Com. v. Perry, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY L. PERRY :
:
Appellant : No. 1968 EDA 2022
Appeal from the Judgment of Sentence Entered March 14, 2022
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006550-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 28, 2023
Larry L. Perry appeals from the judgment of sentence imposed following
an open nolo contendere plea to two counts of statutory sexual assault and
two counts of corruption of minors.1 For these offenses, Perry was sentenced
to an aggregate fifty-two to one-hundred-and-four months of imprisonment.
On appeal, Perry exclusively challenges the discretionary aspects of his
“manifestly excessive” sentence, contending, inter alia, that the court relied
on inappropriate factors. After a thorough review of the record, we conclude
that the court did not abuse its discretion in imposing its sentence. Therefore,
we affirm.
In summary:
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. § 3122.1 and 18 Pa.C.S. § 6301(a)(1), respectively.
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On July 19, 2019, the Abington Township Police received a
report from a twenty-six[-]year[-]old woman [, Victim 1,] who
indicated that she had an inappropriate sexual relationship with
[Perry] when he was her teacher at the Parkway School in
Philadelphia, [Pennsylvania]. [Victim 1] further detailed that she
met [Perry] at the age of thirteen and the two initially exchanged
flirtatious texts. Eventually this developed into a sexual
relationship when [Victim 1] was fifteen years old. During these
sexual encounters, [Perry] would pick [Victim 1] up near her
residence and transport her back to his residence located in Willow
Grove, [Pennsylvania]. [Victim 1], while still a minor and [Perry’s]
student, engaged in sexual intercourse with [Perry] multiple times
at this residence. This sexual relationship continued into [Victim
1’s] adulthood and ended when she was about twenty-five years
old.
During the course of this investigation, Abington Police
learned of another female student, [Victim 2], who had engaged
in an inappropriate sexual relationship with [Perry]. [Victim 2]
indicated that she had met [Perry] when she was either fourteen
or fifteen years old when she was a freshman at the Parkway
School in Philadelphia. [Perry] provided her with his cell phone
number and communicated with [Victim 2] by email, phone calls
and text messaging. [Victim 2] recounted that she had a troubled
home life due to her father’s addiction to drugs and her mother’s
significant mental health issues. In light of these factors, [Victim
2] would talk with [Perry] in order to confide in him and to receive
support and guidance. [Perry] subsequently began to drive
[Victim 2] home from school. [Perry’s] relationship with [Victim 2]
eventually progressed to sexual in nature and the two engaged in
sexual intercourse on several occasions beginning when she was
fifteen years old. This sexual relationship continued into [Victim
2’s] adulthood and ended when she was approximately twenty-
five years old.
Trial Court Opinion, 10/6/22, at 1-2 (numerical parentheticals omitted).
After entering into a nolo contendere plea to the four counts enumerated
above, Perry received “an aggravated[-]range sentence of twenty to forty
months of imprisonment with respect to each statutory sexual assault charge
and another aggravated[-]range sentence of six to twelve months of
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imprisonment with respect to each corruption of minors charge.” Id., at 2
(numerical parentheticals omitted). In total, as all sentences were ordered to
run separately, Perry was consecutively sentenced to the aforesaid fifty-two
to one-hundred-and-four months of imprisonment.
Following sentencing, Perry filed a timely post-sentence motion, which
was correspondingly denied. Thereafter, Perry filed a timely notice of appeal.
We note that the relevant parties have complied with their respective
obligations under Pennsylvania Rule of Appellate Procedure 1925, and as such,
this appeal is ripe for review.
On appeal, Perry presents one issue for our consideration:
1. Did the lower court abuse its discretion at sentencing or enter
a manifestly excessive sentence?
See Appellant’s Brief, at 4.
As this case exclusively contests the lower court’s sentencing
determinations, we start with our well-settled standard of review:
[s]entencing 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 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. Moye, 266 A.3d 666, 676-77 (Pa. Super. 2021) (citation
omitted).
