Com. v. Frye, D.

Opinion

J-S49014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DENNIS EDWARD FRYE,

Appellant No. 1965 EDA 2018

Appeal from the Judgment of Sentence Entered November 20, 2017 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003007-2017

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 05, 2019

Appellant, Dennis Edward Frye, appeals from the judgment of sentence

of 7½ to 20 years’ incarceration, imposed after he pled guilty to solicitation to

commit statutory sexual assault, unlawful contact with a minor, criminal use

of a communication facility, and indecent assault of a person less than 16

years of age. Appellant solely challenges the discretionary aspects of his

sentence. We affirm.

The trial court set forth the facts of Appellant’s case, as summarized by

the Commonwealth at his guilty plea proceeding, as follows: On January 25, 2017, Officer Andrew Herman of the Middletown Township Police Department was dispatched to 18 Cameo Road in Middletown Township, Bucks County for the report of a domestic disturbance.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S49014-19

Dawn Ross relayed that her then 51-year old step[-]brother, [Appellant], date of birth 11/25/1965, had been inappropriately touching her 14-year old daughter, N.R., date of birth 11/12/2002, while he was living with them.

Dawn advised that [Appellant] had been living with them for a long period of time. Dawn’s husband, Barry Ross, had been sent to a state correctional facility for 21[½] to 47 years for raping their daughter, N.R., almost daily from the ages of six to 12 years old.

After this occurred, [Appellant] volunteered to move in and help Dawn out with her five children. N.R. made Dawn aware that [Appellant] had been acting inappropriately towards her via text messages, sexual conversations and touching her private areas.

***

N.R. advised that [Appellant] frequently talked to her inappropriately, stating that he was in love with her and he wants to run away with her, and that he wants to marry her.

He often asked her about the details of her abuse at the hands of her father and would get jealous or angry if she said that she missed him. N.R. further stated that [Appellant] had touched her on her breasts, upper thighs near her vagina and on her buttocks several times. This would occur almost every day [after] [Appellant] moved in to her home in Bucks County.

[Appellant] frequently bought N.R. gifts, including a cell phone. Since at least October of 2016, [Appellant] had been texting her cell phone from his phone with phone number (215) 436-2966. [Appellant] told N.R. to erase these messages so nobody could see them.

The following are some of the many inappropriate messages he would send to N.R.:

When are you going to kiss me? Why do you make me crazy? My deductible is $250. The only way you’re getting this phone is to become my baby. I know who’s not banging up there. Us. I’m still in love with you. Soon you’ll get a boy and I’ll be history.

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I’ll be home later and you better behave or you’re going to get a spanking. Will you be my baby? Mmm, this cookie is almost as delicious as you. I mean your sweet chocolate ass. I don’t like sharing your love with anyone else. I can’t live without you. Marry me. I might terrorize your ass later. LOL. Come lay with me. I got your pussy rubbing all over me. I can’t just turn off my feelings for you. Wait until you hear my dream about you and me. It was freaky. During this period of abuse, N.R. began cutting her body. In response to that, [Appellant] would be texting her things such as:

Now I’m going to have to check your whole body. LOL. Some teens get random drug tested. You’re going to get random strip searched.

[Appellant] would also call N.R. names such as, [“]Bitch[”] and [“]Skank[”] via text.

N.R. described a time when [Appellant] came into her room and told her that he had a dream about her being aggressive with him and having sex with him in the shower. N.R. detailed how [Appellant] would say and text her uncomfortable things and then come into her room and rub her buttocks or breasts.

When she would push him away or say no, he would get angry and threaten to turn off her phone. [Appellant] has repeatedly told N.R. that he wants to have sex with her. She has repeatedly told him no.

Dawn Ross confronted [Appellant] and he admitted to attempting to show N.R. what good touch/bad touch was. On February 9, 2017, Affiants Torrente and Strother met with [Appellant]. During this meeting, Detective Torrente called the telephone number from which N.R. was receiving the text messages. When she did so, the cellular telephone located in [Appellant’s] right front pant[] pocket rang. [Appellant] advised that this was the phone he was using to communicate with N.R.

