J-A13023-23
2023 PA Super 187
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUIS GABRIEL TORRES JR. : : Appellant : No. 962 MDA 2022
Appeal from the Judgment of Sentence Entered April 18, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005092-2018
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
CONCURRING OPINION BY BOWES, J.: FILED: SEPTEMBER 27, 2023
I agree with my esteemed colleagues that Appellant’s judgment of
sentence should be affirmed. Further, I fully join the Majority’s resolution of
Appellant’s final issue challenging the discretionary aspects of his sentence.
See Majority Opinion at 10-13. I write separately because I would resolve
Appellant’s other two claims differently.
Appellant first argues that the trial court should have granted his motion
to dismiss because his due process rights under the U.S. and Pennsylvania
constitutions were violated when the Commonwealth’s filed criminal charges
against him nine years after it received complaints about acts that he
committed at ages thirteen through fifteen. As its basis for rejecting it, the
Majority cites Commonwealth v. Armolt, 294 A.3d 364 (Pa. 2023), in which
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* Former Justice specially assigned to the Superior Court. J-A13023-23
our High Court held that the adult criminal court had jurisdiction to try,
convict, and sentence forty-two-year-old Armolt for crimes that he committed
when he was a juvenile. See Majority Opinion at 5-6. However, in reaching
that decision, the Armolt Court deemed waived for lack of development, and
therefore did not resolve, Armolt’s claims that subjecting him to criminal
punishment for crimes committed while he was a juvenile violated
constitutional guarantees of due process, equal protection, and freedom from
cruel and unusual punishment. See Armolt, supra at 379-80.
Unlike Armolt, Appellant does not contend that the trial court lacked
jurisdiction to try him as an adult for offenses he committed as a juvenile.
Indeed, he expressly concedes that “the adult criminal justice system had
jurisdiction over [him].” Appellant’s brief at 34-35. Rather, Appellant raises
a constitutional challenge to his belated prosecution that Armolt had waived.
Specifically, Appellant argues that the delay in prosecuting him violated his
due process rights because he suffered actual prejudice from the delay and
the Commonwealth proffered no reasonable basis for it. See Appellant’s brief
at 29-34 (citing, inter alia, Commonwealth v. Wright, 865 A.2d 894, 901
(Pa.Super. 2004) (“[P]re-arrest delay constitutes a due process violation
where there has occurred actual prejudice to the defendant and there existed
no proper reasons for postponing the defendant’s arrest.” (cleaned up)).
Accordingly, I cannot agree with my colleagues that the Armolt decision
informs our resolution of Appellant’s due process claim. Instead, I would
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affirm the denial of Appellant’s motion to dismiss based upon the reasoning of
the trial court. See Trial Court Opinion, 7/28/22, at 7 (explaining that, even
if Appellant were able to establish actual prejudice, there was nothing
improper about the delay, as the singe victim who made a report in 2009
failed to stand by her allegations during a subsequent forensic interview, and
charges were promptly filed in 2018 when Appellant’s siblings next alleged
abuse and substantiated the claims). Accord Commonwealth v. Monaco,
869 A.2d 1026 (Pa.Super. 2005) (holding there was no merit to due process
claim raised in connection with adult prosecution for offenses committed by
juvenile where there was no improper motivation for the delay);1
1 This Court in Commonwealth v. Monaco, 869 A.2d 1026 (Pa.Super. 2005), analyzed the due process claim without expressly applying the framework for pre-arrest delay discussed in Commonwealth v. Snyder, 713 A.2d 596 (Pa. 1998), and Commonwealth v. Wright, 865 A.2d 894 (Pa.Super. 2004), namely determining whether there was actual prejudice to the defendant and no proper reasons for postponing the arrest. The Armolt Court, while not deciding the due process claim, did discuss Monaco and its “‘bad faith’ exception” to the rule that adults can be tried for juvenile conduct. Commonwealth v. Armolt, 294 A.3d 364, 374 n.13 (Pa. 2023). However, Armolt neither (1) examined the due process precedent such as Snyder and Wright that generally applicable to claims of pre-arrest delay in connection with its due-process assessment, nor (2) decided the continued viability of Monaco’s “improper motive” inquiry divorced from that precedent. Id. (“[W]e express no opinion about [Monaco’s] viability; we merely conclude appellant failed to show the Commonwealth acted in bad faith here, so the plain language of the statute controls.”).
