Com. v. Todoroff, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID TODOROFF
Appellant No. 847 MDA 2017
Appeal from the Judgment of Sentence imposed March 28, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0001600-2016
BEFORE: PANELLA, STABILE, and PLATT, JJ.*
MEMORANDUM BY STABILE, J.: FILED MARCH 27, 2018
Appellant, David Todoroff, appeals from the judgment of sentence
imposed on March 28, 2017 in the Court of Common Pleas of Dauphin County,
following his conviction of eight counts of invasion of privacy, 18 Pa.C.S.A.
§ 7507.1(a)(1). Appellant contends the trial court imposed an excessive
sentence. We disagree and, therefore, affirm.
In its rule 1925(a) opinion, the trial court explained:
On December 22, 2016, [Appellant] entered into an open
plea agreement to 8 counts of invasion of privacy[.] The charges
arose out of [Appellant] having secretly placed a cell phone in the
employee restroom of his podiatric office and in his home to
photograph and film women while they were fully or partially
nude. [Appellant’s] conduct was discovered when an office
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* Retired Senior Judge assigned to the Superior Court.
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employee noticed a cell phone on the floor of the restroom. Over
the course of approximately 7 years, [Appellant] had obtained
photographs of female office staff, a family friend and her minor
daughters, as well as his own daughter, as they changed clothes
or utilized the restroom. [Appellant] uploaded and stored many
images on his computer.
On March 28, 2017, the court imposed 8 consecutive
sentences of 8-24 months, that is, an aggregate sentence of not
less than 64 months nor more than 192 months in a state
correctional institution. The court further ordered that [Appellant]
is to have no contact with the victims, that he abide by the court
approved special conditions for sexual offenders, register under
the Pennsylvania Megan’s Law and abide by the sexual offender
registration procedures. The court sentenced [Appellant] within
the statutory maximum term of punishment, outside of the
aggravated range.
Trial Court Opinion, 8/10/17, at 1-2 (footnotes and some capitalization
omitted).
Appellant filed a motion seeking modification of his sentence. The trial
court denied the motion on April 28, 2017. This timely appeal followed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant asks us to consider one issue on appeal:
Was the imposition of an aggregate sentence of 64 to 192
months[’] incarceration clearly unreasonable, so manifestly
excessive as to constitute an abuse of discretion, and inconsistent
with the protection of the public, the gravity of the offenses, and
Appellant’s rehabilitative needs where the [c]ourt imposed
consecutive jail sentences on eight counts?
Appellant’s Brief at 6. As such, Appellant presents a challenge to the
discretionary aspects of sentence.
“A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
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167 A.3d 793, 815 (Pa. Super. 2017) (citation omitted). Before we can reach
the merits of a discretionary aspects challenge,
[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).
Id. at 815-16 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006) (citations omitted)). Here, Appellant filed a timely notice of
appeal, preserved the issue in a motion to modify the sentence, and included
a statement in compliance with Pa.R.A.P. 2119(f). Therefore, we must
determine whether Appellant has presented a substantial question that his
sentence is not appropriate under the Sentencing Code. “The determination
of what constitutes a substantial question must be evaluated on a case-by-
case basis.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015) (en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.
Super. 2011)).
In Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002), our Supreme
Court explained that our Court need not accept bald allegations of
excessiveness as sufficient to present a substantial question. Id. at 627.
Rather, only where the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in
the Sentencing Code or a particular fundamental norm underlying
the sentencing process, will such a statement be deemed
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adequate to raise a substantial question so as to permit a grant of
allowance of appeal of the discretionary aspects of the sentence.
See [Commonwealth v. Koehler, 737 A.2d 225, 244 (Pa.
1999)] (party must articulate why sentence raises doubts that
sentence was improper under the Sentencing Code);
[Commonwealth v. Saranchak, 675 A.2d 268, 277 n. 18 (Pa.
1996)] (“Appellant must, at a minimum, explain specifically why
he thinks his sentences were improper”); [Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000)] (appellant need
only make a plausible argument that a sentence is contrary to the
Sentencing Code or the fundamental norms underlying the
sentencing process).
Id. at 627-28 (emphasis in original).
In his Rule 2119(f) statement, Appellant contends his aggregate
sentence of 64 to 192 months is “manifestly excessive” even though it was
within the sentencing guidelines. Appellant’s Brief at 14. He argues the trial
court improperly “focused solely on the nature of the criminal conduct and the
need to protect others” and that, “[g]iven Appellant’s history and background,
the application of the guidelines would be clearly unreasonable.” Appellant’s
Brief at 17, 16. He also asserts the trial court failed to consider mitigating
factors, including Appellant’s lack of criminal record, acceptance of
responsibility for his actions, and undertaking of treatment. Id. at 17.1
“[A] defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if . . . application of the
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1This Court has held that “[a]n allegation that the sentencing court failed to
consider certain mitigating factors generally does not necessarily raise a
substantial question.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010) (citation omitted).
