NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
:
BROCK E. MOORE :
:
Appellant : No. 129 MDA 2026
Appeal from the PCRA Order Entered January 5, 2026 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000520-2020
BEFORE: PANELLA, P.J.E., NICHOLS, J., and NEUMAN, J. MEMORANDUM BY NEUMAN, J.: FILED: AUGUST 25, 2026 Appellant, Brock E. Moore, appeals pro se from the post-conviction court’s January 5, 2026 order denying his timely petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
This Court previously summarized Appellant’s underlying convictions, as follows:
Appellant was initially charged in connection with allegations that he had inappropriate sexual contact with a juvenile male. He was also charged with failing to register a Snapchat handle that he used to contact minors. As Appellant was previously convicted of a sexual offense in New York in 2014, Appellant was required to register all social media handles.
After further investigation, the prosecution added five charges against Appellant for possessing child pornography which Appellant obtained by posing as a female on Facebook Messenger, attracting five juvenile males, and convincing them to share explicit photos of themselves.
On September 14, 2021, Appellant pled guilty to five counts of sexual abuse of children [(hereinafter referred to as child pornography)], one count of failure to comply with registration requirements, and one count of corruption of minors.[1] In his plea colloquy, Appellant agreed that as a result of his convictions, he was required to comply with the Sexual Offender Registration and Notification Act (SORNA)[2] under which Appellant would be classified as a Tier III offender that required lifetime registration.
Appellant admitted that he understood … he was required to submit to a[ sexually violent predator (SVP)] evaluation by the Sexual Offenders Assessment Board (SOAB). Appellant completed a written waiver requesting that he be sentenced before the SOAB evaluation was completed pursuant to Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011).
On January 6, 2022, the trial court sentenced Appellant to one to four years’ imprisonment on each count of [child pornography], twenty-one to forty-eight months’ imprisonment for failure to comply with registration requirements, and nine to twenty-four months’ imprisonment for corruption of minors. As each individual sentence ran consecutively, Appellant received an aggregate sentence of seven and [a] half to twenty-six years’ imprisonment.
Commonwealth v. Moore, 307 A.3d 95, 97 (Pa. Super. 2023) (unnecessary capitalization omitted).
On April 19, 2022, the court conducted an SVP hearing, at the conclusion of which it deemed Appellant to be an SVP. Id. at 98. Appellant thereafter filed an untimely post-sentence motion seeking to withdraw his plea, arguing he “was not aware that the Commonwealth would pursue an SVP determination.” Id. The trial court denied that motion. Id. at 99. Appellant then filed a timely direct appeal, arguing the court erred by denying his motion
to withdraw his plea and in deeming him an SVP. Id. This Court concluded
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1 18 Pa.C.S. §§ 6312(d), 4915.1(a)(1), and 6301(a)(1)(i), respectively.
2 42 Pa.C.S. §§ 9799.10-9799.75.
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he waived his challenge to the court’s denying his motion to withdraw his plea, as that request was not timely filed. Id. at 99-100. Regarding his challenge to his SVP designation, we concluded it “was supported by sufficient evidence[,]” and Appellant’s claim the court should not have found the Commonwealth’s expert credible went “to the weight of the evidence, which Appellant did not challenge.” Id. at 103. Thus, we affirmed Appellant’s judgment of sentence on December 1, 2023. Id. On December 29, 2023, Appellant filed a timely petition for allowance of appeal to our Supreme Court.3 On August 7, 2024, the Supreme Court denied Appellant’s petition. See Commonwealth v. Moore, 323 A.3d 1270 (Pa. 2024).
On September 6, 2024, Appellant filed the pro se PCRA petition underlying his instant appeal. Tyler Calkins, Esq., was appointed to represent him. Although Appellant was represented by counsel, he filed numerous pro se documents, which are not pertinent to the claims he raises herein.4 Ultimately, Attorney Calkins determined Appellant’s claims are meritless, and
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3 We point out that, while Appellant’s petition for allowance of appeal was pending, he filed a pro se PCRA petition on January 26, 2024. The court appointed Jordan Leonard, Esq., who filed a petition to withdraw on February 12, 2024, concluding Appellant’s claims were “not ripe” for review “due to the fact [Appellant] had filed a petition with the Pennsylvania Supreme Court for allowance of appeal, which remained ‘active.’” PCRA Court Opinion (PCO), 9/23/25, at 2 (cleaned up). On February 23, 2024, the trial court dismissed Appellant’s petition and granted Attorney Leonard’s petition to withdraw.