Justice Wecht in his concurrence, joined by Justice Donohue, considered at length the possible legal basis for Monaco’s exception, observing that “such a rule serves a vital interest,” and ”should be examined in an appropriate case.” Id. at 386 (Wecht, J. concurring). I do not think this is that case. (Footnote Continued Next Page)
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Commonwealth v. Anderson, 630 A.2d 47 (Pa.Super. 1993) (reversing
dismissal of charges against adult for offenses committed as a child where the
appellant was responsible for the delay due to his “deliberate avoidance of the
justice system”).2
My disagreement with the Majority’s resolution of Appellant’s second
issue is in a similar vein. There, Appellant argues that (1) a ten-year
mandatory minimum sentence, and (2) an aggregate term of nineteen to forty
years of incarceration, imposed for the repeated sexual abuse of his much-
younger siblings while he was a young teenager, constitutes cruel and unusual
punishment. See Appellant’s brief at 35-58.
Nonetheless, as the author of Monaco, I submit that the same due process guarantees that require dismissal of prosecutions based upon pre-arrest delay inform the Monaco exception. As there is no indication of improper motives for delaying Appellant’s prosecution in this case, I need not expound upon whether being subjected to criminal sentencing rather than juvenile disposition can itself amount to actual prejudice under Snyder and Wright. I note that Justices Wecht and Donohue suggest that it cannot. Id. at 393 (Wecht, J., concurring) (“Armolt could claim no right (constitutional, statutory, or otherwise) to a juvenile disposition of his charges. Consequently, Armolt is entitled to no comparison between the way his case proceeded and how it would have proceeded in juvenile court. . . . Armolt [cannot] establish that his sentence constituted an equal protection or due process violation; the law does not demand that he be tried as a juvenile in the first instance”).
2 The Commonwealth contends that Appellant, like the defendant in Commonwealth v. Anderson,
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J-A13023-23
2023 PA Super 187
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUIS GABRIEL TORRES JR. : : Appellant : No. 962 MDA 2022
Appeal from the Judgment of Sentence Entered April 18, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005092-2018
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
CONCURRING OPINION BY BOWES, J.: FILED: SEPTEMBER 27, 2023
I agree with my esteemed colleagues that Appellant’s judgment of
sentence should be affirmed. Further, I fully join the Majority’s resolution of
Appellant’s final issue challenging the discretionary aspects of his sentence.
See Majority Opinion at 10-13. I write separately because I would resolve
Appellant’s other two claims differently.
Appellant first argues that the trial court should have granted his motion
to dismiss because his due process rights under the U.S. and Pennsylvania
constitutions were violated when the Commonwealth’s filed criminal charges
against him nine years after it received complaints about acts that he
committed at ages thirteen through fifteen. As its basis for rejecting it, the
Majority cites Commonwealth v. Armolt, 294 A.3d 364 (Pa. 2023), in which
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A13023-23
our High Court held that the adult criminal court had jurisdiction to try,
convict, and sentence forty-two-year-old Armolt for crimes that he committed
when he was a juvenile. See Majority Opinion at 5-6. However, in reaching
that decision, the Armolt Court deemed waived for lack of development, and
therefore did not resolve, Armolt’s claims that subjecting him to criminal
punishment for crimes committed while he was a juvenile violated
constitutional guarantees of due process, equal protection, and freedom from
cruel and unusual punishment. See Armolt, supra at 379-80.