However, because Perry specifically questions the discretionary aspects
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of his sentence, there is a preliminary hurdle he must satisfy prior to review
of his underlying substantive claim. In particular, “[t]he right to appellate
review of the discretionary aspects of a sentence is not absolute, and must be
considered a petition for permission to appeal.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). Accordingly, “[a]n
appellant must satisfy a four-part test to invoke this Court's jurisdiction when
challenging the discretionary aspects of a sentence.” Id.In expounding upon the four-part test, an appellant must show that:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “Substantial questions” have been interpreted as those questions
that set “forth a plausible argument that the sentence violates a provision of
the sentencing code or is contrary to the fundamental norms of the sentencing
process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(citations omitted); see also 42 Pa.C.S. § 9721(b) (mandating that a
sentence of confinement must be 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[ ]”). If
the four-part test is satisfied, then we are tasked with reviewing an appellant’s
substantive claim, paying particular attention to whether the lower court, at
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any point, abused its discretion in sentencing. See Commonwealth v.
Akhmedov, 216 A.3d 307, 328-29 (Pa. Super. 2019) (en banc).
Perry timely filed a post-sentence motion and notice of appeal.
Moreover, Perry included a concise Rule 2119(f) statement in his brief. See
Appellant’s Brief, at 18. We conclude that he has met the first three
requirements of the aforementioned four-part test.
In gleaning whether his Rule 2119(f) statement contains a substantial
question, we conclude that Perry has minimally complied with his obligation
to present a substantial question. Distilled down, his statement contains two
bald sentences relevant to our determination: “Mr. Perry contends that the
trial court imposed a manifestly excessive sentence and abused its discretion.
… Mr. Perry also contends that the trial court’s sentence was inconsistent with
Pennsylvania’s system of individualized sentencing.” Id. However, the
Commonwealth concedes “that such allegations set forth a substantial
question for purposes of this court’s analysis[.]” Appellee’s Brief, at 8.
Implicitly, and as gathered through the rest of his brief, Perry questions
whether the sentencing court acted with overt bias when it sentenced him.
Because “an allegation of bias in sentencing implicates the fundamental norms
underlying sentencing[,]” Commonwealth v. Corley, 31 A.3d 293, 297 (Pa.
Super. 2011), we find that he has raised a substantial question. Consequently,
we proceed to the merits of Perry’s claim that his total sentence was
manifestly excessive.
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Perry suggests that the court was without any basis to: (1) impose
aggravated-range sentences at any of the four nolo contendere counts; or (2)
run the statutory sexual assault sentences consecutive to the corruption of
minors sentences. See Appellant’s Brief, at 20 (remarking that, in the absence
of either, Perry’s sentence would have been twenty-eight to fifty-six months
of incarceration). Perry bolsters his argument through his proffer of “five
factors[.]” Id. At 21.
First, Perry contends that “the trial court relied on its own imagination
of what happened to attack [his] character inaccurately.” Id. Perry takes
umbrage with the court calling him “a sexual predator, the wors[t] type ever,
since as their teacher, [he was] to protect them, not rape them.” N.T.,
3/14/22, at 131. Instead, Perry posits that forcibly kidnaping, torturing,
raping, and killing an infant is worse than any of Perry’s actions. See
Appellant’s Brief, at 21. Relatedly, Perry avers that the court speculatively
sentenced him as if there were more than two victims. See id. (“[T]he
[sentencing] court presumed with no evidence that there were likely other
victims despite none of the witnesses being aware of any such conduct.”).
Replicated in full, the court stated:
[Perry’s] conduct also constituted typical grooming by a sexual
predator. First, [Perry] picked [his] targets. The ones [he] knew -
- the ones we know about are [Victim 1] and [Victim 2]. Only
[Perry] know[s] if there were more. [Perry] picked them because
[he] knew they were vulnerable and needed [him].
N.T., 3/14/22, at 130. Finally, under the same auspice, Perry asserts that the
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court “ascribed a sexual psychology to [him] with no basis in fact.” Appellant’s
Brief, at 22. Perry faults the court remarking that the victims “got too old” for
him so that he needed to find other minors “to victimize.” N.T., 3/14/22, at
132.
