Com. v. Bonafide, N. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
NICHOLAS ANDREW BONAFIDE
Appellant : No. 1292 MDA 2019
Appeal from the Judgment of Sentence Entered July 9, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001938-2018
BEFORE: NICHOLS, J., MCLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 22, 2021
Appellant Nicholas Andrew Bonafide appeals from the judgment of
sentence following a guilty plea to indecent assault.! Appellant’s counsel has
filed a petition to withdraw and an Anders/Santiago?2 brief. We grant
counsel’s request to withdraw and affirm.
118 Pa.C.S. § 3126(a)(1). Section 3126(a)(1) is categorized as a Tier I sexual
offense under revised Subchapter H, 42 Pa.C.S. § 9799.15(a)(1) of the
amended Sex Offender Registration and Notification Act (SORNA II). We
acknowledge that although the parties, the trial court, and the record use the
term “SORNA,” SORNA II is the applicable statute, and it was enacted before
Appellant committed the instant indecent assault. See 2018, Feb. 21, P.L.
27, No. 10 (Act 10); 2018, June 12, P.L. 140, No. 29, (Act 29); see generally
Commonwealth v. Moose, __ A.3d ___, 1897 MDA 2014, 2021 WL 19030(Pa. Super. filed Jan. 3, 2021) (en banc).
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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We adopt the trial court’s facts and procedural history. See Trial Ct.
Op., 8/17/20, at 1-5. Briefly, at docket 1938-2018, on September 10, 2018,
Appellant committed an indecent assault. On April 16, 2019, Appellant pled
guilty to indecent assault, and executed a written SORNA II colloquy as part
of his written guilty plea colloquy. SORNA Suppl. To Guilty Plea Colloquy,
4/16/19, at 1-4. The SORNA II colloquy stated that Appellant was required
to register for a period of fifteen years. Id. at 1. At sentencing, Appellant
was found not to be a sexually violent predator (SVP). Sentencing Guideline
Form, 7/12/19, at 1.
At docket 18 MD 596, Appellant pled guilty to two separate counts of
indirect criminal contempt, and at docket 19 MD 288, the trial court had earlier
found Appellant guilty of a separate count of indirect criminal contempt. Trial
Ct. Op. at 2-3.3
On July 9, 2019, the trial court sentenced Appellant at all three docket
numbers. Id. at 4-5. Specifically, at docket 1938-2018, the trial court
sentenced Appellant to twelve to twenty-four months’ imprisonment for
indecent assault. At docket 18 MD 596, the trial court sentenced Appellant to
two concurrent sentences of six months’ incarceration, which were made
3 All three contempt convictions were due to Appellant’s violation of the
protection from abuse orders that the indecent assault victim had obtained
against Appellant. Trial Ct. Op. at 4. Specifically, Appellant attempted to
contact, and instructed others to contact, the victim via telephone or social
media. Id. at 2-4.
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concurrent to Appellant’s indecent assault sentence. At docket 19 MD 288,
the trial court sentenced Appellant to six months’ imprisonment, which was
made consecutive to Appellant’s indecent assault sentence. Id. at 5.
Therefore, Appellant’s aggregate sentence, including the indecent assault
sentence, was eighteen to twenty-four months’ imprisonment. Id. Appellant
signed a written notice of his post-sentence rights.
On July 11, 2019, Appellant, then represented by Joseph P. Kalinowski,
Esq., of the Public Defender’s Office, timely filed a counseled motion for
reconsideration of sentence, which requested only that his contempt sentence
at docket 19 MD 288 be run concurrent to his indecent assault sentence. Mot.
for Reconsid. of Sentence, 7/11/19. The trial court denied Appellant’s motion
for reconsideration on July 29, 2019.
On August 1, 2019, Appellant, who was still represented by Attorney
Kalinowski, filed a pro se notice of appeal, which listed only the above-
captioned docket number of 1938-2018.* Notice of Appeal, 8/1/19.
Appellant’s notice of appeal only stated he wanted to challenge his “sentence
for. ..SORNA.” Id. (formatting altered). Appellant’s notice of appeal did
4 The notice of appeal, which was timestamped by the trial court, was not
transmitted to this Court as part of the certified record, but a copy of the
notice was docketed in this Court. See Commonwealth v. Williams, 151
A.3d 621, 624 (Pa. Super. 2016) (holding “that this Court is required to docket
a pro se notice of appeal despite Appellant being represented by counsel...
),
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not state that Appellant wanted to appeal the contempt sentences at docket
numbers 18 MD 596 or 19 MD 288.
On August 8, 2019, the trial court appointed Donna DeVita, Esq., also
of the Public Defender’s Office, as Appellant’s counsel, and ordered her to
comply with Pa.R.A.P. 1925(b).> Order, 8/8/19. Attorney DeVita’s Rule
1925(b) statement raised issues with respect to Appellant’s sentences at
docket numbers 18 MD 596 and 19 MD 288, as well as the indecent assault
sentence at the above-captioned docket number. Rule 1925(b) Statement,
8/29/19. Appellant’s initial Rule 1925(b) statement did not raise any
challenges to SORNA II.