4 The PCRA court aptly summarized the content of those pro se filings, and its
handling thereof, in its opinion filed on September 23, 2025. See PCO at 3- 5.
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filed a petition to withdraw, along with a Turner/Finley ‘no merit’ letter.5 Appellant responded by filing multiple pro se documents, including a pro se PCRA petition on June 2, 2025. See PCO at 6. Based on Appellant’s statements in his pro se filings, the PCRA court scheduled a Grazier hearing.6 Id. at 7. After the hearing, the court issued an order on September 19, 2025, granting Attorney Calkins’ motion to withdraw and permitting Appellant to represent himself. “The [c]ourt indicated it would consider [Appellant’s] pro se … []PCRA[] petition filed [on] June 2, 2025.” Id. Therein, Appellant argued: “(i) the Commonwealth breached the plea agreement; (ii) the Court erred by designating [Appellant] a[n] …[]SVP[]; (iii) double jeopardy prevents his prosecution and conviction; and (iv) ineffectiveness of counsel.” Id.
On September 23, 2025, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a hearing. In an opinion accompanying that order, the court explained why Appellant’s issues are previously litigated and/or meritless. Id. at 7-14. Appellant filed a pro se response. On November 21, 2025, the court issued an order stating one issue raised in Appellant’s pro se response “could justify an evidentiary hearing” if found to be true. Order, 11/21/25, at 1. Namely, Appellant contended “a written agreement was reached and executed at the preliminary hearing[,]
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5 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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both by [Appellant] and Assistant District Attorney [(ADA)] Brian Gallagher[, which] expressly stated [Appellant] would receive ‘concurrent’ sentences and … he would not be designated a[s an SVP].” Id. (citation to the record omitted). The court noted Appellant had attached to his response “a document titled[, ‘Agreement at Preliminary Hearing[,’]” which arguably — although not unequivocally — seemed to support his version of the plea agreement, based on handwritten notes on that document. Id. However, because the document conflicted with “the specific terms and conditions of the plea agreement as stated orally in open court,” the PCRA court directed
Appellant’s trial counsel, Arthur Agnellino, Esq., and the Commonwealth to file … their versions of the [“]Agreement at Preliminary Hearing[,”] to the extent they have such a document, together with any sworn statement of explanation, if necessary, to confirm or refute that the version provided by [Appellant] is authentic and a fair and accurate representation of the written agreement executed at the preliminary hearing.
Id. at 2.
On November 25, 2025, ADA Gallagher filed an affidavit with an attached “true and correct copy of the written agreement reached on August 30, 2021.” Affidavit, 11/25/25, at unnumbered 1. According to ADA Gallagher and the attached document, he handwrote “that [the Commonwealth] would recommend consecutive sentences at the bottom of the standard range.” Id. at unnumbered 1. ADA Gallagher stated Appellant’s copy of the agreement, on which “consecutive” was crossed out and “concurrent” was handwritten above, was “inauthentic to say the least.” Id. at unnumbered 2. Although
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ADA Gallagher did not explicitly mention any agreement regarding Appellant’s SVP status, he averred Appellant’s response to the court’s Rule 907 notice was an attempt to commit fraud on the court, as Appellant was “knowingly submitting false evidence.” Id. The record indicates that on December 19, 2025, Attorney Agnellino filed an affidavit with the court, but that document is not included in the certified record.
