Com. v. Madonna, J., Jr. ( 2018 )

J-S24009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH JOHN MADONNA, JR. :
:
Appellant : No. 1714 MDA 2017
Appeal from the Judgment of Sentence September 6, 2017
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006048-2016,
CP-36-CR-0006049-2016, CP-36-CR-0006050-2016,
CP-36-CR-0006051-2016
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JULY 13, 2018
Appellant, Joseph John Madonna, Jr., appeals from the judgment of
sentence entered on September 6, 2017, following his jury trial convictions
for rape of a child, involuntary deviate sexual intercourse with a child,
aggravated indecent assault of a child less than 13 years of age, aggravated
indecent assault of a person less than 16 years of age, unlawful contact with
a minor, indecent assault of a person less than 16 years of age, three counts
of indecent assault of a child less than 13 years of age, and four counts of
corruption of a minor.1 We vacate the portion of Appellant’s sentence finding
him to be a sexually violent predator (SVP) and affirm in all other respects.
The trial court summarized the facts and procedural history as follows:
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118 Pa.C.S.A. §§ 3121(c), 3123(b), 3122.1(b), 3125(b), 3125(a)(8), 6318,
3126(a)(8), 3126(a)(7), and 6301(a)(1)(ii), respectively.
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On June 21, 2017, a jury found [Appellant], whose date of birth
is October 12, 1934, guilty at the above-[captioned, four] docket
numbers of [all the previously mentioned] charges. Each of
[Appellant’s] convictions arose from [his] long-term sexual abuse
of his two (2) minor granddaughters when [Appellant] was
between the ages of approximately seventy-three (73) and
eighty-one (81) years old. [Appellant’s] sexual abuse of J.G.M.,
whose date of birth was February [ ], 1999, began when she was
approximately eight (8) years old and continued until the abuse
was discovered in May of 2016 when she was approximately
seventeen (17) years old. [Appellant’s] sexual abuse of J.L.M.,
whose date of birth was February [ ], 2003, occurred when she
was between the ages of approximately four (4) and eight (8)
years old and again when she was approximately eleven (11) or
twelve (12) years old.
J.G.M., who has an intellectual disability, testified that on
numerous occasions [Appellant] had sexual intercourse with her,
compelled her to perform oral sex on him and touched her sexually
with his hands. J.L.M. testified that she once witnessed
[Appellant] receiving oral sex from J.G.M. and also testified that
on at least four (4) separate occasions, [Appellant] rubbed her []
inner thigh, breasts, or vagina over her clothes with his hands.
The testimony of both girls demonstrated grooming behavior by
[Appellant]. J.L.M. testified that [Appellant] would give her a soda
after touching her and comforted her when she showed signs of
being upset. Her testimony demonstrated that she was more
resistant to the abuse than J.G.M. and [Appellant] stated at trial
that he did [not] like J.L.M. because she was spoiled. [Appellant]
demonstrated clear favoritism towards J.G.M. and bought her
numerous gifts and treats. [Appellant’s] sexual abuse of his
granddaughters took place in different jurisdictions, beginning in
[Appellant’s] residence with his late wife and continuing at his new
residence after his wife’s death in early 2011. The abuse
continued despite having been twice reported to the father and
step-mother of the children. The father of the children is
[Appellant’s] son and is one of [Appellant’s] two only remaining
adult relatives. [Appellant’s] sexual abuse of his granddaughters
was only discovered [] when police obtained a letter written by
J.G.M. to her boyfriend about the abuse.
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[Appellant] was sentenced on September 6, 2017, following the
preparation and filing of a pre-sentence investigation report (PSI).
[At the time of sentencing, the trial court also held an SVP
hearing.]
* * *
All sentences were made concurrent except [for a] six (6) to
twenty (20) year sentence for rape of a child, [a] six (6) to twenty
(20) year sentence for involuntary deviate sexual intercourse with
a child, and [a] two (2) to six (6) year sentence [] for unlawful
contract with a minor. Therefore, [Appellant received] an
aggregate sentence [of] fourteen (14) to (46) years of
incarceration. [The trial court deemed Appellant an SVP.]
[Appellant] filed a post-sentence motion on September 18, 2017
claiming that his aggregate sentence [was] manifestly excessive.