On September 3, 2019, Attorney DeVita filed a supplemental Rule
1925(b) statement, asserting that “the trial court erred when it found that
SORNA applied to him and that he must register for a period of 15 years as
required under SORNA.” Suppl. 1925(b) Statement, 9/3/19. The trial court
filed a responsive Rule 1925(a) opinion, which addressed all the issues raised
in Appellant’s initial and supplemental Rule 1925(b) statements.
Counsel's Anders/Santiago brief identifies the following issues, which
we reordered to facilitate disposition:
1. Whether the Commonwealth proved that the Appellant was
guilty of indirect criminal contempt in [docket number] 19 MD
288.
> The record does not reflect that Attorney Kalinowski requested or was
otherwise granted permission to withdraw.
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2. Whether the sentences imposed on the indirect criminal
contempt charges were unreasonably harsh and excessive
given the de [minimis] nature of the violations.
3. Whether the sentence imposed on the indecent assault charge
was unreasonably harsh and excessive.
4. Whether the trial court erred when it found that SORNA applied
to him and that he must register for a period of 15 years as
required under SORNA.
Anders/Santiago Brief at 4.
Initially, “[w]hen faced with a purported Anders brief, this Court may
not review the merits of any possible underlying issues without first examining
counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d
379, 382 (Pa. Super. 2008) (citation omitted). Appellant’s counsel must
comply with the following:
(1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; (2) file a brief
referring to anything that arguably might support the appeal but
which does not resemble a “no-merit” letter or amicus curiae brief;
and (3) furnish a copy of the brief to the defendant and advise the
defendant of his or her right to retain new counsel or raise any
additional points that he or she deems worthy of the court’s
attention.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (citation
omitted) (en banc).
Additionally, Appellant’s counsel must file a brief that meets the
requirements established by Santiago Court:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
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counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361. Only after determining that counsel has satisfied
these technical requirements, may this Court conduct an independent review
of the record to discern if counsel overlooked any potentially non-frivolous
issues. See Goodwin, 928 A.2d at 292.
Here, Appellant’s counsel has complied with the procedures for seeking
withdrawal by filing a petition to withdraw, sending Appellant a letter
explaining his appellate rights, and supplying Appellant with a copy of the
Anders/Santiago brief. See id. at 290. Moreover, counsel’s
Anders/Santiago brief complies with the requirements of Santiago. See
Santiago, 978 A.2d at 361. The brief includes a summary of the relevant
factual and procedural history, refers to the portions of the record that could
arguably support Appellant’s claims, and sets forth the conclusion that the
appeal is frivolous. Accordingly, we conclude that counsel has met the
technical requirements of Anders and Santiago, and we will proceed to
address the issues raised in counsel's Anders/Santiago brief.
We summarize counsel's discussion of the first two issues. First, counsel
discusses the issue that the Commonwealth failed to prove Appellant was
guilty of indirect criminal contempt at docket number 19 MD 288.
Anders/Santiago Brief at 13. Second, counsel addresses the issue that
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Appellant’s sentences for indirect criminal contempt at docket numbers 18 MD
596 and 19 MD 288 were excessive. Id. Counsel contends that Appellant
waived the issues by failing to file notices of appeal for those dockets. Id.
Counsel did not otherwise develop substantive arguments.
Pennsylvania Rule of Appellate Procedure 341 provides that “[w]here,
however, one or more orders resolves issues arising on more than one docket
or relating to more than one judgment, separate notices of appeal must be
filed.” Pa.R.A.P. 341 note. In Commonwealth v. Walker, 185 A.3d 969(Pa. 2018), our Supreme Court noted that under Rule 341, a single notice of
appeal in a criminal case that seeks appellate review of orders or judgments
arising on more than one docket is not permitted. Id. at 976; accord West's
Pa. Appellate Practice § 341:3.1.02; cf. Commonwealth v. Nichols, 208
A.3d 1087, 1089 (Pa. Super. 2019) (quashing an appeal because the appellant
failed to file separate notices of appeal for each docket number at issue).
Here, pro se Appellant filed a single notice of appeal listing only the
docket number for his indecent assault conviction and challenging only the
SORNA II registration requirement for that conviction. Notice of Appeal,
8/1/19. Appellant, either pro se or through counsel, did not file notices of
appeal from his judgments of sentence at docket numbers 18 MD 596 and 19
MD 288. Because Appellant failed to comply with Rule 341, we lack appellate
jurisdiction to resolve appeals at those docket numbers. See Pa.R.A.P. 341;
Walker, 185 A.3d at 976; cf. Nichols, 208 at 1089. Therefore, we agree
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with counsel that this Court lacks appellate jurisdiction to review those issues.®
See Pa.R.A.P. 341.