Second, Perry challenges the court’s statement, which unequivocally
indicated that Perry’s actions were “not consensual relations. This was rape.”
Id., at 130. Conversely, Perry writes that “there were no claims that the sex
was not factually consensual.” Appellant’s Brief, at 22. As “rape” is a distinctly
enumerated crime in Pennsylvania, one he had not been charged with nor
pleaded nolo contendere to, Perry faults the court’s subsequent explanation
that it utilized “rape” to describe “the fact that the women were not of age
when the sex began.” Id., at 23 (citation to the court’s opinion omitted). Perry
argues that “[i]f the [sentencing] court merely meant through the use of the
word ‘rape’ that the victims were not of age, that was no reason to aggravate
the sentence to the maximum extent that comported with the guidelines.” Id.,
at 23-24.
Third, Perry suggests that the structure of his sentence was “designed
… to insulate it from more stringent appellate review.” Id., at 25. Specifically,
because he was sentenced within, but in the aggravated-range, of the
sentencing guidelines and further sentenced consecutively, the court avoided
“entering an above-guidelines sentence[,]” obviating the need to provide a
written statement justifying a deviation from the guidelines. Id., citing 42
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Pa.C.S. § 9721(b). Moreover, the crimes against both victims featured “the
same conduct” insofar as there were no separate facts providing daylight
between the corruption of minors and statutory sexual assault crimes. Id., at
26 (remarking that, based on each offense, as defined, Perry did not commit
an additional or separate “act … that would tend to corrupt the women’s
morals beyond the mere act of sexual intercourse[]” thereby making any
corruption of minors sentence unsubstantiated). As such, “[t]here was no
additional harm that merited a separate consecutive sentence.” Id.
Fourth, Perry believes that the court erroneously concluded that he
“lacked remorse for his actions.” Id., at 27. Referring to it as “a single slip of
the tongue[,]” Appellant’s Brief, at 27, Perry claims that the court placed too
much emphasis on him saying that he was regretful that his victims “would
think that [he’s] brought them harm.” N.T., 3/14/22, at 128 (emphasis
added). Instead, the court should have taken a broader perspective of Perry’s
remorse, which indicated that he was sorry for his actions.
Fifth, Perry contends that the court did not consider his “amenability to
treatment.” Appellant’s Brief, at 28. Specifically, the court effectively ignored,
or at a minimum did not acknowledge, the sex offender and needs assessment
report establishing that his “treatment with cognitive behavioral therapy …
could be effective.” Id. (record citation omitted).
In addressing Perry’s issues in turn, we first underline the fact that the
sentencing court had the benefit of a pre-sentence investigation (“PSI”)
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report. Accordingly, we “presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988).
Through our review of Perry’s discrete allegations, cognizant of the wide
latitude afforded to the court in imposing a sentence, we find none of them to
have merit. To start, when juxtaposed against the court’s discussion at
sentencing, it is unclear the legal import of Perry’s comparison of his own
actions to what he considers the actions of “worse offenders.” In any event,
while the court’s rhetorical flourish of calling him “the wors[t] type ever” may
or may not be factually true, Perry has not presented any authority to establish
that the court’s phrasing, referring to him as a sexual predator that was
granted access to his victims specifically due to his position as a teacher,
somehow constituted reversible error.
As to the court’s alleged consideration of there having been more than
two victims, the court concluded, and the record reflects, that it “made no
representation that it knew there were other victims or that it was
hypothesizing that there had to be other victims.” Trial Court Opinion,
10/6/22, at 5. “The court specifically stated that the only victims of [Perry’s]
actions the court knew about were the victims at issue in the instant matter.”
Id. Perry has not provided any evidence that the court crafted “its sentence
in light of some unknown or hypothetical victims.” Id. We agree. In fact, the
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court expressly disclaimed any indica of there being other victims. See N.T.,
3/14/22, at 130 (“Only you[, Perry,] know if there were more [victims].”).