That motion was denied by [o]rder dated October 5, 2017.
[Appellant] filed his notice of appeal on November 3, 2017 [2] and
a statement of errors [pursuant to Pa.R.A.P. 1925(b)] on
November 27, 2017. [The trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on December 18, 2017.]
Trial Court Opinion, 12/18/2017, at 2-6 (record citations and quotations
omitted).
On appeal, Appellant presents the following issue for our review:
____________________________________________
2 The trial court entered a separate sentencing order for each of the four
docket numbers. Appellant, however, filed a single notice of appeal bearing
all four caption numbers. Our Supreme Court recently decided
Commonwealth v. Walker, 2018 WL 2448643 (Pa. 2018) on June 1, 2018.
Citing the official note to Pa.R.A.P. 341, the Walker Court prospectively
determined that separate notices of appeal must be filed when convictions
arise from separate dockets. However, our Supreme Court applied Walker
prospectively from June 1, 2018, because it was “contrary to decades of case
law from [the Supreme] Court and the intermediate appellate courts that,
while disapproving of the practice of failing to file multiple appeals, [appellate
courts] seldom quashed appeals as a result.” Walker, 2018 WL 2448643, at
*6 (Pa. 2018). Because Walker was decided after the instant appeal was
filed, we will not apply it and we decline to quash this single appeal.
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I. Did the trial court err in imposing a manifestly unreasonable
sentence that was an abuse of discretion and clearly
unreasonable when the [t]rial [c]ourt’s aggregate sentence
in the above-captioned cases of fourteen (14) years to
forty-six years [of] incarceration for the [82 year-old
Appellant] was a manifestly unreasonable decision as the
[c]ourt did not consider the rehabilitative or individualized
needs of [Appellant] under 42 Pa.C.S.A. § 9721(b), and the
aggregate sentence was manifestly excessive in that the
sentences imposed are the functional equivalent to a life
sentence, which violates the prohibition against cruel and
unusual punishment of Article I, Section 13 of the
Pennsylvania Constitution and Article 8 of the United States
Constitution and the [c]ourt articulated its expectation at
sentencing that [Appellant] will [die] in jail. Additionally,
the [c]ourt considered the impermissible factor of
[Appellant’s] son protecting [Appellant] from the police, the
son preventing the charges being brought earlier and the
son preventing the son’s daughter from speaking of the
abuse by [Appellant] earlier. Additionally, the aggregate
sentence was clearly unreasonable under 42 Pa.C.S.A.
§ 9781(c)(2)?
Appellant’s Brief at 7.
Appellant claims that “his aggregate sentence of [14] to [46] years was
a manifestly unreasonable decision and a result of ill will and prejudice toward
Appellant.” Id. at 23. More specifically, Appellant argues:
The sentencing court did not reference [] Appellant’s potential for
rehabilitation while on parole or probation. Instead, the [trial
c]ourt told Appellant he would die in prison.
The sentencing judge’s sentence was contrary to the fundamental
norms underlying the sentencing scheme. While the [trial c]ourt
cited [] Appellant’s age at sentencing (82), his solid work history,
no prior record as an adult or juvenile, throat cancer that Appellant
suffers from, service with the United States Marines in the Korean
War from 1952 to 1955, the aggregate sentence imposed failed to
take the aforesaid mitigating factors into account in sentencing.
The sentencing court’s recitation of mitigation was tantamount to
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‘lip service’ only. As previously indicated, Appellant has no
opportunity for rehabilitation under the aggregate sentence[.]
Id. at 21-22. Appellant also suggests that, when fashioning his sentence, the
trial court improperly considered that the victims’ father, Appellant’s son,
protected Appellant by hiding the abuse from the police. Id. at 22.
This Court has previously determined:
It is well-settled that the right to appeal
a discretionary aspect of sentence is not absolute. Rather, where
an appellant challenges the discretionary aspects of a sentence,
an appellant's appeal should be considered as a petition for
allowance of appeal.
An appellant challenging the discretionary aspects of
his sentence must invoke this Court's jurisdiction by satisfying a
four-part test:
[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).
Whether a particular issue constitutes
a substantial question about the appropriateness of sentence is
a question to be evaluated on a case-by-case basis.
