Com. v. Peoples. R., Jr. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT JOHN PEOPLES, JR., :
:
Appellant : No. 376 MDA 2016
Appeal from the Judgment of Sentence February 9, 2005
in the Court of Common Pleas of Lackawanna County
Criminal Division, at No(s): CP-35-CR-0000337-2004
CP-35-CR-0000338-2004
BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 22, 2017
Robert John Peoples, Jr. (Appellant) appealed from the judgment of
sentence entered following his guilty pleas to crimes related to his
dissemination of child pornography. Appellant’s counsel originally filed in
this Court a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We denied counsel’s petition and remanded for the
filing of new briefs on the issue of whether Appellant’s convictions for
dissemination of four items of child pornography should have merged for
sentencing purposes with his convictions for possession of those same four
images. See Commonwealth v. Peoples, 376 MDA 2016 (Pa. Super.
December 23, 2016) (unpublished memorandum). After review of those
* Retired Senior Judge assigned to the Superior Court.
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briefs, we conclude that the convictions do merge for sentencing purposes.
Accordingly, although we affirm his judgment of sentence in all other
respects, we vacate four of his sentences for possession of child
pornography.
Appellant pled guilty in 2004 to various crimes at two docket numbers.
Relevant to the issue before us, Appellant pled guilty in case number 337 to
four counts of dissemination of child pornography under 18 Pa.C.S.
§ 6312(c)(1), and four counts of possession of child pornography under 18
Pa.C.S. § 6312(d)(1),1 based upon his possession and internet transmission
of the four images with file names “hayley016.jpg,” “hayley017.jpg,”
“hayley018.jpg,” and “felisha13.jpg.” In 2005, Appellant was sentenced,
inter alia,2 to an aggregate sentence of 72 to 180 months of imprisonment
on the dissemination counts and concurrent sentences of six to 12 months
on each of the possession counts.
After numerous procedural missteps discussed at length in our prior
memorandum, Appellant’s direct appeal came before us in 2016. Upon
review of counsel’s Anders brief, we agreed that there was no merit to the
claim that Appellant was not sentenced in accordance with the plea
agreement, nor to most claims that his convictions should have merged for
1
The version of the statute under which Appellant was convicted was
effective from January 21, 2003 to September 13, 2009.
2
Appellant’s aggregate sentence for all convictions at both docket numbers
amounted to 176 to 424 months of incarceration.
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sentencing purposes. However, we determined that the claim that the
possession and dissemination convictions based upon the same four images
“is not so clearly devoid of merit to warrant classifying this appeal as
frivolous.” Peoples, 376 MDA 2016 (unpublished memorandum at 15).
Rather, we concluded “that counsel is able to put forward good-faith
arguments that Appellant is serving an illegal sentence.” Id. Appellant and
the Commonwealth have filed their briefs, and the issue is ripe for
determination.
We begin by reiterating the applicable law.
The purpose of the merger doctrine is double jeopardy-based,
i.e., to safeguard against multiple punishments for the same act.
The test for sentencing merger is the same test utilized to decide
whether more than one offense has been committed in the
double jeopardy context. …[T]he fact that this Court employs
the same analysis in double jeopardy and sentencing merger
cases is a function of the Double Jeopardy Clause’s prohibition …
which protects against both successive punishments and
successive prosecutions for the same offense. The United States
Supreme Court has explained, however, that [e]ven if the crimes
are the same[,] ... if it is evident that a state legislature
intended to authorize cumulative punishments, a court’s inquiry
is at an end.
Commonwealth v. Davidson, 938 A.2d 198, 217-18 (Pa. 2007)
(footnotes, citations, and quotation marks omitted). The statute governing
merger provides as follows.
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
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court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765.
The applicable statute prohibiting possession of child pornography
stated the following: “Any person who 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. § 6312(d)(1).
The statute regarding dissemination of child pornography provided as
follows.
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.
18 Pa.C.S. § 6312(c)(1).
Contrary to the Commonwealth’s argument, see Commonwealth’s
Brief at 11-12, it is clear that all of the elements of possession under
subsection (d)(1) are included within the elements of dissemination under
subsection (c)(1). We agree with Appellant that, from the plain language of
the statutes, one simply cannot be guilty of disseminating child pornography
without also being guilty of possessing it. Appellant’s Brief at 9.