Counsel’s third issue is that Appellant’s indecent assault sentence was
unreasonably harsh and excessive. Anders/Santiago Brief at 13-15.
Initially, we note that an allegation that a sentence is excessive is a challenge
to the discretionary aspects of sentencing. See Commonwealth v. Ahmad,
961 A.2d 884, 886 (Pa. Super. 2008).
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
6 We acknowledge the apparent confusion following sentencing, as well as the
appointment of new counsel for the purpose of appeal. Further, it appears
that the trial court issued a single order denying Appellant’s post-sentence
motion listing all three docket numbers but the order indicated that Appellant
could file “an appeal.” If Appellant had filed a single notice of appeal listing
all three docket numbers, then this would have constituted a breakdown as
discussed in Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super.
2019). Unfortunately, Appellant, who was acting pro se at the time, listed
only a single docket number on his notice of appeal. The change in counsel
also may have caused additional confusion, and although counsel had time to
file separate notices of appeal in each case, she did not do so. Instead,
Attorney DeVita filed Rule 1925(b) statements raising issues at all three
docket numbers.
Considering these circumstances, we add that Appellant’s intended sentencing
claims concerning 18 MD 596 and 19 MD 288 were frivolous. See
Anders/Santiago Brief at 6-7. Specifically, Appellant failed to file a post-
sentence motion at 18 MD 596, which precludes him from seeking review of
the discretionary aspects of that sentence. See Commonwealth v. Tukhi,
149 A.3d 881, 888 (Pa. Super. 2016). In 19 MD 288, Appellant’s intended
claim that the imposition of a six-month sentence of incarceration consecutive
to the one-to-two year sentence for indecent assault was excessive fails to
raise a substantial question warranting review. See Commonwealth v.
Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Therefore, even if Appellant
had properly appealed from the sentences in 18 MD 596 and 19 MD 288, and
preserved his issues for appeal, there is no basis in the record or law for relief.
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the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the issue
was properly preserved at sentencing or in a motion to reconsider
and modify sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code.
Tukhi, 149 A.3d at 888 (citations omitted and formatting altered). Here,
Appellant did not file a post-sentence motion at the appropriate docket or
otherwise raise a challenge to his sentence for indecent assault in the
counseled motion filed in 19 MD 288. Therefore, this claim is waived. See
id.
Counsel’s final issue is that the trial court erred when it held that
Appellant must register for fifteen years under SORNA II. Anders/Santiago
Brief at 15. Counsel contends that Appellant waived the issue by not
previously raising it before the trial court. Id, at 16.
In Commonwealth v. Reslink, A.3d , 2020 PA Super 289,
2020 WL 7415959 (Pa. Super. filed Mar. 2, 2021), the defendant was found
not to be an SVP but was subject to lifetime registration as a Tier III offender.
Reslink, 2020 WL 7415959 at *1. For the first time on appeal, the defendant
raised a claim that revised Subchapter H of SORNA II was unconstitutional for
several reasons. Id. at *3.
In holding that the defendant waived the claim, the Reslink Court
reasoned as follows:
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It is well-settled that issues not raised before the trial court cannot
be advanced for the first time on appeal. Pa.R.A.P. 302(a). See
In re F.C. III, 607 Pa. 45, 2 A.3d 1201, 1212 (2010) (finding
appellant’s constitutional claims waived where he failed to raise
them before the lower court, depriving that tribunal of opportunity
to consider and rule upon them); Commonwealth v. Howe, 842
A.2d 436, 441 (Pa. Super. 2004) (“Constitutional issues, including
sentencing issues based upon the constitution, are waived if they
are not properly raised in the trial court.”)....
Here, [the defendant] did not raise these claims before the trial
court, in a motion to bar application of SORNA, or in post-sentence
motions. Rather, [the defendant] raises these claims for the first
time on appeal. We, therefore, are constrained to find that [the
defendant] has waived these claims. Pa.R.A.P. 302(a). No relief
is due.
Id. at *4 (some citations omitted).
Instantly, we reiterate that it was in counsel’s supplemental Rule
1925(b) statement that counsel first raised a claim that “the trial court erred
when it found that SORNA [II] applied to him and that he must register for a
period of 15 years as required under SORNA [II].” Suppl. 1925(b) Statement.
Identical to the defendant in Reslink, Appellant did not raise his SORNA II
claim before the trial court and now raises it for the first time on appeal. See
Reslink, 2020 WL 7415959, at *4. We, therefore, agree with the trial court’s
determination of waiver, and “are constrained to find that [Appellant] has
waived” this claim under Rule 302(a). Id.; Trial Ct. Op. at 13-14.