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Detective Strother looked at the phone and noticed that [Appellant] had deleted all of the text messages between himself and N.R. A forensic download of that phone recovered those deleted messages.

[Appellant] admitted in the later interview he was sexually attracted to N.R., and that he sent her those sexual messages.

Trial Court Opinion (TCO), 3/29/19, at 2-4.

Appellant pled guilty to the above-stated offenses on November 20,

2017. That same day, he was sentenced to aggravated-range terms of

incarceration of 33 to 96 months for both his solicitation and unlawful contact

convictions. He also received an aggravated-range sentence of 18 to 36

months’ incarceration for his conviction of criminal use of a communication

facility. For his indecent assault offense, Appellant was sentenced to a

mitigated-range term of 6 to 12 months’ incarceration. These sentences were

imposed to run consecutively, resulting in an aggregate term of 7½ to 20

years’ imprisonment.

Appellant filed a timely post-sentence motion for reconsideration of his

sentence, which was ultimately denied following a hearing. He then filed a

timely notice of appeal, and he complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) statement. The trial court filed its Rule 1925(a) opinion on

March 29, 2019. Herein, Appellant states one issue for our review: “Did the

lower court err in imposing a sentence of total confinement of not less than

7½ to not more than 20 years?” Appellant’s Brief at 4.

Appellant’s issue implicates the discretionary aspects of his sentence. Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v.

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Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the discretionary aspects of his 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 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 [the] 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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question exists “only 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.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Appellant has satisfied the first three prongs of the test to obtain review

of his discretionary-aspects-of-sentence claim. In his Rule 2119(f) statement,

Appellant contends that he has presented a substantial question for our review

because his sentence is manifestly excessive based on the criminal conduct

that occurred, the court failed to take into account his rehabilitative needs,

and the court abused its discretion by imposing consecutive sentences,

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resulting in an unreasonable aggregate term of incarceration. See Appellant’s

Brief at 10-12. We conclude that Appellant has raised substantial questions

for our review. See Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.

Super. 2015) (concluding that Swope set forth a substantial question by

contending that his consecutive sentences were unduly excessive because the

court failed to consider his rehabilitative needs and other mitigating factors).

Our standard of review of the merits of a challenge to the discretionary

aspects of a sentence is well-settled:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

When imposing a sentence, the sentencing court must consider the factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant…. Furthermore, [a] trial court judge has wide discretion in sentencing and can, on the appropriate record and for the appropriate reasons, consider any legal factor in imposing a sentence in the aggravated range. The sentencing court, however, must also consider the sentencing guidelines.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(internal citations and quotation marks omitted).

In this case, we have reviewed the arguments presented by Appellant,

the Commonwealth’s response, the certified record, and the applicable case

law. We have also considered the well-reasoned decision of the Honorable

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Raymond F. McHugh of the Court of Common Pleas of Bucks County. We

conclude that Judge McHugh thoroughly addresses the arguments presented

by Appellant, and he correctly deems them meritless. See TCO at 6-12.

Therefore, we adopt that portion of Judge McHugh’s decision as our own,1 and

affirm Appellant’s judgment of sentence for the reasons set forth therein.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/5/19

1 We note that Judge McHugh addresses a claim involving the merger of Appellant’s sentences for solicitation and unlawful contact, which Appellant has abandoned on appeal. See TCO at 5-6. Thus, we do not adopt, or express any opinion on, that portion of Judge McHugh’s analysis.

-7- .s:�-J. .Ad.: Circulated 11/12/2019 08:47 AM

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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 3 ·cP·J Ii CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0003007-2017 v.

DENNIS EDWARD FRYE, JR.

Dennis Edward Frye, Jr. (hereinafter "Appellant") appeals to the Superior Court of

'Pennsylvania from the denial of post-sentence motions on February 2, 2018. We file this Opinion

pursuant to Pennsylvania Rules of Appellate Procedure Rule 1925(a).