Ultimately, on January 5, 2026, the PCRA court issued an order dismissing Appellant’s petition without a hearing. Appellant filed a timely, pro se notice of appeal on January 20, 2026. That same day, he filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, despite not yet
being ordered to do so by the court.7 On March 4, 2026, the PCRA court
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7 This Court has held that when an appellant files a Rule 1925(b) statement
before the trial court orders one, “there is no need for the trial court” to request one. Commonwealth v. Nobles, 941 A.2d 50, 52 (Pa. Super. 2008). Here, although Appellant had already filed a Rule 1925(b) statement, on January 28, 2026, the court issued an order directing him to file a Rule 1925(b) statement within 21 days. Appellant was served with that order on January 30, 2026. The record indicates Appellant then mailed a copy of his previously-filed statement to the judge but did not re-file it. See Order, 2/25/26, at 1 (single page) (indicating Appellant had sent various documents, including his Rule 1925(b) statement, directly to the judge, but did not file them of record). See also Statement in Lieu of Opinion Pursuant to Rule 1925(a), 3/4/26, at 1 n.1 (stating that, “[d]espite repeated directives to stop” his practice of mailing pro se documents directly to the judge, Appellant mailed his Rule 1925(b) statement to the judge “without filing” that document). The court then “forwarded [those documents] to the Clerk of Courts for filing and processing in accordance with [Pa.R.Crim.P.] 576([a])[,]” resulting in Appellant’s Rule 1925(b) statement being filed on February 25, 2026. Order at 1 (single page). See also Statement in Lieu of Opinion Pursuant to Rule (Footnote Continued Next Page)
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issued a “Statement in Lieu of Opinion Pursuant to Rule 1925(a),” indicating it was relying, inter alia, on its September 23, 2025 opinion (accompanying its Rule 907 notice) to support its dismissal of Appellant’s petition. See Statement in Lieu of Opinion Pursuant to Rule 1925(a) at 1.
Herein, Appellant states six issues for our review:
A. Whether the prosecutor breached the contracted plea agreement and committed procedural errors in regard[] to the … []SVP[] status?
B. Whether the evidence supports a[n] … []SVP[] status?
C. Whether double jeopardy applies to the five (5) counts of child pornography?
D. Whether defense counsel ([Attorney] Agnellino…[)] … [rendered] ineffective assistance of counsel?
E. Whether the … []PCRA[] court committed reversible errors or abused its discretion as a matter of law by denying … Appellant’s … []PCRA[] petition without conducting an evidentiary hearing pursuant to Pa.R.Crim.P 907 [and] 908?
F. Whether the lower court committed Brady[8] violation(s)?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
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1925(a) at 1 n.1 (stating the court “caused such documents to be filed with the Clerk of Courts and delivered to the Commonwealth”).
Given this procedural posture, we will not deem Appellant’s claims waived based on his failure to timely re-file his concise statement following the court’s January 28, 2026 order. Appellant had already filed a concise statement on January 20, 2026, and the court’s order did not explicitly direct him to re-file that statement. Thus, it was reasonable for pro se Appellant to conclude his filing of the statement on January 20, 2026, was sufficient to satisfy the court’s subsequent order. 8 Brady v. Maryland, 373 U.S. 83 (1963).
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Initially, we note:
“In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error.” Commonwealth v. Johnson, … 966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the findings of the PCRA court, “but its legal determinations are subject to our plenary review.” Id.
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
Breach of Plea Agreement
In Appellant’s first issue, he contends ADA Gallagher “breached the contracted plea agreement and committed procedural errors in regard[] to the … []SVP[] status.” Appellant’s Brief at 13. Essentially, Appellant alleges ADA Gallagher agreed, as part of the plea, not to seek SVP status for Appellant. However, after Appellant entered his plea, ADA Gallagher “breached the contracted plea agreement when he changed the agreement without notice to … Appellant or his attorney at the [s]entencing [h]earing.” Id. at 14.
Initially, we consider Appellant’s argument as a request to enforce the plea agreement, which he believes has been breached. Our Court has held that “a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance. The designation of the petition does not preclude a court from deducing the proper nature of a pleading.” Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa. Super. 2019) (citations omitted). Additionally, we have explained:
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“Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards.” Commonwealth v. Snook, 230 A.3d 438, 444 (Pa. Super. 2020) (citation omitted). “Contract interpretation, including in the criminal plea-bargaining process, is a question of law. Therefore, our standard of review is de novo, and to the extent necessary, the scope of our review is plenary.”
Commonwealth v. Coleman, 320 A.3d 1217, 1222 (Pa. Super.
2024) (citations and internal quotation marks omitted).
