Com. v. Townsend, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOSEPH TOWNSEND :
:
Appellant : No. 3238 EDA 2017
Appeal from the Judgment of Sentence August 18, 2017
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0005257-2015
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED OCTOBER 17, 2018
Appellant, Joseph Townsend, appeals from the judgment of sentence
imposed following his bench trial conviction of rape of a child. Specifically, he
challenges the denial of a motion for suppression. He also claims his sentence
was harsh and excessive. We discern no basis to disturb the discretion of the
sentencing court. Accordingly, we affirm.
We derive the facts of the case from the trial court’s opinion, its Findings
of Fact and Conclusions of Law re: Defendant’s Motion to Suppress, and our
independent review of the record. (See Trial Court Opinion, 11/29/17;
Findings of Fact and Conclusions of Law, 11/08/16). The facts are not in
dispute. (See N.T. Sentencing, 8/18/17, at 18).
In May of 2013, the Philadelphia Office of Homeland Security
Investigations received a report from the National Center for Missing Children
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* Retired Senior Judge assigned to the Superior Court.
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that an America Online user had uploaded apparent images of child
pornography. The investigation eventually led to Appellant. Homeland
Security executed a search warrant at Appellant’s residence, resulting in the
seizure of electronic equipment, which contained thousands of images and
hundreds of videos of child pornography. Some of the videos showed
Appellant engaging in sex acts with his minor half-sister.1 Appellant does not
dispute that he began sexually assaulting his sister when she was about three.
These assaults eventually involved sexual intercourse. The whole course of
events continued for about ten years. Appellant videotaped many of these
episodes.
Homeland Security initiated charges against Appellant in federal court,
for child pornography. Appellant filed a motion to suppress, which, notably
for this appeal, the district court denied. The denial of the motion to suppress
was affirmed on appeal to the Third Circuit. (See United Sates of America
v. Joseph Townsend, No. 14-4667 (Third Circuit Opinion filed May 16,
2016).2 Appellant received a federal sentence of 262 months (twenty-one
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1 Appellant was born in 1987. His half-sister was born in 2000. The sexual
activities began when the half-sister was three. Appellant was convicted of
rape of a child under the age of thirteen. Appellant claimed he did not have
intercourse with her until she was thirteen. He does not raise this issue on
appeal.
2Accordingly, Appellant’s conviction of the child pornography-related charges
was affirmed, but the case was remanded to allow the district court to correct
a miscalculation of the sentence.
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years and ten months) of incarceration in federal prison, followed by fifteen
years of supervised probation.
In the instant action, Appellant was charged in state court with rape of
a child (under thirteen) and related offenses. He filed a similar motion to
suppress in the Court of Common Pleas of Montgomery County. The parties
agreed to use the notes of testimony from the federal hearing on the motion
to suppress in lieu of a full second hearing in state court. The trial court denied
the motion. After a stipulated bench trial, the court found Appellant guilty of
one count of rape of a child. The Commonwealth nolle prossed the numerous
remaining charges.
The trial court, noting that it had the benefit of a presentence
investigation report, sentenced Appellant to a term of not less than twenty
nor more than forty years of incarceration in a state correctional facility,
followed by fifteen years of probation, to be served consecutively to the federal
sentence. The court denied Appellant’s motion for reconsideration of
sentence. This timely appeal followed.3
Appellant presents two questions on appeal, albeit framed as narrative
statements. See Pa.R.A.P. 2116. We reproduce both questions verbatim.
1. The trial court erred in denying Appellant’s suppression
motion as argued before the trial court on November 4, 2016,
asserting, inter alia, that the search of Appellant’s home
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3Appellant filed a court-ordered statement of errors complained of on appeal
on October 24, 2017. As previously noted, the trial court filed its opinion on
November 29, 2017. See Pa.R.A.P. 1925.
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conducted by the Department of Homeland Security failed to
minimize unwarranted intrusions upon the defendant’s privacy.
Appellant also incorporates the issues and arguments raised
during the hearing in the United States District Court for the
Eastern District of Pennsylvania which this Court considered in the
findings of fact and conclusion of law issued on November 8, 2016.
2. Appellant challenges the discretionary aspects of
sentencing.
(Appellant’s Brief, at 7).
Preliminarily, we note that in his first claim Appellant purports to
incorporate by reference the issues and arguments he raised in federal court.
This is a deficient procedure not compliant with our appellate rules. See
Commonwealth v. Rodgers, 605 A.2d 1228 (Pa. Super. 1992), appeal
denied, 615 A.2d 1311 (Pa. 1992):
We find these averments wholly inadequate to facilitate
substantive review of the issue because an appellate brief is
simply not an appropriate vehicle for the incorporation by
reference of matter appearing in previously filed legal documents.