I. , PROCEDURAL ffiSTORY

Appellant pled guilty to the following crimes: Criminal Solicitation to Statutory Sexual

Assault, Unlawful Contact with Minor-Sexual Offenses, Criminal Use of Communication Facility,

and Indecent Assault of a Person Less than 16 Years of Age, The Commonwealth was granted

leave to nolle prosse the remaining charges. 1 At the guilty plea and sentencing hearing on

November 20, 2017) Appellant was sentenced as follows: ,-------·-·-- - ·---i·-------·-·-·-·--·-r;- ---------·----·· ·-·-··--·--·-··-·-··1 \ Crime i Gu.id�ines I Scntenc� \ rs,)licittition-·····- to --StatutorytT°s-24 months·-----·-··-- j° ].3-96 months··-··-·-·-··-···--1 L Sexual Assault l±l· 9 months ---·--·-· _ -\--------·-··-·--·-·····-------·-·------, Unlawful Contact with Minor-118-24 months j 33-96 months I · 2::��a?�::s�:ommunicntionst:�� ! :::::: ---�------A\ 18-36 months ----··---- ----i I +/-.. 3 mouths I I J 6-12. l Facility Q�d�c�;: �����Person LcssJ ��--;4n�� 1���� months

I The Crimin'1l lnlormatiun contained the following counts: Cm1111 I: Statutnry Sexual Ass�uill··· t l Years Oldvr- Criminal Sollcitatlou; 18 Pa, C.S.I\. § 902(a) Counz 2: Unlawful Contact with Min

less than seven and one half (7 �) nor more than twenty (20) years. Appellant was given credit

for time served from his date of incarceration in this case. As a condition of parole, Appellant was

ordered to have no contact with the victim or any unsupervised contact with a person under the

age of eighteen ( 18) years. Appellant was also ordered to attend and successfully complete a

sexual offender program administered by the Pennsylvania Department of Corrections prior to

parole.

Appellant filed timely post sentence motions, which were denied after a hearing on

February 2, 2018.2 Appellant now appeals to the Superior Court.

II. FACTUAL BACKGROUND

The facts of this case were summarized by the Assistant District Attorney at the guilty plea

and sentencing hearing, as follows:"

On January 25) 2017. Officer Andrew Herman-of the Middletown Township Police Department was dispatched to 18 Cameo Road in Middletown Township. Bucks County for the report of a domestic disturbance.

Dawn Ross relayed that her then 5'1-year old stepbrother, the defendant Dennis Frye, date of birth 11/:4511965, had been Inappropriaiely touching her 14-year old daughter, N.R., date of birth 11112/2002, while he was llviug. with them.

Dawn advised that the defendant had been living with them for a long period of time. Dawn's husband, Barry Ross, had been sent to a state correctional facility for 21-and-a-htt.Lfto 47 years for raping their daughter, N.R., almost deily from the ages of six to l 2 years old.

After this occurred, the defendant volunteered to move in and help Dawn out with her five children. N.R. made Dawn aware that the defendant had been acting inappropriately towards her via text messages, sexual conversations and touching her private areas.

? A hearing 011 the post sentence motions was scheduled for December 29, 2017, but continued at the request of Appellant. See N. T 212/18. 3 N.T. 11120/17, pp. '23-2&.

2 Your affiants teamed the foHowing through Investigation and interviews: N.R. advised that the defendant frequently talked to her inappropriately, stating that he was in love with her and he wants to run aw.ay with her. and that he wants to marry her.

He often asked her about the details of .her abuse at the hands of her father and would get jealous or angry ifshe said that she missed him. N.R. further stated that the defendant had touched her on her breasts, upper thighs Qear her vagina and on her buttocks· several times. This would occur aimost .every day since the defendant moved in to her home in Bucks County.