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To determine whether Appellant legally received separate sentences
for possessing the four images that he disseminated, the question we must
decide is whether Appellant’s possession and dissemination were separate
criminal acts as to each image, or whether the possession and dissemination
of each was a single criminal act. Our decision is guided by the following
principles.
“When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a break in the chain of
criminal activity.” Commonwealth v. Martinez, 153 A.3d 1025, 1030 (Pa.
Super. 2016) (citation and internal quotation marks omitted). Rather, “[t]he
issue is whether the actor commits multiple criminal acts beyond that which
is necessary to establish the bare elements of the additional crime….” Id.(citation and internal quotation marks omitted). Importantly, “[w]hen
determining whether separate crimes constitute a single criminal act, this
Court has stated that we should look to the elements of the crimes involved
as charged by the Commonwealth.” Commonwealth v. Kimmel, 125 A.3d
1272, 1276 (Pa. Super. 2015) (en banc) (citations and internal quotation
marks omitted).
The analysis in the Kimmel case is instructive. In that case, Kimmel
received separate sentences for driving under the influence (DUI) and
fleeing while DUI, and argued that the former should have merged with the
latter. The convictions were based upon the following facts.
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Officer Jason Beltz conducted a traffic stop based on his
suspicion that [Kimmel] was driving while intoxicated. [Kimmel]
stopped his truck and exhibited signs of intoxication. [Kimmel]
then became combative, and the officer took [Kimmel’s] keys.
[Kimmel] then returned to his truck, locked the door, and
retrieved a second set of keys from his pocket. At this juncture,
[Kimmel] chose to again drive the truck while intoxicated while
fleeing from Officer Beltz, and [Kimmel] was arrested at the
conclusion of his drunken flight. The circumstances here are
straightforward: there was the initial DUI, followed by a traffic
stop, followed by [Kimmel’s] choosing to flee while DUI.
Kimmel, 125 A.3d at 1276 (citations omitted). This Court held that there
were separate criminal acts, and hence merger did not apply, as “the
affidavit of probable cause, the criminal complaint, and the criminal
information reveal[ed] that [Kimmel] was charged with committing DUI and
charged with felony fleeing because, after the traffic stop, he fled while in
violation of the DUI statute.” Id. at 1277 (emphasis and citation omitted).
We have found no authority addressing the issue as to possession and
dissemination under 18 Pa.C.S. § 6312. The most analogous factual
scenario on which there is case law involves possession and delivery of
controlled substances under 35 P.S. § 780-113. In such instances, we have
held that sentence merger does apply, as “[t]he crime of simple possession
is a lesser-included offense of both possession with the intent to deliver a
controlled substance, and delivery of a controlled substance.”
Commonwealth v. DeLong, 879 A.2d 234, 237 n.2 (Pa. Super. 2005)
(citations omitted).
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For example, in Commonwealth v. Eicher, 605 A.2d 337, 342 (Pa.
Super. 1992), Eicher sold 7.1 grams of cocaine to an undercover officer. A
subsequent search of Eicher’s home turned up an additional 74.74 grams of
cocaine. His sentences for possession, possession with intent to deliver, and
delivery as to the 7.1 grams merged for sentencing purposes, “because the
possession, possession with the intent to deliver and the delivery of the
identical substance arose out of the same transaction and all were premised
on the same set of facts.” Id. at 353. However, a separate sentence for
possession of the 74.74 grams found at his residence was appropriate
because the “conviction for the possession of the 74.74 grams of cocaine
arose out of a completely different set of additional facts which were
unrelated to and which were unnecessary to sustain appellant’s delivery
conviction.”3 Id.Turning to the instant case, the Commonwealth maintains that
Appellant’s possession and dissemination of the same four images were
separate criminal acts. First, the Commonwealth reiterates the principle that
we acknowledged in our prior memorandum: that each viewing of an image
of child pornography revictimizes the child depicted. Commonwealth’s Brief
at 5 (citing Davidson, 938 A.2d at 219); see also Peoples, 376 MDA 2016
3
Comparing Eicher to the instant case demonstrates why there is no doubt
that Appellant’s convictions at case number 337, which were based upon the
four images he disseminated, do not merge with his convictions at case
number 338, which were based upon eight different images retrieved in the
subsequent search of Appellant’s computer.