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guidelines would be clearly unreasonable, resulting in an excessive
sentence[.]” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013) (emphasis in original). Recognizing that Appellant need only make a
plausible argument that the sentence is contrary to the Sentencing Code or
the fundamental norms underlying the sentencing process, see Goggins, 748
A.2d at 727, we find Appellant has raised a substantial question. Therefore,
we shall consider the merits of his claim.
“In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court’s decision under an abuse of discretion standard.”
Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011) (citation
omitted). Further, “this Court’s review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and
(d).” Commonwealth v. Macias, 968 A.2d 773, 776-77 (Pa. Super. 2009).
Section 9871(c) directs:
The appellate court shall vacate the sentence and remand 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.
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In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9871(c).
In the case before us, there is no suggestion the sentencing court
erroneously applied the guidelines or imposed an unreasonable sentence
outside the sentencing guidelines. Therefore, Appellant must demonstrate
that the trial court abused its discretion by imposing a sentence within the
guidelines, but that the application of the guidelines is rendered clearly
unreasonable by the circumstances of the case. 42 Pa.C.S.A. § 9871(c)(2).
In its Rule 1925(a) opinion, the trial court explained:
[T]he record reflects that this court properly considered relevant
sentencing factors and stated at length, on the record, its reasons
for the sentence. We considered information contained in the pre-
sentence investigation report, letters and in-court statements of
the victims, and the statements of [Appellant]. As to the gravity
of the offense in relation to its impact on the victims, we found
compelling the victims’ statements of the emotional devastation
[Appellant’s] actions caused. We noted that the words “invasion
of privacy” alone inadequately reflect the harm [Appellant]
caused, which the victims will endure for years, if not a lifetime.
[Appellant’s] betrayal of the trust of devoted employees, family
friends and his daughter left those victims with profound
humiliation, embarrassment and sense of violation. Several
victims expressed fear of trusting others or using restrooms
outside their homes.
This court found particularly troubling that [Appellant] engaged in
such conduct for many years while at the same time engendering
trusted relations.
We recognize that [Appellant] voluntarily began counseling prior
to sentencing and that he expresses remorse. However, a lesser
sentence would nominalize [Appellant’s] egregious conduct and
the damage it inflicted upon the victims.
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Trial Court Opinion, 8/10/17, at 4-5 (some capitalization and references to
notes of testimony omitted).
When reviewing the record, we are required to have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A § 9781(d).
Our review of the record provides sufficient information for us to
understand the nature of the circumstances surrounding Appellant’s offenses
as well as Appellant’s history and characteristics. Here, we have a doctor of
podiatry with no criminal record, a married father of two daughters who are
now in their 20s.2 While he was in his late 40s and early-to-mid 50s, he used
a cell phone to photograph and video female employees while they were using
an office bathroom and did so as well with a family friend and her daughters—
and his own daughter—in a bathroom at his residence while they were
changing clothes before and after using a hot tub. He uploaded several of the
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2As of the time of sentencing, he was estranged from “his entire family.
Soon—the divorce is soon to be final.” Notes of Testimony (“N.T.”),
Sentencing, 3/28/17, at 12.
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images to his computer, including one of his daughter that was date-stamped
2008.
Following his arrest, he voluntarily surrendered his medical license and
sold his share of the podiatric practice. On recommendation of counsel, he
completed a ten-week inpatient program at a facility in Texas. Upon
completion of that program, he returned to Pennsylvania in January 2016 and
enrolled in a sexual addiction counseling program for one-on-one and group
sessions. He also enrolled in another sex addiction treatment program that
entailed sessions with a psychologist. Finally, he began attending weekly
spiritual counseling at a community church. Meanwhile, he secured two jobs,
one working for a contractor and the other as a night manager for a grocery
store. In the words of his counsel, “[H]e has owned his problem. He has
taken it very seriously.” N.T., Sentencing, 3/28/17, at 15. “He accepts full
responsibility for his actions.” Id. “He is devastated by losing his family, his
daughters, and his practice. And he understands that he violated the privacy
of people very close to him.” Id.
Appellant gave a statement to the trial court, in which he admitted he
“made some very poor choices.” Id. at 16. He acknowledged his behavior
was “wrong” and that he “was wrong not to seek professional help.” Id. He
stated he did not “ever want to act like that again” and that he had “taken
certain steps to ensure that [he would] never act this way again or offend
anyone in any way, shape of form.” Id. at 16-17. He explained:
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[Appellant]: And as words can’t express, the words I’m sorry
doesn’t even come close to how I feel. I regret that I acted in a
manner that was just so – so male.