In sum, based on our review of the record, we agree with trial counsel’s
assessment that the issues discussed in the Anders/Santiago brief are
frivolous. Moreover, our independent review of the record does not reveal
any additional, non-frivolous issues preserved in this appeal. See Goodwin,
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928 A.2d at 292. Accordingly, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 04/22/2021
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NICHOLAS BONAFIDE : 18 CR 1938
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This opinion is filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
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Procedure and pursuant to the request of the Superior Court. Appellant, Nicholas Bonafide
(herein after “Appellant”) appeals this Court’s July 9, 2019, J udgement of Sentence. The
Appellant’s issues on appeal are as follows, verbatim:
1. Whether this Court imposed a harsh, unre
asonable and excessive sentence on the
indecent assault charge?
2. Whether this Court imposed a harsh, unreasonable and excessive sentence on the
indirect criminal contempt charge filed to 19 MD 2887
3. Whether this Court imposed a harsh, unreasonable and excessive sentence on the
indirect criminal contempt charge filed to 18 MD 596?
4. Whether this court erred in determining that he was guilty of indirect criminal
contempt on the 19 MD 288 charge?
5. ‘Whether the trial court erred when it found that SORNA applied to him and that
he must register for a period of 15 years as required under SORNA?
For the following reasons, including a review of the record and the facts and history of the casc,
this Court’s July 9, 2019, Judgment of Sentence should be affirmed.
FACTUAL AND PROCEDURAL HISTORY
SE ERYVICEDURAL HISTORY
Under 18 CR 1938, the Commonwealth charged the Appellant with one (1) count of
Rape- Forcible Compulsion in violation of 18 Pa. C.S. § 3121(A)(1), one (1) count of Sexual
Assault in violation of 18 Pa. C.S. § 3124.1(b), one (1) count of Aggravated Indecent Assault
]
Without Consent in violation, of 18 Pa, C.S. § 3125(A)(1), and one count of Harassment by
Communication-Repeatedly in violation of 18 Pa. C.S. § 2709 (A)(7). These charges stemmed
from a September 10, 2018, incident wherein a female victim reported a sexual assault. Wolfe,
Affidavit of Probable Cause, September 11, 2018, at p. 1. After a recent break-up, the victim
described that the Appellant repetitively texted her and messaged her via sdcial media. She
described that the Appellant even utilized an anonymous cell phone number to encourage a
response. Ultimately, the Appeliant arrived at the victim’s residence. While inside the residence,
the Appellant attempted to pull down the victim’s pants. Id. The victim denied the Appellant’s
advances, however, the Appellant forced himself on top of her and raped the victim. Id. During
the rape, the victim attempted to push him away and directed the Appellant to stop. Id.
Subsequently, on September 18, 2018, the Honorable J udge. Trish Corbett granted a
temporary Protection from Abuse Order filed by the victim against the Appellant docketed to 18
FC 41351. Notwithstanding, approximately one week later, September 28, 2018, police were
dispatched to the victim’s residence. Wolfe, Affidavit of Probable Cause, October 1, 2018, at
p-1. The Appellant placed four (4) telephone calls to the victim from the Lackawanna County
Prison. With police present, the victim received a telephone call from the Appellant’s mother,
who telephoned at the Appellant’s direction to express his apologies. Accordingly, the
Commonwealth charged the Appellant with Contempt, 23 Pa. C.S: § 6114 (A) docketed under 18.
MD 596,
On April 16, 2019, the Appellant entered a guilty plea under 18 CR 1938 to one (1) count
of Indecent Assault in violation of 18 Pa. C.S. §3126(a)(1). Prior to entering the plea, the
Appellant executed a lengthy written plea colloquy form in which he indicated awareness of the
Maximum penalty as two (2) years confinement and a $5,000.00 fine, the elements of the crimes
charged, as well as his satisfaction with counsel, and the terms of the plea agreement. See
Written Plea Colloquy, at para. 5,8, 13, 15, 16. This Court also conducted an oral inquiry to
determine whether the Appellant entered a knowing, voluntary, and intelligent plea. See.N.T.
Guilty Plea, April 16, 2019, at p. 2-5.. The Appellant advised awareness of the constitutional
tights he forfeited, and the penalties he faced by entering the guilty plea. Id. The Appellant
further indicated that no threats or promises were exchanged for his plea. Id. at 4. The Appellant
admitted to penetrating the vagina of the victim without her consent for the purpose of sexual
arousal. Id. at 3-4. Likewise, the Appellant executed a four (4) page written SORNA Colloquy
notifying the Appellant of his sexual offender registration requirements, including a fifteen (15)
year registration period. See SORNA Colloquy. After receiving all affirmative responses from
the Appellant, this Court accepted the guilty plea, and deferred sentence pending the completion
of a Presentence Investigation Report (Hereinafter PSI”) and a Pennsylvania Sexual Offender |
Assessment. See N.T. Guilty Plea at 4-5.