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15. (unpublished memorandum at 15). Because of the permanent nature of
the images of pornography, the child once exploited by the possessor is
subject to a new exploitation by the person to whom the image is
disseminated. “It follows that each possession and each dissemination
should be considered as a separate act.” Commonwealth’s Brief at 6.
Looking to the criminal information, criminal complaint, and affidavit of
probable cause, the Commonwealth charged Appellant with disseminating
four specific images “on or about” January 16, 2004, “at approximately 1616
hours.” Criminal Complaint, 1/20/2004, at 1-2; see also Affidavit of
Probable Cause, 1/20/2004, at 3-4; Information, 5/21/2004, at 1-2
(unnumbered). It also charged him for possessing those four images on his
computer hard drive “on or about said date.” Criminal Complaint,
1/20/2004, at 2.
Nothing in the charging documents here suggests that Appellant’s
possession of the images was anything more than incidental to his
dissemination of them. In secondarily charging Appellant with possession of
each image that he disseminated, the Commonwealth did not include any
factual allegations to suggest that he possessed the images at a time other
than when he disseminated them, or for a purpose other than their
dissemination. The crimes, as charged, are one criminal act akin to Eicher’s
possession and delivery of the same 7.1 grams of cocaine, rather than
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separate incidents like Eicher’s additional possession of 74 more grams of
cocaine, or Kimmel’s pre-stop DUI and post-stop fleeing while DUI.
Courts in other jurisdictions presented with charges similar to those in
the instant case have held that the crimes as charged stemmed from a
single criminal act. See State v. Bertsch, 707 N.W.2d 660, 666 (Minn.
2006) (“Because there is no evidence in the record that demonstrates
Bertsch possessed the files named in the possession counts for a separate
purpose than the files that were disseminated, the district court’s implicit
determination that the dissemination and possession offenses were not a
single behavioral incident is erroneous….”); State v. Kamaka, 277 S.W.3d
807, 812 (Mo. Ct. App. 2009) (“Because Kamaka did not perform a different
act or form a new mens rea in retaining the same file that was disseminated
from his computer, his conduct constituted the ‘same conduct’ for purposes
of double jeopardy analysis.”).
Therefore, we conclude that, based upon the way the crimes are
charged at docket number CP-35-CR-0000337-2004, Appellant’s four
convictions for possession of child pornography merge for sentencing
purposes with his convictions for disseminating child pornography.
Our holding is specific to the facts charged by the Commonwealth in
this case, and is not a generally-applicable determination that possession
merges with dissemination for sentencing purposes. If the Commonwealth
were to charge a defendant with possessing an image of child pornography
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at a time or for a purpose different from his disseminating it, that could
constitute two different criminal acts and defeat merger. But those are not
the charges the Commonwealth made in this case. Here, the
Commonwealth charged Appellant with both possessing and disseminating
the same images at the same time on the same date. That constitutes one
criminal act per image. Accord Bertsch, 707 N.W.2d at 666 (“We do not
hold that possession is always an included offense of dissemination, but the
manner in which the state charged the offenses here makes it impossible to
distinguish one offense from the other….” (footnote omitted)).
Accordingly, we vacate Appellant’s four six-to-12-month sentences at
counts five through eight of that case.4 Appellant’s judgment of sentence is
affirmed in all other respects.
Judgment of sentence affirmed in part and vacated in part. Motion to
discontinue is dismissed as moot. Jurisdiction relinquished.
4
Because those four sentences were ordered to run concurrently with each
other and with the dissemination sentences, our ruling does not disturb the
overall sentencing scheme. Thus, there is no need for us to remand the
case for resentencing. See, e.g., Commonwealth v. Melvin, 103 A.3d 1,
56 (Pa. Super. 2014) (“This Court has the authority to correct an illegal
sentence directly rather than to remand the case for re-sentencing so long
as we do not disrupt the trial court’s sentencing scheme in doing so.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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