Because plea bargains are integral to our criminal justice system, “it is critical that plea agreements are enforced, to avoid any possible perversion of the [plea-bargaining] system.” Snook, 230 A.3d at 444 (citation omitted). Prior to entering a negotiated plea, the parties to the agreement “shall state on the record in open court, in the presence of the defendant, the terms of the agreement[.]” Pa.R.Crim.P. 590(B)(1). “[W]hen the parties enter the plea agreement and the court accepts and approves the plea, then the parties and the court must abide by the terms of the agreement.” Snook, 230 A.3d at 444 (citation omitted).
“[D]isputes over any particular term of a plea agreement must be resolved by objective standards.” Id. (citation omitted).
“Whether a particular plea agreement has been breached depends on what the parties to the agreement reasonably understood to be the terms of the agreement.” Id. (citation omitted).
“Specific performance is a traditional contract remedy that is available when monetary damages are inadequate” and is generally “reserved for remedying an injured party to a fully consummated agreement, such as an agreed-upon and executed plea bargain.” Commonwealth v. Cosby, 252 A.3d 1092, 1143 (Pa. 2021) (internal quotation marks and citations omitted). “[A]
convicted criminal is entitled to the benefit of his bargain through specific performance of the terms of the plea agreement.”
Commonwealth v. Moose, 245 A.3d 1121, 1130 (Pa. Super.
2021) (brackets and citation omitted). “A determination of exactly what promises constitute the plea bargain must be based upon the totality of the surrounding circumstances and involves a case-by-case adjudication.” Id. (citation omitted). Where a party to a plea agreement alleges that he was denied the benefit of his bargain, “a court must determine whether an alleged term is part of the parties’ plea agreement” prior to awarding specific performance of the term. Id. (citation omitted).
10
Commonwealth v. Brown, No. 878 EDA 2025, unpublished memorandum at 5-7 (Pa. Super. filed Mar. 6, 2026).9 Here, in concluding Appellant’s plea did not include an agreement that the Commonwealth would not seek SVP status for Appellant, the PCRA court explained:
[O]n September 14, 2021, the date of the plea hearing, [Appellant] completed a written Plea Colloquy and written Notification of Duty to Register as an Adult Sexual Offender Under … SORNA with his counsel. He was also orally colloquied by [the court], confirming, among other things, that (i) he had a “clear mind,” (ii) that his understanding of the plea agreement was as stated on the record, (iii) that he understood “each of these sentences can be imposed consecutively,” and (iv) that he further understood that “there’s going to be a[n SVP] determination[.]”
See [N.T., 9/14/21, at] 5[,] 14[].
***
[Appellant]’s claim that [ADA] Gallagher stated the Commonwealth “would not proceed with a[n SVP] hearing” is … belied by the record, which confirms the SVP hearing was discussed, contemplated, and a necessary consequence of his guilty plea:
The Court: Are we going to need to have a[n SVP]
evaluation done?
ADA [Gallagher]: … [T]he law requires a SOAB assessment.
The Court: Okay.
ADA [Gallagher]: And then based on their evaluation we’ll, I’ll either file a praecipe or not.
***
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9 Pursuant to Pennsylvania Rule of Appellate Procedure 126, unpublished, non-
precedential memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).
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The Court: Alright. So, you understand sir, that there’s going to be a[n SVP] determination done?
[Appellant]: Yes.
The Court: … We’re going to have a hearing. Since, if you’re tier three, I’m not sure it affects much, but it may add some additional requirements. Do you waive the right to have that evaluation done before sentencing? Or do we want to push [sentencing] off?
***
Defense: I, we would waive it Judge. I’ll have to do a waiver.
The Court: So[,] fill out a Whanger waiver.
Defense: Yes, I’ll fill it out.
***
See N.T. [at] 13[], 14[].
To confirm that [Appellant] understood all of the waivers, [the court] told defense counsel and [Appellant] to return to the court room if they had any questions:
The Court: So, you’ll need to fill out a SORNA notification form and the Whanger waiver, make sure you use the one for plea colloquy…. And if you have any questions[, Appellant,] after you’ve completed those forms with [Attorney] Agnellino, I want you to make sure you come back in the courtroom, okay?
[Appellant]: Okay.
The Court: So that we can take care of any questions that you have.
[Appellant]: Okay.
Defense: I almost wonder, though, the need for it, because he’s going to do a lifetime registry anyway. There’s really not much more -
The Court: I know but there’s still -
Defense: - (inaudible).