Prior to imposition of sentence, on May 26, 2019, police were again dispatched to the
victim’s residence for a second violation of the Protection from Abuse order entered against the
Appellant. Morrison, Affidavit of Probable Cause, May 28, 2019 at p. 1. Specifically, a
former inmate housed with the Appellant, messaged the victim via social media at the direction of
the Appellant. Id. The former inmate requested that the victim dismiss the pending sexual assault
offenses. Id. Accordingly, the Commonwealth charged the Appellant with Contempt, 23 Pa.
C.S. § 6114 (A) docketed under 19 MD 288. The Honorable Chester Harhut conducted a
contempt hearing on June 19, 2019. During the hearing, Officer Michael Morrison testified that
he responded to allegations ofa Protection from Abuse violation. (Notes to Testimony, June 19,
2019 p. 4). Upon arrival, the victim provided Officer Morrison with her cell phone directing bim
to a Facebook message. Officer Morrison observed a message on the victim’s cell phone, which
stated: “Nicholas Bonafide told me to contact you as soon as I got out to ask you to drop
whatever charges he had that was going against him.” Id. at 4-5. Officer Morrison testified that
he confirmed an active Protection from Abuse order against the Appellant. Id. at 5. Kristy
_ Moore testified that she dated the Appellant, and after the Appellant sexually assaulted her, she
obtained a Protection from Abuse order against him. Id. at 7. Ms. Moore recalled that she
received a Facebook message, which stated that Nicholas Bonafide “asked me to text you to see if
you would drop the charges. He said he really didn’t do it.* Id. at 8,13. Finally, Dante Nestor
testified that while sharing a cell with the Appellant, the Appellant “asked him to text [Kristy] [.
.. ] and say that he was sorry and everything, and that he just wants to see his kids. He wants to
get out of that prison. He doesn’t want to be in there.” Id, at 16. Mr. Nestor testified that upon
release he texted Ms. Moore through Facebook. Id. He verified the messages he sent to Ms.
Moore through Facebook. Id. at 17. Mr. Nestor explained that he owed favors to the Appellant
and reiterated that the Appellant directed him to contact Ms. Moore. Jd. 17-18. Mr. Nestor
stated: “He.said, could you contact {K]risty and say that I am sorry for everything I did. Like, I
didn’t mean to do it or anything.” Id. at 19. Lastly, Mr. Nestor testified that he did not know
Ms. Moore personally, and but for the Appellant directing him to contact her, he would not have
sent her a Facebook message. Id. at 22. As such, finding the Facebook messages to be
conspicuous, the Honorable Chester Harhut found the Appellant guilty. Id. at 30. Counsel for
the Appellant request sentence be deferred and consolidate with the Appellant’s underlying
criminal offense.
Accordingly, on July 9, 2019, following a thorough review of a pre-sentence investigation
as well as consideration of a Pennsylvania Sexual Offender Assessment, relative to 18 CR 1938
this Court sentenced the Appeliant within the guideline range to twelve (12)- twenty-four (24)
months state incarceration. In addition, this Court sentenced the Appellant on 18 CR 596 Count
I: six (6) months incarceration and Count II: six (6) months incarceration concurrent to Count I,
consecutive to 18 CR 1938. Finally, this Court sentenced the Appellant on 19 MD 288 to six (6)
months incarceration consecutive to 18 CR 1938. Ultimately, the Appellant received an
aggregate sentence of eighteen (18) to twenty-four (24) months state incarceration. The
Appellant filed a Motion for Reconsideration of Sentence on July 11, 2019-requesting a reduced
sentence. This Court denied the Appellant’s request, and the Appeliant filed a Notice of Appeal -
to the Pennsylvania Superior Court.
DISCUSSION
1. Whether this Court imposed a harsh, unreasonable and excessive sentence on the
indecent assault charge?
2. Whether this Court imposed a harsh, unreasonable and excessive sentence on the
indirect criminal contempt charge filed to 19 MD 288?
3. Whether this Court imposed a harsh, unreasonable and excessive sentence on the
indirect criminal contempt charge filed to 18 MD 596?
Since the Appellant challenges the imposition of sentence as harsh, unreasonable, and
excessive, this Court has consolidated three issues for efficiency. Initially, this Court notes that
no automatic right of appeal exists for a challenge to the discretionary aspects of sentencing.
Rather, this type of appeal is more appropriately considered a petition for.allowance of appeal.
Commonwealth v. Rossetti, 863 A.2d 1185, 1193-1194 (Pa. Super. 2004) (citing
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.2001) (citations omitted)).
Before reaching the merits of a discretionary sentencing issue, an appellate court must determine
whether an appellant (i) filed a timely notice of appeal, (ii) properly preserved the issue to be
heard on appeal, (iii) filed a brief free of fatal defects, and (iv) raised a substantial question that
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the sentence appealed from is not appropriate under the Sentencing Code. Commonweaith v.
Mastromaring, 2 A.3d 581, 588 .(Pa. Super. 2010), cert. denied, 609 Pa. 685. An appellate
court evaluates whether a particular issue raises a substantial question on a case-by-case basis.