See Commonwealth v. Osteen, 381 Pa. Super. 120, 124, 552
A.2d 1124, 1126 (1989). The argument portion of an appellate
brief must include a pertinent discussion of the particular point
raised along with citation to pertinent authorities. Pa.R.A.P., Rule
2119(a), 42 Pa.C.S.A. As appellant’s contentions have not been
appropriately developed, we deem the argument waived under
Commonwealth v. Nelson, [567 A.2d 673, 676 (Pa. Super.
1989), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1990)].
Rodgers, supra at 1239.
Accordingly, here, any issues Appellant attempted to incorporate by
reference are waived. We will review only the issues Appellant actually raises
in this appeal.
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Next, we note that in his first claim Appellant complains that the
Homeland Security agents who executed the search warrant “failed to
minimize unwarranted intrusions” into his privacy. (Appellant’s Brief, at 7).
Notably, he concedes that the search warrant was valid. (See id. at 15). It
also bears noting that Appellant fails to identify any specific invasion of his
privacy (other than the discovery of more child pornography). Instead, he
asserts that the execution of the search was overbroad, which he repeatedly
characterizes as “rummaging.” (Appellant’s Brief, passim). We disagree.
On independent review, we conclude that Appellant’s brief fails to
develop a claim of identifiable trial court error, much less support it with
citation to pertinent authority. We agree with the Commonwealth that
“[Appellant’s] suppression argument is less than a model of clarity. It is
convoluted, rambling, and fraught with irrelevant and redundant analysis.”
(Commonwealth’s Brief, at 6).
To cite only one example, Appellant’s brief purports to review the
American colonists’ objection to general writs of assistance. (See Appellant’s
Brief, at 24). Within the span of two or three sentences the brief jumps from
James Otis to the writings of John Adams to the debates of Patrick Henry to
the bald assertion that here the search of a thumb drive was a “fishing
expedition.” (Id.).
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A review of the historical antecedents in the Common Law leading up to
ratification of the Fourth Amendment may be of general historical interest.4
However, undeveloped passing references to James Otis, John Adams and
Patrick Henry fail to identify trial court error here, or establish the basis for
appellate relief in this case. Appellant fails to develop an argument in support
of the claim raised. See Pa.R.A.P. 2119(a), (b), and (c). Accordingly,
Appellant’s claim is waived.
Moreover, Appellant’s sole discernible claim would not merit relief. His
repeated reliance on citation to United States v. Stabile, 633 F.3d 219, 239
(3d Cir. 2011), cert. denied, 565 U.S. 942 (2011), is misplaced.5 Appellant
maintains, in effect, that a constitutional computer search must be limited to
the specific items expressly identified in the warrant. (See Appellant’s Brief,
at 21-24).
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4For a succinct summary of these concepts, see Warden, Md. Penitentiary
v. Hayden, 387 U.S. 294, 325 (1967) (Douglas, dissenting); see also
Buonocore v. Harris, 65 F.3d 347, 353 (4th Cir. 1995).
5 See Eckman v. Erie Ins. Exch., 21 A.3d 1203 (Pa. Super. 2011):
At the outset we observe that it is well-settled that this
Court is not bound by the decisions of federal courts, other than
the United States Supreme Court, or the decisions of other states’
courts. We recognize that we are not bound by these cases;
however, we may use them for guidance to the degree we find
them useful and not incompatible with Pennsylvania law.
Id. at 1207 (citations omitted).
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In fact, Stabile concludes the virtual opposite of Appellant’s assertions.
See Stabile, supra at 239). Citing numerous cases, in particular, United
States v. Burgess, 576 F.3d 1078, 1092 (10th Cir. 2009), cert. denied, 558
U.S. 1097 (2009), Stabile concluded, “[T]here may be no practical substitute
for actually looking in many (perhaps all) folders and sometimes at the
documents contained within those folders, and that is true whether the search
is of computer files or physical files.” See Stabile, supra at 237 (additional
citations omitted).
While [o]fficers must be clear as to what it is they are
seeking on the computer and conduct the search in a way that
avoids searching files of types not identified in the warrant, a
computer search may be as extensive as reasonably
required to locate the items described in the warrant based
on probable cause.
Burgess, supra at 1092 (emphasis added) (citations and internal quotation
marks omitted). Appellant’s first claim is waived, and would not merit relief.
In Appellant’s second claim, he challenges his sentence as excessive,
harsh, and not in conformity with the Sentencing Code. (See Appellant’s
Brief, at 7, 29). He claims the sentencing court imposed a manifestly
unreasonable sentence without considering mitigating circumstances and
rehabilitation factors. (See id. at 33-42). Appellant notes that he has a prior
record score of zero, that he is remorseful, and willing to get professional help.
Appellant adds a narrative of a troubled childhood, including gender identity
and sexual orientation issues, taunting by school classmates, and a ridiculing
father, all aggravated by family disputes, and ultimately, divorce.