The. defendant frequently bought N.R. gifts, including a cell phone. Since a.t least October of 20 J. 6, the defendant bad been tex.ting her cell phone from his phone with phone number (215) 436-2966. The defendant told N.R. to erase these messages so nobody could see them,

The following are some of the many inappropriate messages he would send to N.R.:

When are you going to kiss me? Why do you make me crazy? My deductible is $250. The only way you're getting this phoneis to become my baby. l know who's not banging up there. Us.' I'm still in .love with you. Soon you'll gel a aoy and I'll be history. I'll be home later.and you better behave oryou're going to get a spanking. Will you be llfY baby? Mmm, this cookie is almost as delicious as you. I mean your sweet chocolate ass. I don't like sharing your love with anyone else. I can�t live without you. Marry me. I might terrorize your ass later. LOL. Come lay with me. I got your pussy rubbing all over me. I can't just turn off my feelings for you. Wait until you hear my dream about you and me. It was freaky.

During this period of abuse, N.R. began cutting her body. In response to that, the defendant would be texting her things such as:

Now l'm going to have to check your whole body. LOL. Some teens get random drug tested. You're going to get random strip searched.

3 The defendant would also call N.R. names such as, quote, Bitch and Skank, via text.

N.R. described cl tlme when the defendant came into her room and told her tbnt he had a dream abont her being aggressive with him and having sex with him in the shower, N.R. detailed bow the defendant would say and text her uncomfortable things and then come into her room am'il rub her buttocks or breasts.

When she would push him away or say no, he would get angry and threaten to turn off her phone. '111c defendant has repeatedly told N.R. that he wants to have sex with her. She has repeatedly told him no.

Dawn Ross confronted the defendant and he admitted to attempting to show N .R. what good touch/bad touch was, Ou Febnta:ry 9. 2017. Affiants Torrente and Strother met with the defendant. During this tnecling. Detective Torrcnte called the telephone num bor from wbich N .R. was receiving the text messages. When she did so. the cellular telephone located in the d�.fendanL's right front pant's pocket rang. The defendant advised-tha; this was the phone he was using to communicate with N.R. .

Detective Strother looked at the phone and noticed that the defendant had deleted all of the text messages between himself. and },l".R. A forensic download of thnt phone recovered those deleted messages.

The defendant admitted in the later interview he �as sexually attracted to N.R., and that he sent her those sexual messages.

III. STATEMENT OF MATTER$ COMPLA1NED OF ON APPEAL

On March 12, 20181 Appellant filed his Concise Statement of Errors Complained of on

Appeal pursuant to Pennsylvania Rules of Appellate Procedure Rule 1925(b). Appellant raised

the following issues. verbatim:

1. The sentence was excessive considering Petitioner's remorse, guilty plea and need for treatment, 2. Sentencing Appellant consecutively raised the aggregate sentence to, what appears upon its face to be an excessive level considering Frye's background and criminal conduct at issue in this case, 42 Pa. C.S. 9781 (c)(2); Commonwealth.. v. Ma�trom@r.!1.W.. 2 AJd 581. 588 (Pa. Super. 2010). 3. The Court failed to take these factors into account along with Appellant's rchabilltative needs and sentenced only on the nature of the offenses.

4 4. Petitioner was. improperly sentenced consecutively on solicitation to commit statutory sexual assault and unlawful contact, as the offenses should have merged · for sentencing purposes. 5. Reliance on the Commonwealth's claim that the complainant was required to engage in treatment and attempted suicide as a result of Appellant's conduct was unsupported.

IV. DISCUSSION

/ Appellant complains of five alleged errors in this appeal. The question, whether two of his convictions merge for sentencing purposes, is the only issue regarding the legality of the sentence.

/ All other claims are challenges to the discretionary aspects of sentencing and interrelated.

Therefore, we shall begin with the question of merger and the legality of the sentence.