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ADA [Gallagher]: The main difference is gonna [sic] be if he is designated an[] … SVP[,] the state police will go door to door and notify people in-person, that will be the big difference.
Defense: Okay…[.]
[Id.] 14[,] 15[].
[Appellant] simply has no room to argue that he was misled by the Commonwealth’s attorney into thinking … there would be no SVP hearing when the exact opposite was discussed at the plea hearing. There was no apparent confusion and [Appellant]
repeatedly confirmed he understood the specific terms of the plea agreement.
PCO at 9-12 (quoting Trial Court Opinion, 5/27/22, at 2-3 (footnote omitted)) (emphasis added).
The record fully supports the PCRA court’s summary of what occurred at Appellant’s plea proceeding, and demonstrates Appellant’s plea did not include an agreement the Commonwealth would not seek his SVP designation. Moreover, from the above-bolded portion of the transcript, it is clear Appellant understood there would be an SVP determination completed. Appellant does not acknowledge the above-quoted portions of the transcript but, instead, relies on handwritten portions of the “Agreement at Preliminary Hearing” document, discussed supra, to support his interpretation of the plea agreement. See Appellant’s Brief at “Exhibit C.” However, as we detailed above, ADA Gallagher filed an affidavit with the PCRA court challenging the validity of that document filed by Appellant, claiming it was fraudulent. The court’s ultimately denying Appellant’s petition without a hearing indicates it found credible ADA Gallagher’s affidavit. Moreover, even if Appellant’s
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document did accurately reflect the agreement at the time of the preliminary hearing on August 30, 2021, the above-quoted portions of the plea proceeding held on September 14, 2021, demonstrate that the guilty plea ultimately entered by Appellant did not contain a promise that the Commonwealth would not seek his SVP status. Rather, the discussion at the plea proceeding made it clear an SVP determination would be sought, and Appellant understood that fact. Thus, Appellant’s claim the Commonwealth breached his plea agreement is meritless.
Sufficiency of the Evidence for SVP Status Next, Appellant argues “the Commonwealth failed to present clear and convincing evidence that he should be classified as an SVP because the mental abnormality/personality disorder relied upon [by] the evaluator, hebephilia, is not recognized in the Diagnostic and Statistical Manual Version V (DSM-V), as acknowledged by the evaluator.” Id. at 18. He further contends the SVP “determination was made based on unconfirmed psychological testimony, hearsay information[,] and mistaken facts/unfound[ed] assumptions.” Id. at 20. Accordingly, he maintains “the finding of the lower court that … Appellant is a[n SVP] should be reversed….” Id. at 22.
As set forth above, this Court concluded on direct appeal that Appellant’s SVP designation is supported by sufficient evidence. See Moore, 307 A.3d at 103. Thus, Appellant’s instant claim has been previously litigated, making him ineligible for post-conviction relief. See 42 Pa.C.S. § 9543(a)(3) (stating to be eligible for PCRA relief, the petitioner must prove “the allegation of error
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has not been previously litigated or waived”); 42 Pa.C.S. § 9544(a) (stating a claim has been previously litigated if “the highest appellate court in which a petitioner could have had review as a matter of right has ruled on the merits of the issue”). Furthermore, to the extent Appellant raises any distinct arguments that were not specifically raised and addressed on direct appeal, those claims are waived. See 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(b) (declaring “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal[,] or in a prior state postconviction proceeding”).
Double Jeopardy
In Appellant’s third issue, he contends his child pornography convictions violate double jeopardy, as he previously pled guilty in New York to an offense based on those same images. Appellant asserts he did not discover this claim until August 25, 2022, when he received his “case discovery” and found that “the only images present in the case discovery were from his New York State case[,] which he was sentenced for on or about January 14, 2014. The last image was dated February 5, 2013[,] which is evidence that these images [were] resolved as part of … Appellant’s New York State case.” Appellant’s Brief at 24-25. Appellant argues his plea counsel, Attorney Agnellino, was ineffective for permitting him to plead guilty without showing Appellant a copy of this case discovery. Id. at 24.10 He also insists that, to the extent the
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10 We address this claim in discussing Appellant’s fourth issue, infra.
