Com. v. Dove, M.

J-A09021-23
2023 PA Super 131COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS GARETH KEVON DOVE :
:
Appellant : No. 1380 MDA 2022
Appeal from the Judgment of Sentence Entered September 1, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003445-2020
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
OPINION BY OLSON, J.: FILED: JULY 25, 2023
Appellant, Marcus Gareth Kevon Dove, appeals from the September 1,
2022 judgment of sentence entered in the Court of Common Pleas of Berks
County that imposed an aggregate sentence of 86 to 177 years’ incarceration.
On November 16, 2021, a jury convicted Appellant of rape of a child (4
counts), involuntary deviate sexual intercourse with a child (3 counts),
aggravated indecent assault – complainant less than 13 years of age (1
count), indecent assault – complainant less than 13 years of age (2 counts),
endangering welfare of children (“EWOC”) (2 counts), and corruption of
minors (2 counts).1 We affirm Appellant’s convictions. We vacate, in part,
Appellant’s judgment of sentence only insofar as it directs Appellant to comply
with the requirements of Subchapter H of Pennsylvania’s Sexual Offender
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1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(a)(7), 3126(a)(7), 4304(a)(1), and
6301(a)(1)(ii), respectively.
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Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10 to
9799.40 and remand the case in accordance with this opinion.
The trial court summarized the factual history as follows:
[Appellant] is the stepfather to two female [minors, D.W., born
March 2010, and S.S., born December 2005. Appellant] resided
with [D.W.] and S.S. [in] Reading, Berks County, Pennsylvania.
When [D.W.] was 6 or 7 years of age, [Appellant] touched
[D.W.’s] chest and vagina multiple times with his hand both over
and under her clothes. [D.W.] and S.S. shared a bunk bed in a
room at the residence. [D.W.] slept on the top [bunk] bed[,] and
S.S. slept on the bottom [bunk bed]. When [D.W.] and S.S. were
in their bunk bed[s, Appellant] would get into S.S.'s bed[,] and
[D.W.] felt the [bunk bed] shaking. [Appellant] continued with
this behavior until [D.W.] reached 9 years of age. [Appellant]
stopped living in [the residence] around that time.
When S.S. was around 8 years of age, [Appellant] touched S.S.'s
butt and vagina both over and under her clothes. When S.S. was
10 years old, [Appellant] put his penis inside of S.S.'s mouth,
vagina[,] and anus. [Appellant] had vaginal intercourse with S.S.
when she was 10 years old[,] and this [sexual assault] occurred
multiple times [] until [S.S.] was 14 years old. When S.S. was
around the age of 11 or 12, [Appellant] started putting his penis
into her anus. This happened between 12-15 times. [Appellant]
also put his penis into S.S.'s mouth and would ejaculate. When
S.S. was around 10 or 11 years old, [Appellant] touched S.S.'s
vagina with his hands and put his fingers inside [] her vagina.
[Appellant] also put his mouth on S.S.'s vagina and put his tongue
inside [her vagina]. S.S. was around 10 or 11 years of age when
these incidents occurred[,] and [the incidents] continued until she
was 14.
Trial Court Opinion, 11/15/22, at 2-3 (record citations omitted).
On November 16, 2021, a jury convicted Appellant of committing the
aforementioned sexual offenses against the two minor victims. On July 26,
2022, and prior to sentencing, the trial court designated Appellant as a
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sexually violent predator (“SVP”) pursuant to SORNA - Subchapter H, having
found that the Commonwealth met its burden by clear and convincing
evidence.2 N.T., 7/26/22, at 19; see also Trial Court Order, 7/27/22; 42
Pa.C.S.A. § 9799.12 (defining “sexually violent predator”). On September 1,
2022, Appellant was sentenced as follows. On each of the 4 counts of rape of
a child (Counts 1 through 4), Appellant was sentenced to 20 to 40 years’
incarceration. As part of the sentence imposed at Count 1, Appellant received
a credit of 695 days for time served. The trial court directed that the
sentences imposed at Counts 2, 3, and 4 should each run consecutively to the
sentence imposed on the immediately-proceeding count. On Count
8 (aggravated indecent assault – complainant less than 13 years of age), the
trial court imposed a sentence of 5 to 10 years’ incarceration, with the
sentence set to run concurrently to the sentence imposed on Count 1. On
Count 9 (indecent assault – complainant less than 13 years of age), Appellant
received a sentence of 1 to 7 years’ incarceration, with the sentence set to
run consecutively to the sentence imposed on Count 4. On Count 10 (EWOC),
Count 11 (corruption of minors), Count 12 (indecent assault – complainant
less than 13 years of age), Count 13 (EWOC), and Count 14 (corruption of
____________________________________________
2 In the case sub judice, the sexual offenses against the two minor victims
occurred between January 1, 2015, and August 6, 2020. Trial Court Opinion,
11/15/22, at 1. Subchapter H of SORNA applies in the case sub judice because
Appellant committed the sexual offenses on or after December 20, 2012. See
Commonwealth v. Thorne, 276 A.3d 1192, 1193 n.1 (Pa. 2022) (stating,
revised Subchapter H of SORNA applies to individuals who committed their
sexual offenses on or after December 20, 2012).