Unlike Armolt, Appellant does not contend that the trial court lacked
jurisdiction to try him as an adult for offenses he committed as a juvenile.
Indeed, he expressly concedes that “the adult criminal justice system had
jurisdiction over [him].” Appellant’s brief at 34-35. Rather, Appellant raises
a constitutional challenge to his belated prosecution that Armolt had waived.
Specifically, Appellant argues that the delay in prosecuting him violated his
due process rights because he suffered actual prejudice from the delay and
the Commonwealth proffered no reasonable basis for it. See Appellant’s brief
at 29-34 (citing, inter alia, Commonwealth v. Wright, 865 A.2d 894, 901
(Pa.Super. 2004) (“[P]re-arrest delay constitutes a due process violation
where there has occurred actual prejudice to the defendant and there existed
no proper reasons for postponing the defendant’s arrest.” (cleaned up)).
Accordingly, I cannot agree with my colleagues that the Armolt decision
informs our resolution of Appellant’s due process claim. Instead, I would
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affirm the denial of Appellant’s motion to dismiss based upon the reasoning of
the trial court. See Trial Court Opinion, 7/28/22, at 7 (explaining that, even
if Appellant were able to establish actual prejudice, there was nothing
improper about the delay, as the singe victim who made a report in 2009
failed to stand by her allegations during a subsequent forensic interview, and
charges were promptly filed in 2018 when Appellant’s siblings next alleged
abuse and substantiated the claims). Accord Commonwealth v. Monaco,
869 A.2d 1026 (Pa.Super. 2005) (holding there was no merit to due process
claim raised in connection with adult prosecution for offenses committed by
juvenile where there was no improper motivation for the delay);1
1 This Court in Commonwealth v. Monaco, 869 A.2d 1026 (Pa.Super. 2005), analyzed the due process claim without expressly applying the framework for pre-arrest delay discussed in Commonwealth v. Snyder, 713 A.2d 596 (Pa. 1998), and Commonwealth v. Wright, 865 A.2d 894 (Pa.Super. 2004), namely determining whether there was actual prejudice to the defendant and no proper reasons for postponing the arrest. The Armolt Court, while not deciding the due process claim, did discuss Monaco and its “‘bad faith’ exception” to the rule that adults can be tried for juvenile conduct. Commonwealth v. Armolt, 294 A.3d 364, 374 n.13 (Pa. 2023). However, Armolt neither (1) examined the due process precedent such as Snyder and Wright that generally applicable to claims of pre-arrest delay in connection with its due-process assessment, nor (2) decided the continued viability of Monaco’s “improper motive” inquiry divorced from that precedent. Id. (“[W]e express no opinion about [Monaco’s] viability; we merely conclude appellant failed to show the Commonwealth acted in bad faith here, so the plain language of the statute controls.”).
Justice Wecht in his concurrence, joined by Justice Donohue, considered at length the possible legal basis for Monaco’s exception, observing that “such a rule serves a vital interest,” and ”should be examined in an appropriate case.” Id. at 386 (Wecht, J. concurring). I do not think this is that case. (Footnote Continued Next Page)
-3- J-A13023-23
Commonwealth v. Anderson, 630 A.2d 47 (Pa.Super. 1993) (reversing
dismissal of charges against adult for offenses committed as a child where the
appellant was responsible for the delay due to his “deliberate avoidance of the
justice system”).2
My disagreement with the Majority’s resolution of Appellant’s second
issue is in a similar vein. There, Appellant argues that (1) a ten-year
mandatory minimum sentence, and (2) an aggregate term of nineteen to forty
years of incarceration, imposed for the repeated sexual abuse of his much-
younger siblings while he was a young teenager, constitutes cruel and unusual
punishment. See Appellant’s brief at 35-58.