Lastly, while the court did indicate that Perry stopped his involvement
with the victims because they “got too old for [Perry] and [Perry] needed to
find another minor to victimize[,]” id., at 132, Perry has again failed to show
that this so-called “psychological evaluation” of Perry’s tendencies, a singular
sentence that is being argued in isolation, necessitates reversal. To the extent
that the court forayed into discussion of something beyond the scope of the
facts underpinning Perry’s criminal acts and logical inferences taken
therefrom, there is no evidence that the court’s belief of Perry’s desire to “find
another minor” after he had exhausted the two victims played any part in its
ultimate sentencing determinations. In total, then, Perry’s first factor does not
establish any abuse of discretion from the lower court.
Regarding the court’s use of the word “rape,” the court writes that “due
to the ages of the victims, they were unable to legally consent to engaging in
sexual relations with [Perry].” Trial Court Opinion, 10/6/22, at 4 (citing,
further, Commonwealth v. Parsons, 969 A.2d 1259, 1271 (Pa. Super.
2009), wherein this Court wrote that, as corruption of minors and statutory
sexual assault are statutory offenses, victims have no capacity to consent)
(emphasis added). Notwithstanding the court’s use of the word “rape,”
predicated on the nonconsensual nature of Perry’s actions and Perry’s position
of power over his victims, “the court deemed it was appropriate to use the
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layman’s term of rape at the sentencing hearing[.]” Trial Court Opinion,
10/6/22, at 5. The court disclaimed making “any determinations that [Perry]
utilized any degree of force which would have satisfied elements under the
rape statute[, see 18 Pa.C.S. § 3121], nor did the court consider the
sentencing guidelines with a rape conviction.” Id. (internal citation formatting
altered). Instead, “[t]he court simply wanted to impress upon [Perry] the
gravity of what he had done, which it deemed would be more effective with
the use of the layman’s term of rape.” Id. The court’s use of the word “rape”
when compared with the statute defining the criminal act of rape, see 18
Pa.C.S. § 3121(a) (as is relevant here, rape is the engaging in sexual
intercourse with a complainant by forcible compulsion or threat of forcible
compulsion), was arguably imprecise, given the nature of the crimes that
Perry pleaded nolo contendere.2 However, the court has expressly denied any
utilization of the legal definition of rape, or its attendant sentencing guidelines,
in imposing Perry’s aggregate sentence. Therefore, there is no evidence that
the court found Perry guilty of an independent crime. In the absence of any
demonstration that the court was forbidden from expressing a colloquial
understanding of the nonconsensual activity between Perry and his victims,
____________________________________________
2 We note that culpability for intercourse based on the age of the victim and
offender was previously set forth in the “statutory rape” statute, see 18
Pa.C.S. § 3122 (repealed), which was repealed in 1995 and replaced with the
“statutory sexual assault” offense of which Perry was convicted. See
Commonwealth v. Dennis, 784 A.2d 179, 180-81 (Pa. Super. 2001)
(discussing legislative history).
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Perry is not entitled to relief at this factor.
Moving to his next contention, Perry contests the aggravated and
consecutive nature of his sentence. Given the wide discretion afforded to
sentencing courts, “on the appropriate record and for the appropriate reasons,
[that court may] consider any legal factor in imposing a sentence in the
aggravated range.” Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.
Super. 2006) (citation omitted). Similar discretion is afforded to courts in
imposing consecutive or concurrent sentences. See 42 Pa.C.S. § 9721(a)
(allowing a court to impose sentences “consecutively or concurrently[]”); see
also Commonwealth v. Taylor 277 A.3d 577, 593 (Pa. 2022).
In justifying its sentencing scheme, the court states that
[Perry] was a high school teacher who took advantage of the
vulnerabilities of two of his students for the purpose of engaging
in sexual relations with both women. [Perry] utilized sexual
grooming practices with both students in order to gain their trust
and control and conceal the nature of the relationships.