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minors), the trial court imposed a separate sentence at each count of 1 to 2
years’ incarceration with each individual sentence set to run consecutively to
the sentence imposed on the immediately-proceeding count. Appellant’s
convictions of involuntary deviate sexual intercourse (Counts 5, 6, and 7)
merged for sentencing purposes. Overall, Appellant received an aggregate
sentence of 86 to 177 years’ incarceration. Sentencing Orders, 9/1/22; see
also N.T., 9/1/22, at 28-31.
On September 8, 2022, Appellant filed a post-sentence motion, seeking
a modification of his sentence on grounds it was excessive and repetitious.
Appellant also requested that the trial court reconsider his SVP designation.
The trial court denied Appellant's post-sentence motion on September 14,
2022. This appeal follows.3
Appellant raises the following issues for our review:
1. Whether Count 8[ (]aggravated indecent assault[)] should
have merged with Count 1[ (]rape of a child[)] for
sentencing purposes?
2. Whether the [trial] court abused its discretion in ordering an
overall sentence which is manifestly excessive and by
denying the post-sentence motion seeking a modification of
the overall sentence?
3. Whether SORNA, which Appellant has been ordered to
comply with, is unconstitutional as a legislative scheme in
its use of a constitutionally infirm rebuttable presumption
____________________________________________
3 Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
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and in the punitive effects of its registration and notification
provisions?
Appellant’s Brief at 7 (extraneous capitalization omitted).
In his first issue, Appellant asserts that his conviction of aggravated
indecent assault (Count 8) should have merged for sentencing purposes with
his conviction of rape of a child (Count 1). Id. at 17-21. Such a claim raises
a challenge to the legality of the sentence for which our standard of review is
de novo and our scope of review is plenary. Commonwealth v. Quintua,
56 A.3d 399, 400 (Pa. Super. 2012), appeal denied, 70 A.3d 810 (Pa. 2013).
Appellant was convicted of the following pertinent offenses under the
Crimes Code:
§ 3121. Rape
...
(c) Rape of a child. - A person commits the offense of rape of a
child, a felony of the first degree, when the person engages in
sexual intercourse with a complainant who is less than 13 years
of age.
18 Pa.C.S.A. § 3121(c).
§ 3125. Aggravated indecent assault
(a) Offenses defined. - Except as provided in sections 3121
(relating to rape), 3122.1 (relating to statutory sexual assault),
3123 (relating to involuntary deviate sexual intercourse) and
3124.1 (relating to sexual assault), a person who engages in
penetration, however slight, of the genitals or anus of a
complainant with a part of the person's body for any purpose other
than good faith medical, hygienic or law enforcement procedures
commits aggravated indecent assault if:
...
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(7) the complainant is less than 13 years of age[.]
18 Pa.C.S.A. § 3125(a)(7).
Whether these offenses merge for sentencing purposes turns on Section
9765 of our Sentencing Code, which provides,
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the [trial]
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S.A. § 9765. Thus, Section 9765 “prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single criminal act; and 2) all of
the statutory elements of one of the offenses are included in the statutory
elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833
(Pa. 2009). “If both crimes require proof of at least one element that the
other does not, then the sentences do not merge.” Commonwealth v. Allen,
856 A.2d 1251, 1253 (Pa. Super. 2004) (stating, the operative consideration
in a merger analysis is “whether the elements of the offenses are the same or
different), relying on Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994).