Appellant claims his convictions for Solicitation to Statutory Sexual Assault and Unlawful

Contact with Minor - Sexual Offenses merge for sentencing purposes. Therefore, according to

Appellant, our decision to nm sentences on those convictions consecutive to each other is improper

and an error of law. This issue was raised in post-sentence motions and argued before us. In his

argument, Appellant conceded his position was contrary to prevailing Pennsylvania case law,

particularly ComI!lQnW� v. eyall8, 90 l A.2d 528 (Pa. Super. Ct. 2006). Nonetheless, Appellant

urged us to "adopt more of a common sense approach and look at the nature of the evil to be

covered by the sentence."

The controlling law is set forth in 42 Pa.C.S.A § 9765:

N,> crimes shall merge for sentencing purposes unless the crimes arise from a single criminal G.1Jr and a11 of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense,

Both convictions at issue involve one count of criminal conduct by Appellant against the

victim, from May 1, 2016 until January 2 7, 2017. Each conviction is supported by hundreds of

5 distinct criminal acts committed over an almost nine month period of time. Each of these offenses

could stand on their own for completely different distinct criminal acts. As stated in

Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. Ct. 2012) (quotations and internal

citations omitted):

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." Rather, the issue is whether "actor commits multiple criminal acts beyond that which is necessary to establish the bare elements ef the additional crime: then the actor wilt be guilty of multiple crimes which do not merge for sentencing purposes."

Clearly, in this case, Appellant committed "multiple criminal acts beyond that which is

necessary to establish the bare elements of the additional crime." Accordingly, Appellant's

convictions do not merge for sentencing purposes.

Additionally, in this case, all of the statutory elements of one offense are not included in

the statutory elements of the other offenses. More specifically, Criminal Solicitation to Commit

Statutory Assault requires a specific type of act ( e.g., command, encouragement, or request) not

required by the crime of Unlawful Contact. In other words, there can be Unlawful Contact that is

not a Criminal Solicitation to Commit Sexual Assault. Similarly, there can be a Criminal

Solicitation to Commit Sexual Assault that is not an Unlawful Contact. Accordingly, Appellant's

Appellant also challenges the discretionary aspects of his sentences. Such an appeal is

considered a petition for permission to appeal, petition for permission to appeal, Qfiltlm(mw��allh

Y..,. B_\lm�h, 91 A.3d 1247, l265 (Pa. Super. Ct. 2014), awcq_l.deuie_g, 628 Pa. 627 requiring

Appellant to raise a substantial question for appellate review. �ommonwealth y, Balcer, 72 A.3d

6 652 (Pn. Super. Ct. 2013), � denred, 624 Pa. 679 (Pa. 2014). We respectfully submit a

substantial question for appellate review has not been raised in this case.

Appellant claims our sentence was excessive considering his remorse, guilty plea and need

for treatment. We believe Appellant showed little or no remorse for his actions in this case. This

is obvious in his statement at sentencing:

The Court: "Mr. Frye, my understanding is you wish to make a statement?" Defendant: .. Yeah, thatrm sorry .Nicole. I never meant for this to get out of hand, and I just want to put this behind me and move forward with my life. And that I apologize. And she's net -she\ ll 'never know bow much." The Court: "All right. Anything else you wish to say?" · Defendant: "No. Just that, show some mercy."

At the time of this statement, Appellant appeared indifferent and disinterested. His

demeanor was cavalier and defiant. We commented on this hearing on post sentence rnotions:4

The Court: ... I will tell you that one of the reasons I granted the Motion for Rcconsideratieu was what particularly struck me during the sentencing in this matter was your-client's complete lack of remorse. And I always give people credit for acceptance pf responsibility when they enter a plea of guilty and accept responslbi l i ty, Your client struck me, however, by his appearance, by bis obvious lack of remorse, that he thought he was being unjustly prosecuted in this case, And l gave him the benefit that he may have not represented himself well because o[ the pressure or stress of the situation and upon reflection may wish to present additional evidence in-that regard. Aud iliat is why I granted the Motion for Reconsidemtion, to permit him I.hat opportunity, because us Y.suttc� and as the Common wealth writes in their response, this erlme was heinous. · l mean, re-victimizing a person who you know is a victim, but who you put yoursel fin a position to assist that person and then engaging in the exact conduct thal you fire supposed to be helping them overcome was -in my mind, certainly justified the sentence.

