of Sauers’s sentences would have been improper, he 

is not entitled to relief on this claim.

In his third and fourth claims, which we address simultaneously due to 

their relatedness, Sauers argues that trial counsel was ineffective for 1) failing 

to preserve for appeal an “issue regarding the [Ares] software”; and 2) failing 

to stipulate as to the contents of the child pornography, which was entered 

into evidence. Brief for Appellant at 11-12. 

To be eligible for relief based on a claim of ineffective assistance of 

counsel, a PCRA petitioner must demonstrate, by a preponderance of the 

evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable 

basis existed for counsel’s action or omission; and (3) there is a reasonable 

probability that the result of the proceeding would have been different absent 

such error. Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). “A 

PCRA petitioner must address each of these prongs on appeal.” 

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018). “When an 

appellant fails to meaningfully discuss each of the three ineffectiveness 

prongs, he is not entitled to relief, and we are constrained to find such claims 

waived for lack of development.” Commonwealth v. Fears, 86 A.3d 795, 

804 (Pa. 2014) (internal citation and quotation marks omitted).

We preliminarily note that Sauers’s argument for each claim of 

ineffective assistance amounts to three perfunctory sentences. See Brief for 

Appellant at 11-12. Sauers’s argument is not cohesive and is hardly
J-S03042-19

- 9 -

comprehensible, as it provides no context and begins to weave in Sixth 

Amendment concerns, as well as a mischaracterization of this Court’s prior 

decision, at random. Id. at 11; see also id. (stating that, in finding an issue 

waived, “[t]he Superior Court therefore was calling trial counsel ineffective”). 

At no point does Sauers address any prong of the effectiveness test. As 

Fears, supra, makes clear, it is not the role of this Court to generate Sauers’s 

arguments for him.8 

In his fifth and final claim, Sauers contends that the sexual offender 

registration portion of his sentence is illegal, based on our Supreme Court’s 

ruling in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). Brief for 

Appellant at 13-18.9 Sauers’s argument focuses more on his personal 

grievances with SORNA than on the constitutionality of its application to his 

particular situation. See Brief for Appellant at 16-17 (stating that “Section 

[4] ... is the most onerous” and “[having to] constantly update[] [the police 

is] a way to harass and punish” and “[h]ow can Pennsylvania tell someone 

they are required to register in another jurisdiction without knowing if they 

are in fact required to register there?”]). Sauers concludes his argument by 

____________________________________________

8 Additionally, we note that Sauers’s ARES software challenge implicating the 

Sixth Amendment is poorly disguised as a novel issue distinct from that 

previously raised – and ruled as being without merit – in his direct appeal. 

See Sauers, 159 A.3d at 5, 9-10, fn. 6. Previously litigated claims are not 

cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(3).

9 We note that pages 17-18 of Sauers’s Brief are duplicative.
J-S03042-19

- 10 -

saying that the “excessiveness [of SORNA’s reporting requirements] should 

be extended to anyone on SORNA, not just those prior to December 2012.” 

Id. at 18.

As can be gleaned from Sauers’s final statement, which seems to 

suggest that SORNA should be applied in this case, Sauers’s argument on this 

issue is disjointed and confusing. In spite of this, we will attempt to address

that portion of Sauers’s claim which is decipherable. 

The Court in Muniz held that SORNA’s registration requirements are 

punitive in nature, and that retroactive application of SORNA’s registration 

provisions violated the ex post facto clause of the Pennsylvania and federal 

constitutions. Muniz, 164 A.3d at 1193. Sauers avers that the rationale of 

Muniz – i.e., that the registration requirements of SORNA are more punitive 

than they are protective – supports his position that applying SORNA to his 

case is unconstitutional. Brief for Appellant at 13-18. 

Muniz dealt with retroactive application of SORNA, whereas the instant 

application is not retroactive. Based on SORNA’s application not being 

retroactive in this case, in conjunction with the fact that Sauers’s convictions 

fall squarely within the ambit of SORNA, Sauers is not entitled to relief on this 

claim. 

Accordingly, as none of Sauers’s issues entitle him to relief, we affirm 

the Order on appeal.

Order affirmed.
J-S03042-19

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/19