Commonwealth v. Rossetti, 863 A.2d 1185, 1194 (Pa. Super. 2004). A substantial question,
may be raised if the appellant “sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the Sentencing Code ora
particular fundamental norm underlying the sentencing process.” Commonwealth y, Mouzon,
$12 A.2d 617, 627-28 (Pa. 2002).
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 ata
manifestly unreasonable decision. Commonwealth v. Shu ars, 895 A.2d 1270, 1275 (Pa.
Super. 2006). “An abuse of discretion may not be found merely because an appellate court might
have reached a different conclusion, but requires.a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.”_ Grady
vy. Frito-Lay, Ine., 839 A.2d 1038, 1046 (2003). In reviewing a sentence on appeal, the appellate
court shall vacate the sentence and remarid the case to the sentencing court with instructions if it
finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but
applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case
involves circumstances where the application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable,
In all other cases{,] the appellate court shall affirm the sentence imposed by the sentencing
court, 42 Pa.C.S. § 9781; Commonweaith v. Lewis, 45 A.3d 405, 411 (Pa. Super 2012).
The rationale offered by the Pennsylvania Supreme Court for this deferential standard is
as follows:
Sunply: stated, the sentencing court sentences flesh-and-blood Appellants and the
nuances of sentencing decisions are difficult to gauge from the cold transcript used.
upon appellate review. Moreover, the sentencing court enjoys an institutional
advantage to appellate review, bringing to its decisions an expertise, experience,
and judgment that should not be lightly disturbed. Even with the advent of the
sentencing guidelines, the power of-sentencing is a function to be performed by the
sentencing court. Thus, rather than cabin the exercise of a sentencing court’s
discretion, the guidelines merely inform the sentencing decision.
Commonwealth v.Walls, 926 A.2d 957, 961. (Pa. 2007). Furthermore, a sentence of
confinement must be “consistent with the protection of the public, the gravity of the offense as it
related to the impact on the life of the victims and on the community, and the rehabilitative needs
of the defendant.” 42 Pa. C.S.A. § 9721(b). A sentencing court may determine a defendant’s
potential for rehabilitation by considering his demeanor, apparent remorse, manifestation of social}
conscience, and cooperation with law enforcement agents. Commonwealth v. Begley, 780 A.2d
605, 644 (Pa. 2001): Commonwealth v. Constantine, 478 A.2d 39 (Pa. Super. 1984);
’ Commonwealth v. Gallagher, 442 A.2d 820 (Pa. Super. 1982).
The sentencing court must consider the particular circumstances of the offense and the
character of the appellant. Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002),
appeal denied 868 A.2d 1198 (Pa. 2005). To that end, if a pre-sentence investigation exisis, the
appellate court shal! presume that the sentencing coust “was aware of relevant information
conceming the appellant’s character and weighed those considerations along with mitigating
' Statutory factors, A pre-sentence report constitutes the record and speaks for itself.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). The Devers Court further articulated
that “it would be foolish, indeed, to take the Position that if a court is in possession of the facts, it
will fail to apply them to the case at hand.” Id. See Commonwealth y. Boyer, 856 A.2d 149 (Pa.
Super. 2004); Commonwealth v. Burns, 765 A.2d 1144 (Pa. Super. 2000),
Moreover, the sentencing court is permitted to use prior conviction history and
other facts already included in the guidelines, if they supplement other extraneous
sentencing information. Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super.
2003); Commonwealth v. Mills, 496 A.2d 752, 754 (Pa. Super 1985)(holding that the
Court was permitted to consider seven prior convictions for burglary in conjunction with,
prior unsuccessful attempts to rehabilitate, fact appellant had committed offense while on
parole, general threat to public, and appellant's disregard for private property). The
Pennsylvania Supreme Court noted that the guidelines only inchide a prior conviction,
score and do not take into account whether an Offense is committed while the offender
was on probation, parole or some other form or type of supervised release or his conduct
while incarcerated on the current crimes. See Commonwealth vy. Harmon, 546 A.2d
726, 732 (Pa. Cmwith, 1988), appeal denied, Commonwealth y. Harmon, 523 Pa. 643,
365 A.2d 1168 (Pa. 1989) (trial court appropriately utilized the appellant’s arrest while
on work release as an aggravating factor); Commonwealth y. Penrod, 578 A.2d 486,
491 (Pa. Super 1990).
It is also important to note that the decision to impose concurrent or consecutive
sentences rests within the discretion of the sentencing court. Commonwealth y. Johnson,
961 A.2d 877, 880 (Pa. Super. 2008) (citing Commonwealth y. Lloyd, 878 A.2d 867,
. 873 (Pa. Super. 2005)). See also, Commonwealth v, Hoag, 665 A.2d 1212 (Pa. Super.
1995)(stating an appellant is not entitled to a “volume discount” for his crimes by having
- all sentences run concurrently).