Pursuant to statutory definitions, to convict a defendant of rape of a
child, the Commonwealth must prove beyond a reasonable doubt that (1) the
defendant engaged in sexual intercourse with the child-victim, and (2) that
the child-victim was under the age of 13. Commonwealth v. Hacker, 15
A.3d 333, 336-337 (Pa. 2011); see also 18 Pa.C.S.A. § 3121(c). To convict
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a defendant of aggravated indecent assault of a child-victim under the age of
13, the Commonwealth must prove beyond a reasonable doubt that (1) the
defendant penetrated, however slight, the genitalia or anus of the child-victim,
with a part of the defendant’s body, (2) the penetration was not done for a
good faith medical, hygienic, or law enforcement procedure or purpose, and
(3) that the child-victim was under the age of 13.4 Commonwealth v.
____________________________________________
4 For purpose of defining the type of penetration necessary to establish a
conviction of aggravated indecent assault, we examine the statutory definition
of aggravated indecent assault. A plain reading of the statutory definition,
taking into consideration the qualifier clause, “[e]xcept as provided in,”
demonstrates that the term “penetration” for purpose of aggravated indecent
assault cannot include the type of penetration necessary for a conviction of:
rape (18 Pa.C.S.A. § 3121 – requiring penetration that amounts to sexual
intercourse, as defined infra); statutory sexual assault (18 Pa.C.S.A.
§ 3122.1 – requiring penetration that amounts to sexual intercourse, except
for acts that constitute rape); involuntary deviate sexual intercourse (18
Pa.C.S.A. § 3123 – requiring penetration that amounts to deviate sexual
intercourse, which includes, inter alia, intercourse per os and per anus, as
defined infra, between human beings (see 18 Pa.C.S.A. § 3101)); or sexual
assault (18 Pa.C.S.A. § 3124.1 – requiring penetration that amounts to sexual
intercourse or deviate sexual intercourse, except for acts that constitute rape
or involuntary deviate sexual intercourse). See 18 Pa.C.S.A. § 3125(a).
When the "exceptions clause” that appears at the beginning of the definition
of the offense of aggravated indecent assault at Section 3125(a) is applied,
we conclude that the term “penetration,” for purposes of specifying the
elements of aggravated indecent assault, cannot refer to the defendant’s use
of his penis to penetrate the complainant’s genitalia or anus, nor can it refer
to the defendant’s use of his mouth/tongue to penetrate the complainant’s
genitalia. Under Section 3101 and our interpretive case law, such conduct
constitutes “sexual intercourse,” which falls within the offense of rape of a
child (Section 3121(c)) and is excluded by definition from the offense of
aggravated indecent assault, as framed under Section 3125(a)(7).
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Hunzer, 868 A.2d 498, 516 (Pa. Super. 2005); see also 18 Pa.C.S.A.
§ 3125(a)(7).
For the purpose of our discussion, “sexual intercourse” is defined,
pursuant to Section 3101 of the Crimes Code, as “[i]n addition to its ordinary
meaning, includes intercourse per os or per anus, with some penetration
however slight; emission is not required.” 18 Pa.C.S.A. § 3101; see also
Commonwealth v. Kelley, 801 A.2d 551, 554 (Pa. 2002). Our Supreme
Court, in Kelley, supra, stated that, for purpose of Section 3101, the term
“intercourse” is defined as “physical sexual contact between individuals that
involves the genitalia of at least one person.” Kelley, 801 A.2d at 555
(brackets omitted). Thus, the definition of “sexual intercourse” encompasses
vaginal sex (penetration, however slight, of a vagina with a penis), oral sex
(penetration, however slight, of a mouth with a penis or penetration, however
slight, of a vagina with a mouth/tongue), or anal sex (penetration, however
slight, of the opening of the alimentary canal with a penis).5 Commonwealth
v. Martin, 101 A.3d 706, 729 (Pa. 2014); see also Kelley, 801 A.2d at
554-555. Digital penetration, however slight, of the vagina, mouth, or the
opening of the complainant’s alimentary canal does not qualify as “sexual
____________________________________________
5 The term “penetration” is defined, inter alia, as the “passage of anything into
or through a body.” OXFORD ENGLISH DICTIONARY 2119 (Compact Ed. 1971).