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It is well-settled that a challenge to the discretionary aspects of a
sentence is a petition for permission to appeal, as the right to pursue such a
claim is not absolute. See Commonwealth v. Treadway, 104 A.3d 597,
599 (Pa. Super. 2014). Before this Court may review the merits of a challenge
to the discretionary aspects of a sentence, we must engage in the following
analysis:
[W]e conduct a four part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted).
We note that here Appellant has met the first three parts of the four-
prong test. Appellant filed a timely appeal. Appellant preserved the issue in
a post-sentence motion. (See Motion to Reconsider Sentence, 8/28/17).
Appellant included a statement pursuant to Pa.R.A.P. 2119(f) in his brief.
(See Appellant’s Brief, at 30-32). Thus, we next assess whether Appellant
has raised a substantial question with respect to the issue he presents.
Whether a particular issue constitutes a substantial question about the
appropriateness of a sentence is a question to be evaluated on a case-by-case
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basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001), appeal denied, 796 A.2d 979 (Pa. 2002).
As to what constitutes a substantial question, this Court does not accept
bald assertions of sentencing errors. See Commonwealth v. Malovich, 903
A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons
the sentencing court’s actions violated the Sentencing Code. See id. “A
substantial question will be found where the defendant advances a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citations omitted).
“Where pre-sentence reports exist, we shall . . . presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors. A pre-sentence report constitutes the record and speaks for itself.”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014) (quoting Commonwealth v. Devers, 519
Pa. 88, 546 A.2d 12, 18 (1988)).
Here, Appellant claims that the trial court applied the Sentencing
Guidelines erroneously. (See Appellant’s Brief, at 31).
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“A claim that the sentencing court misapplied the Sentencing Guidelines
presents a substantial question.” Commonwealth v. Cook, 941 A.2d 7, 11
(Pa. Super. 2007) (citation omitted). Therefore, we will grant Appellant’s
petition for allowance of appeal and address the merits of his claim.
Our standard of review in appeals of sentencing is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008) (citation
omitted).
A sentencing judge has broad discretion in determining a reasonable
penalty, and appellate courts afford the sentencing court great deference, as
it is the sentencing court that is in the best position to view the defendant’s
character, displays of remorse, defiance, or indifference, and the overall effect
and nature of the crime. See Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007).
When imposing a sentence, the sentencing court must consider “the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S.A. § 9721(b). This Court has stated, “[A] court
is required to consider the particular circumstances of the offense and the
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character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545
U.S. 1148 (2005) (citation omitted). In particular, the sentencing court should
refer to the defendant’s prior criminal record, his age, personal characteristics,
and his potential for rehabilitation. See id.
Here, Appellant contends that the sentencing court erred because his
prior record score is zero and he was remorseful. (See Appellant’s Brief, at
33). Appellant argues that, combining the aggregate term of incarceration
imposed by the sentencing court and the sentence from the federal court, he
will be required to serve fifty-six years before he is eligible for parole, by
which, if he survives, he will be over eighty. (See id.). He observes that by
agreeing to a stipulated bench trial he spared the victim, his half-sister, the
trauma of testifying in court. (See id. at 38).
We note at the outset of our analysis that Appellant fails to establish a
proper basis for challenging his state sentence based on the federal sentence.6
Additionally, it bears noting that Appellant was convicted of separate offenses
in the two separate actions. In any event, Appellant is not entitled to a
“volume discount” for his multiple offenses. See Commonwealth v. Prisk,
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6 Compare United States v. Napolitan, 830 F.3d 161, 166 (3d Cir. 2016)
(holding appellant may not collaterally attack state court sentence as part of
a federal sentencing challenge unless (1) he claims a Gideon [v.
Wainwright, 372 U.S. 335 (1963)] violation, or (2) relevant federal statute
or sentencing guideline expressly authorizes collateral attack).
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13 A.3d 526, 533 (Pa. Super. 2011) (affirming, on differing facts, aggregate
sentence of not less than six hundred thirty-three (633) to not more than one
thousand five hundred (1500) years’ imprisonment for systematic sexual
abuse of stepdaughter over six years); see also Commonwealth v. Hoag,
665 A.2d 1212, 1214 (Pa. Super. 1995) (appellant not entitled to a “volume
discount”).
In this case, after the sentencing court reviewed the presentence report
and the sentencing guideline ranges, it thoroughly addressed its reasons for
imposing a sentence at the top of the standard range. The court noted that
“This is one of the most egregious set of circumstances I have ever had to
deal with.” (N.T. Sentencing, 8/18/17, at 17). The sentencing court
specifically noted Appellant’s inability to keep his impulses in check, and the
consequent undue risk of reoffending. (See id. at 18). The court also
expressed its concern that a lesser sentence would depreciate the seriousness
of Appellant’s crime. (See id. at 19).
On independent review of the record, we conclude that the sentencing
court properly considered the relevant statutory criteria, and presented
adequate reasons for imposing the instant sentence on Appellant. We discern
no proper basis for disturbing the discretion of the sentencing court.
Hence, we conclude this claim lacks merit. Based on the foregoing, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/18
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