* * *
We have found that a substantial question exists when the
appellant advances a colorable argument that
the sentencing judge's actions were either: (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process. We
cannot look beyond the statement of questions presented and the
prefatory Rule 2119(f) statement to determine whether
a substantial question exists.
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It is settled that this Court does not accept bald assertions
of sentencing errors. When we examine an appellant's Rule
2119(f) statement to determine whether
a substantial question exists, our inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the
appeal on the merits. A Rule 2119(f) statement is inadequate
when it contains incantations of statutory provisions and
pronouncements of conclusions of law.
Commonwealth v. Radecki, 180 A.3d 441, 467–468 (Pa. Super. 2018)
(internal citations and most quotations omitted).
Here, Appellant has failed to raise a substantial question. Appellant
premises his argument primarily on the fact that the trial court imposed
consecutive sentences and failed to consider his age. We have consistently
recognized that excessiveness claims premised on such arguments do not
raise substantial questions for our review. Id. at 468-469, citing
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en
banc) (stating, “[a] court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a substantial
question[.]”); see also Commonwealth v. Eline, 940 A.2d 421, 435 (Pa.
Super. 2007) (an appellant's argument that “the trial court failed to give
adequate consideration to [his] poor health and advanced age” in fashioning
his sentence does not raise a substantial question).
“A defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case involves
circumstances where the application of the guidelines would be clearly
unreasonable, resulting in an excessive sentence; however, a bald claim of
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excessiveness due to the consecutive nature of a sentence will not raise a
substantial question.” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.
Super. 2013). In Dodge, the defendant was convicted of 40 counts of
receiving stolen property, and related crimes, and received an aggregate
sentence of over 40 years of imprisonment. Dodge argued that his aggregate
sentence was excessive because his non-violent criminal conduct did not
warrant a de facto life sentence. “We cautioned that although Dodge had
raised a substantial question in his particular case, a defendant does not raise
a substantial question ‘where the facts of the case being reviewed do not
warrant the conclusion that there is a plausible argument that
the sentence is prima facie excessive based on the criminal conduct
involved.’” Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa. Super.
2018), citing Dodge, 77 A.3d at 1271.
Here, Appellant used his position of trust and authority to groom,
manipulate, and sexually abuse his own granddaughters over the course of
many years. Thus, we conclude Appellant failed to make a plausible argument
that his sentence was prima facie excessive based upon his criminal conduct.
For all of the foregoing reasons, Appellant has failed to raise a substantial
question for our review.
In the alternative, even if Appellant raised a substantial question, he is
not entitled to relief. We employ the following narrow standard of review:
We may reverse only if
the sentencing court abused its discretion or committed an error
of law. Merely erring in judgment is insufficient to
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constitute abuse of discretion. A court has
only abused its discretion when the record disclosed that the
judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018) (citations and
quotations omitted).
The Sentencing Code provides:
the [trial] court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with 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).
Section 9781(d) provides that, when reviewing a sentence, we must
consider the following:
(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).
An appellate court shall vacate a 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;
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(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.A. § 9781(c).
Moreover,
where the sentencing court had the benefit of a [presentence
investigation (“PSI”)], we can assume the sentencing court was
aware of the relevant information regarding the defendant's
character and weighed those considerations along with mitigating
statutory factors. Further, where a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.
Radecki, 180 A.3d at 471 (citation omitted).
In this case, in imposing sentence, the trial court stated:
[I]t is likely that any sentence for [Appellant] would be the
equivalent of a life sentence due to his advanced age. That fact
was acknowledged at sentencing and in [Appellant’s] own filings.
That does not automatically render his sentence, imposed within
the standard guideline range and with the benefit of a PSI,
unreasonable or improper. A review of the record clearly
demonstrates a meaningful consideration of the appropriate and
relevant sentencing factors, including the PSI, [Appellant’s] age,
maturity, intelligence and work history. Though [Appellant] had
no prior record, [Appellant’s] long-term sexual abuse of these
children continued, in part, due to the unwillingness and refusal
of his family to report the known/suspected abuse and their
warnings to the children not to tell anybody about the abuse.