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intercourse” under Section 3101 of the Crimes Code.6 Kelley, 801 A.2d at
555.
While the crimes of rape of a child and aggravated indecent assault of a
victim less than 13 years of age both require the Commonwealth to identify a
child-victim under 13 years of age and to prove an act of penetration, however
slight, both offenses require proof of at least one element the other does not.
The crime of rape of a child requires the Commonwealth to demonstrate that
the defendant engaged in “sexual intercourse” with a child-victim in
accordance with the definition of “sexual intercourse” found in Section 3101.
Therefore, the crime of rape of a child includes an element not present in the
crime of aggravated indecent assault of a victim less than 13 years of age.
Similarly, the crime of aggravated indecent assault of a victim less than
13 years of age includes an element that is not included within the statutory
definition of rape of a child. In particular, as discussed supra, to sustain a
conviction for aggravated indecent assault of a victim less than 13 years of
age, the Commonwealth must establish that, except as provided in Section
3121 (relating to rape), as well as certain other provisions of the Crimes
Code, the defendant penetrated, however slightly, the genitalia or anus of a
____________________________________________
6 The Kelley Court explained that digital penetration of a vagina does not
qualify as “sexual intercourse” because sexual intercourse “within its ordinary
meaning” involves the penetration of a vagina by a penis. Kelley, 801 A.2d
at 555. Digital penetration of a victim’s mouth or opening of the alimentary
canal also does not qualify as “sexual intercourse” because neither act of
penetration involves the genitalia, i.e., reproductive organ, of one of the
persons involved. Id.
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complainant less than 13 years of age with a part of his or her body for some
purpose other than a good faith medical, hygienic, or law enforcement
procedure. See 18 Pa.C.S.A. § 3125(a)(7). By definition, the statutory
provisions that define the offense of aggravated indecent assault exclude the
activity (i.e., “sexual intercourse” as defined by Section 3101 of the Crimes
Code and the interpretive case law) proscribed by Section 3121. As such, the
“penetration” that must be proven to sustain a conviction for aggravated
indecent assault cannot be the same type of “penetration” that is criminalized
under Section 3121 (rape).
Moreover, in the case sub judice, these two crimes did not arise from
the same criminal act.
When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a break in the
chain of criminal activity. The issue is whether the actor commits
multiple criminal acts beyond that which is necessary to establish
the bare elements of the additional crime, then the actor will be
guilty of multiple crimes which do not merge for sentencing
purposes.
Commonwealth v. Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016)
(citation and quotation marks omitted). “In determining whether two or more
convictions arose from a single criminal act for purposes of sentencing, [this
Court] must examine the charging documents filed by the Commonwealth[,]”
including the criminal information, criminal complaint, and affidavit of
probable cause. Id. at 1031-1032. Where the documents filed by the
Commonwealth “describe the operative facts in such a way as to distinguish
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the specific conduct underlying the offenses,” then the offenses are the result
of multiple criminal acts for purpose of avoiding merger at sentencing. Id. at
1032.
Here, the criminal complaint charged Appellant with 4 counts of rape of
a child based upon the fact that Appellant “did have anal intercourse, vaginal
intercourse, did perform oral sex on [S.S.], and did receive oral sex from
[S.S.]” Criminal Complaint, 11/24/20, at Offense #1. Thus, the plain reading
of these 4 counts of rape of a child, as described in the criminal complaint, are
based upon episodes involving vaginal, oral, and anal intercourse. Although
the criminal complaint asserted a generic charge of aggravated indecent
assault, setting forth a recitation of the statutory crime as the factual basis in
support of the charge, the affidavit of probable cause attached to the criminal
complaint stated that Appellant “did on multiple occasions, insert his finger
into S.S.’s vagina, did force her to perform oral sex on him, did perform oral
sex on her, and did have both vaginal and anal intercourse with her.”7
Affidavit of Probable Cause, 11/24/20, at ¶4. Upon review, the
Commonwealth alleged criminal acts, namely digital penetration, to support a
charge of aggravated indecent assault of a child, that were distinct and
delineated from the conduct supporting the rape of a child charges. This
____________________________________________
7 The distinct and separate criminal acts, which constituted the various
charges, were further supported by the victim’s testimony at trial. N.T.,
11/15/21, at 96-101.