As stated above, we considered and gave Appellant credit for his plea of guilty and

acceptance of responsibility. It was obvious Appellant felt no remorse or penitence. He felt sorry

�NT. 2/2/2018, p. ii, 9

7 only for himself. He wanted to put this behind him and move 011 with his life. His only regret was

getting caught.

Appellant's attorney described him as a veteran of the National Guard who graduated from

high school and a trade school. He was a fifty-two (52) year old father of three with a long history

of stable employment. He had been in Bucks County Prison for almost nine (9) months where he

worked as a babysitter and had no misconducts. 5 Appellant chose not to present testimony or

evidence of any kind acknowledging his need for treatment, He did not consider or participate in

the many programs or other treatment options at the Bucks County Prison during his lengthy pre-

trial detention. At best, Appellant did not know why he committed the crimes at issue. At worst,

he did not care. Accordingly, when we considered his rehabilitative needs, we focused on his

obvious need for a sex offender assessment and treatment Our experience is the best programs

for sex offender assessment and treatment are within the state correctional system. Accordingly,

contrary to Appellant's claim, we did consider his lack of remorse and unspecified need for

treatment in the determination of his sentence. As with all offenders, we gave him credit for his

decision to accept responsibility and enter a plea of guilty.

Appellant next claims our decision to impose consecutive sentences raised the aggregate

sentence to an excessive level considering his background and the criminal conduct at issue in this

case. He cites �&mill.Q.!lli.�1h v. MJ\Stromnrino, 2 A.3d 581 (Pa. Super. Ct. 2010) in support of

this claim. He further claims we failed to consider factors set forth in Masll't.lmari,nq along with

his rehabilitative needs and sentenced solely on the nature of the offense. Mastromarino decided

the key to resolving the substantial question inquiry in a challenge to the discretionary aspects of

a sentence is whether the decision to sentence consecutively raises the aggregate sentence to, what

s N.1'. l l/20/2017, r- 33-35 8 appears on its face to be, an excessive level in light of the criminal conduct at issue in the case. In

M.@strQ1llil.rlllQ, the Court concluded an aggregate sentence of not less than twenty-five (25) nor

more than fifty-eight (58) years in prison is neither grossly disparate to the defendant's conduct

nor does it "viscerally appear as patently 'unreasonable'." The charges underlying the aforesaid

sentence were related to the unlawful sale of body parts from human corpses.

In this regard, Appellant asserts his criminal conduct at issue somehow mitigates in his

I favor. Nothing could be further from the truth. Appellant took advantage of a bad situation and

made it worse. He manipulated his way into a position pf authority and trust within his stepsister's

family. He used this position for his personal benefit and the detriment of all others. He sexually

assaulted his 13 year old niece regularly and repeatedly for over eight (8) months. He knew she

was the victim of previous-sexual abuse by her father. He used this knowledge to manipulate and

control her. He regularly professed his romantic love for her. He told her of his sexual fantasies

involving her. He bought her a cell phone and threatent regularly to take it away if she didn't do

what he wanted. He called her disgusting names. When his victim finally cried out for help by

cutting herself and attempting suicide, he blasted her mother for failing her. Appellant did not

reduce or diminish his constant requests for sex during his victim' s treatment for physical or mental

health issues. He never· admitted his conduct to anyone. He. obstructed true help for his victim at

every opportunity. Appellant lied about everything. He had no remorse for anything.

We imposed an aggregate sentence of not less than seven and one half (7 Y2) nor more than

fifteen ( 15) years in a state correctional institution. Our sentence was within the statutory limits.

It was also within the recommended ranges of the sentencing guidelines on three (3) of the four

(4) counts comprising the aggregate sentence. In the fourth count, we sentenced below the

mi ligated range of recommended sentences. Appellant ignores the fact he was convicted of two

9 separate felonies of the first degree. The sentencing guidelines based on these convictions are

within Level 4. This level targets vr::,ry serious offenders and those with numerous prior

convictions. "The primary purposes of the sentencing options at this level are punishment and

incapacitation."6 The Sentencing Code clearly states a sentence may be imposed either

consecutively or concurrently/ Each of our individual sentences represented a sanction for

multiple distinct criminal acts that occurred regularly and repeatedly over an eight month period.