Contrary to [Appellant’s] claim, the actions of his family were not
improperly taken into consideration and [Appellant’s] individual
and rehabilitative needs were fully considered, as well as the
protection of the public. Despite [Appellant’s] advanced age, he
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was able to persist in the long-term sexual abuse of his
granddaughters and did so despite his family’s knowledge that
sexual abuse was taking place. The evidence and testimony at
trial demonstrate that [Appellant’s] sexual abuse of, at least,
J.G.M., would have continued indefinitely had authorities not
discovered it by accident.
Also taken into consideration was the nature of [Appellant’s]
crimes, having been committed over the course of years and
against particularly vulnerable victims, being young children and
an intellectually disabled child. Further, [Appellant] showed
absolutely no affection for his granddaughters throughout the
proceedings and at one point during trial noted that he refers to
their intimate body parts [in derogatory terms]. [Appellant] failed
to acknowledge or accept any responsibility for his actions and
expressed no remorse or regret concerning his granddaughters or
his sexual abuse of them. [Appellant’s] aggregate sentence is
proper and appropriate in light of all the relevant factors and takes
into consideration the protection of the public, the gravity of the
offense on the victims and community[,] and the rehabilitative
needs of [Appellant].
Trial Court Opinion, 12/18/2017, at 8-9 (record citations omitted).
Upon review, we discern no abuse of discretion in sentencing Appellant.
Here, the trial court had the benefit of a PSI and, thus, we presume it
considered Appellant’s individual circumstances when imposing Appellant’s
sentence. The trial court considered the nature of the crimes and determined
that, in order to protect the victims and the public, consecutive,
standard-range sentences on three of the charges were appropriate. The trial
court specifically noted Appellant groomed two victims and prolonged the
sexual abuse over many years when the children were very young. Further,
one victim is mentally disabled. The trial court considered Appellant’s age,
but then determined that Appellant’s rehabilitative prospects were slight given
his lack of remorse and his failure to appreciate the severity of his actions.
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Discerning no abuse of discretion by the trial court, we will not disturb
Appellant's sentences on appeal.
Before concluding our analysis, however, we are constrained to sua
sponte3 raise the legality of Appellant’s designation as an SVP under the Sex
Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§
9799.10-9799.41. A recent panel of this Court recognized:
In [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)], our
Supreme Court held that the registration requirements under
SORNA constitute criminal punishment. [Muniz,], 164 A.3d at
1218. In light of Muniz, this Court determined:
“[U]nder Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000)] and Alleyne [v. United States,
570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)] a factual
finding, such as whether a defendant has a mental abnormality or
personality disorder that makes him ... likely to engage in
predatory sexually violent offenses, that increases the length of
registration must be found beyond a reasonable doubt by the
chosen fact–finder.” Commonwealth v. Butler, 173 A.3d 1212,
1217 (Pa. Super. 2017) (internal quotations and citations
omitted). The Butler Court further held “section 9799.24(e)(3) of
SORNA violates the federal and state constitutions because it
increases the criminal penalty to which a defendant is exposed
without the chosen fact–finder making the necessary factual
findings beyond a reasonable doubt.” Id. at 1218. The Court
therefore concluded that trial courts no longer can designate
convicted defendants as SVPs or hold SVP hearings “until our
General Assembly enacts a constitutional designation
mechanism.” Id. The Butler Court directed trial courts to apply
only the applicable tier–based registration period, as those periods
apply based on the conviction itself, and not due to any additional
fact not found, under SORNA's procedures, by the fact–finder. The
Court ultimately reversed the order finding the defendant to be an
SVP and remanded to the trial court for the sole purpose of issuing
____________________________________________
3 See Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
(addressing legality of SVP status sua sponte).
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appropriate notice of the defendant's tier–based registration
period. Id.Commonwealth v. Golson, 2018 WL 2473514, at *7 (Pa. Super. 2018)
Here, the trial court designated Appellant an SVP on September 6, 2017.
In light of Butler and our Supreme Court’s decision in Muniz, as summarized
above, we are constrained to vacate the portion of the trial court’s order of
September 6, 2017 designating Appellant as an SVP. We remand the case to
the trial court for the sole purpose of issuing the appropriate notice under 42
Pa.C.S.A. § 9799.23 as to Appellant’s tier-based registration obligations under
SORNA.
Judgment of sentence affirmed in part, SVP designation vacated. Case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/18
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