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distinction between the various criminal acts and corresponding criminal
charges is further highlighted by the verdict slip in which the 4 counts of rape
of a child indicated that they were based on the acts of “vaginal penetration
with penis, anal penetration with penis, oral penetration with penis, and
vaginal penetration with tongue.” Verdict Slip, 11/16/21, at Counts 1-4.
Therefore, we conclude, based upon review of the record, that the rape of a
child (4 counts) and aggravated indecent assault of a child sexual offenses
were based on discrete and distinct criminal acts for the purpose of avoiding
merger at sentencing. See Commonwealth v. Montgomery, 687 A.2d
1131, 1139 (Pa. Super. 1996) (holding that, convictions for rape and
aggravated indecent assault do not merge for sentencing purposes when each
crime is predicated on separate and distinct factual findings).8
____________________________________________
8 In his brief Appellant asserts that under the “evidentiary approach” for
determining whether a particular offense is a lesser-included offense, his
conviction of aggravated indecent assault of a child is a lesser-included offense
of rape of a child. Appellant’s Brief at 20. Appellant explains that under the
evidentiary approach, the “lesser offense may have elements distinct from the
greater offense and still be considered a lesser-included offense, as long as
the evidence presented at trial to prove the greater offense actually
establishes the elements of the lesser offense.” Id., relying on
Commonwealth v. Sims, 919 A.2d 931 (Pa. 2007). We find Appellant’s
argument to be of no avail and his reliance on Sims, supra, to be misplaced.
As a preliminary matter, Sims predates Baldwin and its confirmation that
Section 9765 governs the analysis of whether the merger of sentences must
be ordered. Moreover, in Sims, our Supreme Court addressed whether a
defendant could be convicted of a lesser-included offense when he had only
been charged with the greater offense. Sims, 919 A.2d at 933. The Sims
Court recognized that in determining whether two offenses merged for
purposes of sentencing, “courts should use the statutory elements approach
but with an eye to the specific allegations levied in the case.” Id. at 939
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In his second issue, Appellant challenges the discretionary aspects of
his sentence, arguing that the trial court abused its discretion when it imposed
a manifestly excessive sentence. Appellant’s Brief at 7.
It is well-settled that “the right to appeal [the] discretionary
aspect[s] of [a] sentence is not absolute.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where
an appellant challenges the discretionary aspects of a sentence,
we should regard his[, or her,] appeal as a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162
(Pa. Super. 2007). As we stated in Commonwealth v. Moury,
992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his[,
or her,] sentence must invoke this Court's jurisdiction by
satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant [] 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 [the]
appellant's brief has a fatal defect, [see] Pa.R.A.P. 2119(f);
and (4) whether there is a substantial question that the
____________________________________________
(citation and original quotation marks omitted). The Sims Court explained,
however, that the statutory elements approach was broader than necessary
to determine whether a defendant could be convicted of a lesser-included
offense when charged with a greater offense. Id. Instead, the Sims Court
held that the evidentiary approach was appropriate to determine whether a
defendant could be convicted of a lesser-included offense when charged with
a greater offense. Id.To the extent Appellant invites this Court to adopt the “evidentiary approach”
in determining whether offenses merge for sentencing purposes, we decline
Appellant’s invitation. Rather, our analysis is controlled by the plain language
of Section 9765 of the Sentencing Code which sets forth the use of the
statutory elements approach with an eye to the specific allegations levied
against a defendant to determine if the offenses were part of a single criminal
act.
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sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
[Moury, 992 A.2d] at 170. We evaluate on a case-by-case basis
whether a particular issue constitutes a substantial question about
the appropriateness of sentence. Commonwealth v. Kenner,
784 A.2d 808, 811 (Pa. Super. 2001).
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted). If an appellant fails to challenge the discretionary aspects
of a sentence either by presenting a claim to the trial court at the time of
sentencing or in a post-sentence motion, then the appellant’s challenge is
waived. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012)
(en banc) (citation omitted), appeal denied, 75 A.3d 1281 (Pa. 2013). A
substantial question exists when an appellant presents a colorable argument
that the sentence imposed is either (1) inconsistent with a specific provision
of the Sentencing Code or (2) is “contrary to the fundamental norms which
underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d
581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).