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Commonwealth premised his instant child pornography on other “new” images, those images were not contained in the case discovery and, thus, were withheld from him in violation of Brady. Id. at 25.
No relief is due. Initially, the Commonwealth maintains the images underlying Appellant’s instant convictions “were not the same images relevant to the 2013 New York State prosecution….” Commonwealth’s Brief at 7. More specifically, the record indicates the at-issue images were discovered on September 22, 2020, when “Pennsylvania State Police executed a search warrant on Facebook…, which revealed numerous explicit images of juvenile male genitalia on [Appellant’s F]acebook [M]essenger.” Commonwealth’s Sentencing Memorandum, 12/21/21, at unnumbered 1. Appellant pled guilty to five counts of child pornography, thus admitting he possessed illegal images. Thus, even if the Commonwealth failed to turn over the inculpatory images he possessed prior to his entry of that plea, it did not cause him prejudice or violate Brady. See Brady, 373 U.S. at 87 (holding “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”) (emphasis added). See also Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009) (“Under Brady, the prosecution’s failure to divulge exculpatory evidence is a violation of a defendant’s Fourteenth Amendment due process rights. To establish a Brady violation, a defendant is required to demonstrate that exculpatory or impeaching evidence, favorable to the defense, was
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suppressed by the prosecution, to the prejudice of the defendant.”) (cleaned up; emphasis added).
Moreover, even if it is true that Appellant’s instant child-pornography convictions are premised on the same images as his New York conviction, we agree with the Commonwealth that his “continued retention of those images into Pennsylvania in 2020 would be a new crime.” Commonwealth’s Brief at 7. Appellant’s PCRA counsel, Attorney Calkins, reached the same conclusion in his Turner/Finley no-merit letter, stating:
While it appears that [Appellant] plead [sic] guilty to Possession of Child Pornography in the state of New York[,] Pennsylvania is a separate sovereign, and possession of child pornography was a separate offense committed in the Commonwealth of Pennsylvania because the electronic devices in question were brought from New York to Pennsylvania. For this simple reason I do not believe a double jeopardy issue existed as it pertains to those charges.
No-Merit Letter, 4/4/25, at unnumbered 4.
Appellant presents no challenge to these conclusions by the Commonwealth and Attorney Calkins, with which we agree. Appellant’s possession in Pennsylvania of images of child-pornography permitted the Commonwealth to prosecute him, even if he had been previously convicted for possessing those same images in New York. This Court has explained:
[T]he United States Supreme Court [has] upheld longstanding precedent based on the dual-sovereignty doctrine, which allows separate sovereigns to prosecute a defendant for the same conduct, without violating the defendant’s constitutional double jeopardy protections. Gamble v. United States, [587] U.S.
[678] … (2019).
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***
As between the state and the federal jurisdictions or between the jurisdictions of the different states, Pennsylvania law approaches the test for successive prosecutions, in the context of double jeopardy, via 18 Pa.C.S.[] § 111, which provides:
§ 111. When prosecution barred by former prosecution in another jurisdiction
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is based on the same conduct unless:
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of
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which the defendant is subsequently prosecuted.
18 Pa.C.S.[] § 111 (emphasis added). Section 111(1)(i) generally involves the following study:
The first inquiry is whether … the prosecution which the Commonwealth proposes to undertake involves the same conduct for which the individual was prosecuted by the other jurisdiction. If the answer to this question is yes, then we must determine whether each prosecution requires proof of a fact not required by the other, and whether the law defining the Commonwealth offense is designed to prevent a substantially different harm or evil from the law defining the other jurisdiction’s offense. If the Commonwealth cannot satisfy both of these requisites, then the prosecution may not proceed.
Commonwealth v. Gross, 232 A.3d 819, 835-36 (Pa. Super. 2020) (en banc) (emphasis in original).
Here, even if the images underlying Appellant’s instant child-
pornography convictions were the same as those underlying his New York conviction, the prosecution did not involve the same conduct, as Appellant separately possessed those images in New York and in Pennsylvania. Moreover, even if this first inquiry was satisfied, Appellant provides no discussion of whether each prosecution required proof of a fact not required by the other. Thus, we agree with the Commonwealth and Attorney Calkins there is no arguable merit to his double jeopardy claim.