Here, this Court imposed a guideline range sentence, which is considered
appropriate under the Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162,
171 (Pa. 2010); Commonwealth ve Bromley, 862 A.2d 598, 605 (Pa. Super.
2004)(holding that the defendant did not raise substantial questions by merely asserting
sentence was excessive when he failed to reference any section of Sentencing Code
potentially violated by sentence). The Appellant had an offense gravity score of four (4)
and a prior record score of three (3). Under the sentencing guidelines for such scores, the
standard range of minimum sentence is three (3) — twelve (12) months. This Court
sentenced the Appellant to twelve (12) -twenty-four (24) months on 18 CR 1938.
Moreover, this Court did not exceed the statutory maximum of six (6) months
incarceration on each contempt charge. See 23 Pa. C.S. § 6114(b)(1)((a). Prior to
imposition of sentence, this Court bad the benefit of a pre-sentence investigation report
from the Lackawanna County Adult Probation Department, as well as the Pennsylvania
Sexual Offender’s. Assessment. This Court reviewed both reports:in their entirety.
Therefore, this Court held awareness of the Appellant’s relevant personal background,
including his mental health and addiction history. Additionally, this Court considered the
|| circumstances of the underlying offense, including the repetitive nature and the
Appellant’s active state parole status, which demonstrated the Appellant’s inability to
rehabilitate. This Court observed a pattem of overall irresponsibility when the Appellant
was previously granted supervision and treatment opportunities. The Appellant’s
demeanor demonstrated a criminal mindset unaffected by his previous incarceration and
rehabilitation opportunities. The Appellant violated the conditions of a Protection from
Abuse order on three (3) occasions, despite being incarcerated. This Court commented
on the Appeliant’s extensive criminal history and prior leniency, stating:
Mr. Bonafide, it’s not your first time in my courtroom. In the past J have
given you—-several times I’ve given you a break. One involving a sexual
offense with a minor, which I kept you county on that one. And after that
you had three violations. And since then, you’ve had at least a half of
dozen crimes, including assault and now indecent.assault [...] At this
point, while I usually promote rehabilitation as a first option, in your case,
it clearly has not worked. The past periods of supervision have not worked
for both county and state. And the continued behavior, especially in regard
to the indirect criminals, to me, show a clear disregard for not only the law
but also other people.
(Notes to Testimony July 9, 2019 p- 6, 8).
There is no indication in the record that this Court failed. to consider the aforesaid personal
circumstances, or ignored mandatory factors under 42 Pa. C.S. § 9721(b), or in any other way
imposed a harsh and excessive sentence, disproportionate to the. Appellant’s actions. The
Appellant’s claim is without merit.
4. Whether this court erred in determining that he was guilty of indirect criminal
contempt on the 19 MD 288 charge?
A charge of indirect criminal contempt involves a.claim that a violation of an order
occurred outside the presence of the court. Commonwealth v. Padilla, 885 A.2d 994,
996 (Pa. Super 2005){holding that “wiiere a PFA order is involved,
an indirect criminal ‘contempt charge is designed to seek punishment for violation of the
protective order.”}. To establish indirect criminal contempt, the Commonwealth must
prove: 1) the Order was adequately definite, clear, and precise to the contemnor as to
leave no doubt of the conduct forbidden; 2) the contemnor had notice of the Order; (3) the
act instituting the violation must have been by choice by the contemnor; and 4) the
10
ae
contemnor must have acted with wrongful intent. Commonwealth v. Ashton, 824 A.2d
1198, 1202 (Pa. Super 2003).
In the present matter, a Protection from Abuse Order dated October 24, 2018
prohibited contact with the victim or her children in any matter, including via a third
person. See Paragraph 1,4 p. 2. Officer Michael Morrison testified that he responded to
allegations of a Protection from Abuse violation. (Notes to Testimony, June 19, 2019-p.
_ 4). Upon arrival, the victim previded Officer Morrison with her cell phone directing him
to a Facebook message. Officer Morrison observed a message on the victim’s cell phone,
which stated: “Nicholas Bonafide told me to contact you as soon as I got out to ask you to
drop whatever charges he had that was going against him.” Id. at 4-5. Officer Morrison
testified that he confirmed an active Protection from Abuse order against the Appellant.
Id. at 5. Kristy Moore testified that she dated the Appellant, and after the Appellant
sexually assaulted her, she obtained a Protection from Abuse order against him. Id. at 7.
Ms. Moore recalled that she received a Facebook message, which stated that Nicholas
Bonafide “asked me to text you to see if you would drop the charges. He said he really
didn’t do it.” Id, at 8, 13. Finally, Dante Nestor testified that while sharing a cell with
the Appellant, the Appellant “asked him to text [Kristy] [... ] and say that he was sorry
and everything, and that he just wanis to see his kids. He wants to get out of that prison.