Here, the record reflects that Appellant filed a timely notice of appeal
and properly preserved a challenge to the discretionary aspects of his
sentence in a post-sentence motion requesting a reduction of sentence on the
ground that his sentence was excessive and repetitious. Post-Sentence
Motion, 9/14/22, at ¶4. Appellant also included a Rule 2119(f) statement in
his brief. Appellant’s Brief at 8. In his Rule 2119(f) statement, Appellant
argues that the trial court imposed a manifestly excessive sentence when it
ordered that the majority of the individual sentences were set to run
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consecutively. Id. Appellant asserts that the consecutive nature of his
individual sentences was “inappropriate and contrary to the fundamental
norms underlying the Sentencing Code” based upon the trial court’s
consideration of “[t]he history and characteristics of Appellant as set forth in
the pre[-]sentence [investigation] report[,] the [trial] court’s observations of
Appellant during trial and sentencing[,] the [trial] court’s findings upon which
the sentence was based[,] and the sentencing guidelines.” Id. (extraneous
capitalization and original quotation marks omitted, paragraph formatting
modified). In so arguing, we find that Appellant failed to raise a substantial
question.
It is well-established that “Pennsylvania law affords the [trial] court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.”
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013); see also 42 Pa.C.S.A. § 9721(a) (stating
that, a trial court may order sentences to run consecutively or concurrently).
“Any challenge to the exercise of this discretion ordinarily does not raise a
substantial question.” Austin, 66 A.3d at 808 (original quotation marks
omitted), citing Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.
2011). As this Court has long-held, an appellant is not entitled to a “‘volume
discount’ for his crimes by having all sentences run concurrently.”
Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). “[T]he
imposition of consecutive, rather than concurrent, sentences may raise a
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substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Lamonda, 52 A.3d at 372. The “key to
resolving the preliminary substantial question inquiry is whether the decision
to sentence consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal conduct at issue
in the case.” Austin, 66 A.3d at 808 (citation omitted).
In the case sub judice, a jury convicted Appellant of the aforementioned
sexual offenses based upon his sexual abuse of S.S. and the subjugation of
her sister, D.W., at times, to witness and be present for episodes of sexual
abuse. These sexual offenses began when the child-victims were around 8
years of age (S.S.) and 6 or 7 years of age (D.W.), and continued for several
years until S.S. was 14 years of age. The sexual offenses began with
inappropriate touching and kissing and escalated over the years to acts of
vaginal, oral, and anal intercourse, with multiple separate instances of sexual
assault. Appellant does not challenge his sentence on the basis that the trial
court failed to consider the factors outlined in 42 Pa.C.S.A. § 9721(b), failed
to set forth its explanation for its sentence on the record, or sentenced
Appellant outside of the sentencing guidelines. Rather, in his Rule 2119(f)
statement, Appellant concedes that the trial court, in sentencing Appellant,
set forth its reasons for imposing the individual sentences on the record,
considered the Section 9721(b) factors, including Appellant’s history and
characteristics, and was aided in fashioning its sentence by consideration of a
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pre-sentence investigation report. Appellant’s assertion that his overall
sentence is excessive is merely a request by Appellant for a “volume discount”
on the number of heinous sexual offenses he committed against two
child-victims while in a position of trust as their step-father. Thus, in light of
the criminal conduct at issue, and the length of incarceration, we conclude
that the trial court’s imposition of consecutive individual sentences in this case
does not raise a substantial question. See Prisk, 13 A.3d at 533 (concluding
that, an excessive sentence claim, which was based upon the imposition of
consecutive individual sentences resulting in an aggregate sentence of 633 to
1500 years’ incarceration, did not raise a substantial question where the
appellant was convicted of committing 314 sexual offenses against his
stepdaughter over a 6-year period).9
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9 Assuming arguendo that Appellant’s claim raised a substantial question, his
challenge to the imposition of consecutive sentences as excessive would still
merit no relief. In his brief, Appellant argues,
The sentencing guidelines should offer some guidance, any
guidance, as to whether or not to make certain [sentences run]
consecutive[ly] or concurrent[ly]. The guidelines are “[w]hatever
the judge wants” when it comes to consecutive and concurrent
sentences which is no guidance at all. Considering that this is the
difference, in this case, of being eligible for parole in 10 years or
essentially receiving a life sentence, the guidelines are hopelessly
deficient.