[The court]: So what?
[Appellant]: Excuse me?
[The court]: You acted in a manner that was so?
[Appellant]: My maleness came out. I wasn’t a man in all this.
N.T., Sentencing, 3/28/17, at 18.
Appellant expressed his regret for his actions but not for being caught,
“because I was not able to get myself out of this. I was unable to take my
hijacked brain and get it out of this nonsense.” Id. He continued, noting:
. . . I’ve completely surrendered. I’ve completely repented, and
for 17 months I finally feel free from this addiction. . . . I’m
thankful that [God is] finally molding me into a man he wanted
me to be, but regretful that it’s taken such a terrible toll on my
relationships.
Id. at 18-19.
At sentencing, letters from some of Appellant’s victims, including his
daughter, were read into the record, conveying the devastating impact
Appellant’s actions had on their lives and how he betrayed their trust. His
daughter wrote, in part:
Some might not understand the gravity of that secret camera; it’s
just a video clip or a photo. But that couldn’t be further from the
truth. When making the conscious decision to invade someone’s
privacy on such a deep level, one chooses personal gain and
trades it in for someone else’s self-worth, self-image, and any
illusions one might have of being safe and cared for.
...
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He was the one who was supposed to keep his daughter safe from
these people.
...
I feel like I was raped.
Yes, that’s how I feel.
Because in all of my nightmares, I can’t escape his presence. He
follows me everywhere, watching me. I’m completely naked, and
I can’t move, and he is free to stand there and look at me, come
closer if he wants to.
Id. at 7-8.
In the words of his long-time primary office assistant:
This was not just a one-time experiment. This was a carefully
thought out plan, with the placement and angle of the phone just
in the right place. This was a violation of one’s privacy over and
over again, which involved multiple victims.
All respect is lost and there will never be trust again. Feelings of
violation, disgust, betrayal, hatred, and frustration are constantly
at the surface.
...
[Appellant] has been secretly videotaping victims for seven years,
which happened to include minors. How do you trust that it
wouldn’t happen again? I ask on behalf of all the victims involved
that you take into consideration the length of time this was being
committed and where – workplace and home – and how well the
phones were hidden.
Id. at 10.3
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3 We note that letters on behalf of Appellant were attached to Appellant’s
motion for modification of his sentence. A letter from the Texas inpatient
facility indicates Appellant was a patient from November 21, 2015 until
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As illustrated above and as required by 42 Pa.C.S.A. § 9871(d)(1), when
reviewing the record, we have given due consideration to the nature and
circumstances of the offenses as well as Appellant’s history and
characteristics. Further, it is clear the trial court had the opportunity to
observe Appellant and to review the presentence investigation as required by
§ 9871(d)(2). From the sentencing transcript and the trial court opinion, we
are able to ascertain the findings upon which the sentence was based, and we
have given due regard to those findings in accordance with § 9871(d)(3).
Finally, as the trial court explained, the guidelines provided for a sentence of
up to 24 months for each of Appellant’s convictions and we acknowledge those
guidelines, in compliance with § 9871(d)(4).
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January 29, 2016, “and discharged Treatment Complete.” Motion for
Modification, Exhibit D, 4/6/17, at 1. In another letter, a psychologist at the
facility where Appellant began counseling after his discharge from the Texas
in-patient program related the number of psychotherapy sessions Appellant
attended and noted, “[Appellant] reports that he has devoted himself to a
wide variety of recovery activities.” Motion for Modification, Exhibit B, 4/6/17,
at 1. “In summary, based upon his self-reports, [Appellant] continues doing
all things necessary to focus upon, and sustain, his recovery. His chances of
maintaining this trajectory appear to remain good[.]” Id. A third letter is
from a counselor who explained the out-patient treatment program and
indicated Appellant “has been very active in group counseling.” Motion for
Modification, Exhibit C, 4/6/17, at 1. The letter explains Appellant “has
attended twelve step meetings and identifies the positive support that arises
from attendance of the meetings. He is planning to continue to attend the
meetings while identifying ways in which he can build community and establish
healthy plans for the future.” Id.
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As this Court recognized in Commonwealth v. Allen, 24 A.3d 1058(Pa. Super. 2011):
The sentencing court has broad discretion in sentencing a
defendant. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.
Super. 2000). This Court, therefore, accords the sentencing judge
great deference as it is the sentencing judge 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. Id. A sentencing court will not have abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias
or ill-will. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super.
2010).
Id. at 1065.
Our review leads us to conclude that imposition of consecutive
sentences for each of Appellant’s convictions clearly was not unreasonable.
Finding no abuse of discretion on the part of the trial court, or any basis for
vacating and remanding the case under 42 Pa.C.S.A. § 9871(c) as discussed
above, we shall not disturb the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2018
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