He doesn’t want to be in there.” Id. at 16. Mr. Nestor testified that upon release he texted
Ms. Moore through Facebook, ‘Id. He verified the messages he sent to Ms. Moore
through Facebook. Id. at 17. Mr. Nestor explained that he owed favors to the Appellant
and reiterated that the Appellant directed him to.contact Ms. Moore. Id. 17-18. Mr.
Nestor stated: “He said, could you contact {K]risty and say that I am sorry for everything I
ll
did. Like, I didn’t mean to do it or anything.” Fd. at 19. Lastly, Mr. Nestor testified that
he did not know Ms. Moore personally, and but for the Appellant directing him tc contact
her, he would not have sent her a F acebook message: Id. at 22. It is clear that the
Appellant directed his cellmate, Mr. Nestor to contact the victim via social media
entreating her to dismiss the pending criminal charges. The:Appellant held awareness of
the language of the Protection from Abuse. Order as he executed the last page in
concurrence with the requirements of the order. Therefore, this Court did not err when it
found Appellant guilty. of indirect criminal contempt under 2019 MD 288. Nonetheless,
the Appeilant’s issue is waived as he did not preserve this claim as required by Pa. R.
‘Crim. P. 670(A). The Appellant’s Motion for Reconsideration only requested a reduction
in sentence seeking a concurrent sentence on 19 MD 288. Therefore, the Appeliant’s
issue is waived. See Commonwealth v. Walsh, 36 A.3d 613, 622
(Pa.Super.2012) (finding waiver under Pa. R. Crim. P. 607(A) where appellant's motion for
new trial following conviction of indirect criminal contempt did not include weight claim).
5.. Whether the trial court erred when it found that SORNA applied to Appellant
aud that he must register for a period of 15 years as required under SORNA?
SORNA's registration provisions are applicable to, inter alia, the following individuals:
(1) those convicted of a sexually violent offense, on or after the effective date of SORNA, who
are residents of Pennsy}vania, employed in Pennsylvania, students in Pennsylvania or transients;
(2) these who are inmates, on or after the effective date of SORNA, in state or county prisons as a
result of a conviction for a sexually violent offense; (3) those who, on.or after the effective date
of SORNA, are inmates in a federal prison or are supervised by federal probation authorities as a
result of a sexually violent offense and have a residence in Pennsylvania, are employed in
Pennsylvania, are.students in Pennsylvania or transients; and, pertinent to this appeal, (4) thase
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who were required to register under previous versions of Megan's Law and had not yet fulfilled
their registration period a3 of the effective date of SORNA. 42 Pa.C.S. § 9799.13.
SORNA classifies offenders end their offenses into three tiers. 42 Pa.C.S. § 9799.14. Those
convicted of Tier I offenses are subject to registration for a period of fifteen years and are
required to verify their registration information and be photographed, in person at an approved
registration site, annually, 42 Pa.C.§. § 9799.i5(a)(2),(e)(1).
In the present case, the Appellant is classified as a Tier I offender related to his underlying
conviction for violating 18 Pa. es. § 3126(A)(1). As such, the Appellant is subject to a fifteen
year registration period. 42 PaCS. § 9799.15(a}{1)., This Court properly sentenced the
Appellant in accordance with the applicable SORNA.tier-based registration period, and there is
no merit to the Appellant's last claim. See Commonwealth v. Golson, 189 A.3d 994, 1003
(Pa.Super. 2918) (directing “trial courts to apply only the applicable tier-based registration
period, ; as ‘those periods apply based on the convicti on itself, and not due to any additional fact not
found, ‘under SORN. A's s procedures, by the fagtfinde) Commonwealth y. Prieto, 206 A.3d
529, 535° (Fe. Super. 2679); Commonwealth. Martiz; 205 A.3d 1247, 1252(Pa. Super. 2019)
(holding that a conviction ‘of asexual offense determines the applicabte registration period). This
Court advised the Appellant that his conviction triggered a Tier f offense under SORNA and
‘provided'the Appellant with a-detailed description of his SORNA reporting requirements. In re
ELR,, 227 A.3d 316, 330 (Pa. 2020).
Nétwithstanding, the Appellant's last issue is waived. The Appellant’s Motion for
Reconsideration did not challeage his SORNA \ registration requirement or SORNA applicability.
See PaRAL. 302( a) ( “Issues not raised in the lower court are waived and cannot be raised for
the first time on 1 appeal ”)-
3
CONECLUSION
- For the foregoing reasons, this Court’s July 9, 2019, Judgment of Sentence, as weil as the
mandatory SORNA registration requirement, should be affirmed.
PJ.
Michael J. Barrasse
CC: Notice of the entry of the foregoing Opinion has been provided to each party pursuant to
Pennsylvania Rule of Criminal Procedure 114 by mailing time-stamped copies to the following
individuals: .
“s
Lisa A. Swift, Esq. |
Donna DeVita, Esq.
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