Appellant’s Brief at 23.
Appellant’s argument is an invitation for this Court to step into the shoes of
the trial court and re-weigh, inter alia, the circumstances of the case and the
Section 9721(b) sentencing factors, including the history and characteristics
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Appellant’s third issue challenges the constitutionality of Subchapter H
of SORNA. Appellant’s Brief at 24-25. In particular, Appellant alleges that
SORNA improperly “employs an irrebuttable presumption that is not
universally applicable,” namely that “[s]exual offenders pose a high risk of
committing additional sexual offenses[.]” Id. at 25; see also 42 Pa.C.S.A.
§ 9799.11(a)(5) (setting forth the legislative findings in support of SORNA).
Appellant further argues that SORNA’s punitive nature offends Apprendi v.
New Jersey, 530 U.S. 466 (2000)10 and Alleyne v. United States, 570 U.S.
99 (2013),11 results in a criminal sentence in excess of the statutory
maximums, violates the federal and state constitutional proscriptions against
cruel and unusual punishment, and breaches the doctrine of separation of
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of Appellant, to arrive at a different sentence and seemingly afford Appellant
a volume discount for this crimes. We decline Appellant’s invitation.
As discussed supra, Pennsylvania law affords the trial court discretion to
impose concurrent or consecutive sentences. See Austin, 66 A.3d at 808;
see also 42 Pa.C.S.A. § 9721(a). This Court can only vacate a sentence and
remand for resentencing upon finding one of the errors enumerated in 42
Pa.C.S.A. § 9781(c). We discern no Section 9871(c) error in the case sub
judice. Therefore, Appellant is not entitled to relief.
10 In Apprendi, the Supreme Court of the United States held that, “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
11 In Alleyne, the Supreme Court of the United States similarly held that,
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that
must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 570 U.S. at 103 (citation omitted).
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powers. Appellant’s Brief at 25. Appellant raises these challenges to the
constitutionality of SORNA – Subchapter H for the first time on appeal.12 See
Appellant’s Rule 1925(b) Statement, 10/11/22; see also Appellant’s Brief at
24-25; Appellant’s Post-Sentence Motion, 9/14/22.
Generally, an issue that is raised for the first time on appeal is waived,
and this Court cannot review the issue on appeal. See Pa.R.A.P. 302(a)
(stating, as a general rule, “[i]ssues not raised in the trial court are waived
and cannot be raised for the first time on appeal”). Recently, our Supreme
Court held that constitutional challenges to SORNA – Subchapter H implicate
the legality of a sentence and cannot be waived on the basis that such claims
were raised for the first time on appeal. Thorne, 276 A.3d at 1198. Because
Appellant’s constitutional challenges were presented for the first time on
appeal, however, there is no factual record before us. Therefore, in
consonance with Thorne, supra, we remand this case for further
development of the record related to Appellant’s challenge to the
constitutionality of SORNA – Subchapter H.
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12 In support of his argument, Appellant relies upon, and cites to, a decision
by the Court of Common Pleas of Chester County, in Commonwealth v.
Torsilieri, that, upon remand from our Supreme Court, found
SORNA – Subchapter H unconstitutional for the reasons Appellant asserts in
the case sub judice. See Appellant’s Brief at 25, citing Commonwealth v.
Torsilieri, No. 15-CR-0001570-2016 (C.P. Chester Co., filed Aug. 23, 2022)
(unpublished trial court opinion); see also Commonwealth v. Torsilieri,
232 A.3d 567 (Pa. 2020) (remanding the case for further development of
appellant’s constitutional challenges to SORNA – Subchapter H). The Court of
Common Pleas of Chester County decision is currently pending before our
Supreme Court at Supreme Court docket number 97 MAP 2022.
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Convictions affirmed. Judgment of sentence vacated, in part, insofar as
Appellant is required to comply with the requirements of SORNA – Subchapter
H. Case remanded for further development of Appellant’s challenge to the
constitutionality of SORNA – Subchapter H. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/25/2023
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