Trial Court Opinion, 10/6/22, at 9-10. As the Commonwealth points out, “[t]he
statutory sexual assault charges only covered the sexual contact that [Perry]
had with the victims during the period of time that the victims had sex with
[Perry] while they were under age [sixteen].” Appellee’s Brief, at 21 (citation
omitted); see also 18 Pa.C.S. § 3122.1 (requiring, inter alia, the victim to be
“under the age of 16 years[]”). “The corruption of minors charges covered the
period of time that the victims engaged in sexual activity with [Perry] that
extended from the time [the] victims were [sixteen] until they were [eighteen]
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years old.” Appellee’s Brief, at 21 (citation omitted); see also 18 Pa.C.S. §
6301 (involving the act of “corrupt[ing] the morals of any minor less than 18
years of age[]”). The Commonwealth then describes the corruption of minors
offense, as it applied here, to “encompass[ing] more than just the physical
acts of sex that [Perry] engaged in with two minors. [Perry] violated the
position of trust which he had as their teacher.” Id.
The court’s on-the-record explanation of its rationale in sentencing Perry
consecutively and in the aggravated range at all four offenses is exhaustive.
See N.T., 3/14/22, at 129-33. In particular, the court noted Perry’s position
as a “high school teacher[.]” Id., at 129. Despite this title, Perry “used [his]
powers of teacher to satisfy [his] own sexual gratification. Due to [his] power
over the students, [he] was in a position to lure or coerce those students to
have sex with [him].” Id., at 129-30. “Due to their age and the power [he]
had over them, they could not legally or morally consent to have sex with
[him].” Id., at 130. Given Perry’s position, he was in a position of trust. See
id. “However, [he] took advantage of that trust by grooming those girls and
then sexually abusing them. [He] took advantage of [his] position of trust to
be a classic sexual predator.” Id. The court also noted that Perry’s conduct
“constituted typical grooming by a sexual predator.” Id. Perry picked known
targets who “were vulnerable and needed [him].” Id. Then, he proceeded to
develop a personal relationship with them, allowing his victims to confide in
him. See id., at 130-31. Perry isolated his victims and then began sexually
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exploiting them. See id., at 131. That grooming “continued for years, which
allowed [Perry] to control them and prevent them from seeking help.” Id.
With there being two victims, the court stated that he needed “to be sentenced
as to each of them. Otherwise, [he] would get a volume discount for [his]
criminal conduct.” Id. “This conduct went on for a period of time. This conduct
was premeditated. [Perry’s] conduct was predatory. It was not just a one-
time incident.” Id., at 131-32.
As the court had the benefit of a PSI report and unequivocally expressed
its rationale for imposing its aggregate sentence, Perry has not presented a
legally salient basis for this Court to deviate from the lower court’s ultimate
sentencing determination. We are obligated to “accord the sentencing court
great weight as it 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.” Commonwealth v. Ventura, 975 A.2d 1128 (Pa. Super.
2009). Accordingly, the court, did not abuse its discretion in imposing
aggravated-range sentences at each count and ordering them to run
consecutively.
Relatedly, as to Perry’s belief that the sentencing court was erroneous
in its determination that he lacked remorse for his crimes, the court was
permitted to ascertain whether he was, in fact, remorseful. See id. In making
this determination, the court had the benefit of seeing him in person and
hearing him speak. Moreover, the court was cognizant of the facts
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underpinning Perry’s crimes. Other than attempting to persuade this Court to
reach an opposite conclusion as to his amount of remorse, Perry has not
presented any reason to depart from the lower court’s factual determination
that, after observing and analyzing Perry’s expressions and the content of his
statement before the court, he showed a lack of remorse.
As to his final factor, which faults the court for not discussing his
amenability to treatment options, Perry’s claim is belied by the record. While
he suggests it was not utilized at sentencing, the court clearly considered the
contents of the sex offender and needs assessment report. Specifically, in
pronouncing Perry’s sentence, it stated that he “is to comply with the
recommendations of the psychosexual evaluation.” N.T., 3/14/22, at 135.
Therefore, although it is unclear, based on his argument, whether this will
lead to the specific pathway of treatment that he seeks, the court noted the
at-issue report and made it an inherent part of its sentencing scheme. As
such, Perry is due no relief on this issue.
As none of Perry’s separate arguments contained within his overarching
contention that the court abused its discretion in imposing its aggregate
sentence are meritorious, we therefore affirm his judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2023
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