The imposition of these sentences consecutive to each other is not a mistake. Appellant is not

entitled to a volume discount for crimes. Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. Ct.

1995).

Ultimately, Appellant is seeking credit for his background even though he has a prior

record score offive8 because it could be worse. Similarly, he wants credit for his criminal conduct

because it could be worse. Somehow he believes he should receive positive consideration for his

long term, persistent solicitation of a thirteen year old for sex that had devastating consequences

for all concerned because it could be worse.

Appellant's aggregate sentence in this case is consistent with the stated purpose of

sentencing guidelines and therefore reasonable. Our sentence is not grossly disparate to

Appellant's underlying criminal conduct nor does it viscerally appear as patently unreasonable.

Appellant also alleges we improperly relied on the Commonwealth's unsupported

declarations the victim was required to engage in treatment and attempted suicide as a result of his

conduct He cites no corroboration or other support for this allegation. Nonetheless, his claim is

incorrect. Appellant was appropriately sentenced pursuant to the factors and considerations in the

---------- 6 204 Pa. Code § 303 1.1 (b )( 4) 7 s 42 P�.C.S.A. 9711(:t) s Reprnsennng connectlnns for seven (7) distinct criminal acts over the past twenty-five (25) years.

10 Sentencing Code. More speclficelty, as already discussed in this Opinion, we considered: the

sentencing guidelines; Appellant's conduct, including his knowledge and relationship with the

victim, a thirteen (13) year old minor; Appellant's criminal history; Appellant's compete lack of

remorse; and Appellant's need for treatment. See Q.HJh.'nOnwealth. v. Wajj_s, 592 Pa. 557 (2007).

We also considered the impact of this crime on the life of the victim:

In this case I need to consider - it's one of the guidelincs« the gravity of the offense as it relates to the impact on the life of the victim, and I don't know if I can imagine a case, a situation, that would impact the life of the victim, more•.or more negatively, than the conduct of this defendant in this case.

This is a victim of a prior violent sexual assault over a number of years, and the defendant knew that. And the defendant volunteered to help in the situation, volunteered to help his stepsister's family recover from a devastating; devastating impact of criminal conduct. And using that ruse to gain entry into the family. the defendant then just engaged in conduct that seems. almost incomprehensible. Victimizing a victim? And continuing to commit that conduct for months on end, continuing to commit that conduct after the victim has been hospitalized three times, being the only other person that knows what's going on, when a victim is cutting themselves and attempting suicide. and to then blame that conduct on another person who is a family member. It shakes your faith in human beings. There's absolutely no grounds that could possibly excuse or justify this conduct, The victim did nothing to induce or facilitate it.

Pursuant to the Sentencing Code,9 after having regard to the nature and circumstances of

the crime and the history, character. and condition of Appellant, we decided total confinement in

a state correctional facility for a significant period of time was necessary. 'This decision was made

because ( 1) there is undue risk that during a period of probation or partial confinement the

Appellant will commit another crime; (2) Appellant is in need of correctional treatment that can

be provided most effectively by his commitment to a state correctional institution; and (3) a lesser

sentence will depreciate the seriousness of the crime of the Appellant.

9 42 Pa.C.S.A. § 9725

ll V. CONCLUSION

WHEREFORE, for the foregoing reasons, it is respectfully submitted this Honorable Court DENY and DISMISS the relief requested by Appellant.

BY THE COURT:

DATE: 3 /2 9 /z..ot f ·---· · j'--·-f---- · --- . M�QPV\J\:t4f � �-- ·--·--�----R�--+-. OND F. McffiJOH, J. f

N.B. it is your responsibility to notify all :!'1ff;1 {�sted parties of the above action.