Ineffective Assistance of Counsel Appellant next contends Attorney Agnellino was ineffective in various regards. Specifically, he argues Attorney Agnellino “on several occasions used foul language and screamed at … Appellant’s mother for simply trying to ask
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him questions that pertained to her son and his criminal case.” Appellant’s Brief at 27. Counsel also purportedly failed to return Appellant’s or his mother’s phone calls or emails, did not show Appellant any discovery prior to Appellant’s plea, failed to object at sentencing when ADA Gallagher purportedly violated the plea agreement by seeking SVP status for Appellant, and “failed to argue that the victim in this case … lied about his age on his Facebook account.” Id. at 28-29.
Preliminarily, we note:
[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.
2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...
(1984)]). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See [Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1)
his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, … 10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of these prongs, his claim fails.” Commonwealth v. Simpson, … 66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally, counsel’s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client’s interests. See Ali, supra.
Where matters of strategy and tactics are concerned, “a finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course
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actually pursued.” Colavita, … 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Commonwealth v.
King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation marks, and citation omitted). “‘[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)
(citing Strickland, 466 U.S. at 694…)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Here, Appellant has not alleged how Attorney Agnellino’s purported yelling, use of foul language, and failure to return his phone calls and emails caused him prejudice. Thus, he has not proven counsel acted ineffectively in these regards.
Likewise, based on our discussion of Appellant’s third issue, he has failed to prove Attorney Agnellino acted ineffectively by not showing Appellant the case discovery before he pled guilty. Appellant reiterates his argument that, had he been shown the discovery, he would have realized the images on which his child-pornography charges are based were also used to convict him in New York. However, for the reasons set forth above, we have concluded his underlying double-jeopardy claim lacks arguable merit. Thus, counsel cannot be deemed ineffective on this basis.
Additionally, in considering Appellant’s first issue, we found no merit to his contention that his plea agreement was violated when ADA Gallagher sought his SVP designation. As such, no relief is due on Appellant’s claim that
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Attorney Agnellino acted ineffectively by not objecting to the Commonwealth’s seeking an SVP determination at Appellant’s sentencing.
Finally, as Appellant pled guilty, he has not demonstrated he was prejudiced by counsel’s decision not to challenge the victim’s credibility. See Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (stating “upon entry of a guilty plea, a defendant waives all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the ‘legality’ of the sentence imposed”) (citations omitted).
Evidentiary Hearing
Next, Appellant claims the PCRA court erred by not conducting an evidentiary hearing. It is well-settled
[t]here is no absolute right to an evidentiary hearing on a [PCRA]
petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.
Commonwealth v. McCready, 295 A.3d 292, 298 (Pa. Super. 2023) (quoting Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019)).
Here, aside from citing the legal principles relevant to PCRA evidentiary hearings, Appellant simply states that, “[b]ecause … [his] PCRA petition was meritourious [sic] and raised material issues of fact, an evidentiary hearing
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was required.” Appellant’s Brief at 31. Appellant does not specifically identify any genuine issues of material fact left outstanding, and our review of his claims demonstrates they are meritless based on the record before us. Therefore, he has not established any error in the PCRA court’s denial of his petition without a hearing.
Brady Violations
Finally, Appellant contends the PCRA court “committed violations under Brady….” Id. at 32. Specifically, Appellant argues his “case filings and information” has been “sent … to a Restricted Participant.” Id. He maintains “[t]he courts and prosecution denied … Appellant his equal protection rights of the Sixth … Amendment by failing to disclose who the Restricted Participant is on the Docket Sheet for said case[,] which made the plea unconstitutional….” Id. Appellant also reiterates his argument that the Commonwealth violated Brady by failing to disclose “the ‘alleged’ new images of child pornography that … Appellant was being charged for in Bradford County (PA).” Id. at 33.
No relief is due. First, we have already rejected Appellant’s allegation that the Commonwealth violated Brady for not disclosing any ‘new’ images on which his child-pornography charges were premised. Thus, no relief is due on that claim. Second, Appellant does not identify where the docket indicates filings were served or sent to a ‘Restricted Participant,’ and our review of the record does not reveal any such entries. Thus, Appellant’s final issue is meritless.
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Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 8/25/2026