Nonetheless, as the author of Monaco, I submit that the same due process guarantees that require dismissal of prosecutions based upon pre-arrest delay inform the Monaco exception. As there is no indication of improper motives for delaying Appellant’s prosecution in this case, I need not expound upon whether being subjected to criminal sentencing rather than juvenile disposition can itself amount to actual prejudice under Snyder and Wright. I note that Justices Wecht and Donohue suggest that it cannot. Id. at 393 (Wecht, J., concurring) (“Armolt could claim no right (constitutional, statutory, or otherwise) to a juvenile disposition of his charges. Consequently, Armolt is entitled to no comparison between the way his case proceeded and how it would have proceeded in juvenile court. . . . Armolt [cannot] establish that his sentence constituted an equal protection or due process violation; the law does not demand that he be tried as a juvenile in the first instance”).
2 The Commonwealth contends that Appellant, like the defendant in Commonwealth v. Anderson, 630 A.2d 47 (Pa.Super. 1993), is himself responsible for the delay. Specifically, the Commonwealth cites Appellant’s silencing threats to his young siblings over whom he had authority as the reason the Commonwealth lacked evidence to prosecute in 2009. See Commonwealth’s brief at 14-16. The trial court did not cite this as the basis for its denial.
-4- J-A13023-23
Specifically, Appellant relies upon Miller v. Alabama, 567 U.S. 460
(2012), and its progeny in asserting that “‘a sentencer must have discretion
to consider youth before imposing’ sentence.”3 Appellant’s brief at 43 (quoting
Jones v. Mississippi, 141 S.Ct. 1307, 1316 (2021) (emphasis omitted)). He
therefore urges us to declare that the Eighth Amendment of the federal
Constitution, and Article I, § 13 of the Pennsylvania Constitution: (1) “require
a criminal court to consider the diminished culpability of youth when imposing
a sentence where the defendant committed the crime as a child;” and (2)
“forbid the application of mandatory minimum sentences to defendants who
committed their crimes as children.” Appellant’s brief at 58.
In declining Appellant’s request, the Majority asserts that so ruling
would run afoul of our Supreme Court’s plurality decision in Commonwealth
v. Resto, 179 A.3d 18 (Pa. 2018). See Majority Opinion at 9. As the Majority
correctly observes, three of the five Justices who participated in deciding
Resto agreed that 18 Pa.C.S. § 9718, which requires a mandatory minimum
sentence of not less than ten years for persons convicted of, inter alia, rape
of a child, does not violate the Sixth Amendment’s prohibition against judicial
fact-finding recognized in Alleyne v. United States, 570 U.S. 99 (2013).
3 The Miller Court held that mandatory life imprisonment without parole for
people who were juveniles at the time of their crimes constitutes cruel and unusual punishment given the hallmark, yet usually transient, features of youth such as “immaturity, impetuosity, and failure to appreciate risks and consequences.” Miller v. Alabama, 567 U.S. 460, 477 (2012).
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See Majority Opinion at 9 n.8. However, the Resto Court did not review
§ 9718 pursuant to the Eighth Amendment.
The Majority also rejects Appellant’s Eighth Amendment challenge to
§ 9718 because it finds the decisions upon which Appellant relies inapplicable
since they involve life sentences for juveniles tried as adults rather than lesser
terms. See Majority Opinion at 9-10. Further, the Majority reiterates that
Appellant “was not entitled to any special sentencing benefits under the
Juvenile Act.” Id. at 10 (citing Armolt, supra).
Respectfully, I fail to see how our High Court’s Resto decision has any
relevance to the instant appeal. No claim of cruel and unusual punishment
was raised in that case. The fact that the mandatory minimum statute at
issue survived a Sixth Amendment challenge does not make it impervious to
attack on other constitutional bases. Further, since jurisdiction is not at issue
in the case sub judice, and, as discussed above, that was the only issue
decided in Armolt, that case also does not supply relevant guidance to this
constitutional challenge.
Even so, I find the learned Majority’s election not to make the
declarations of unconstitutionality that Appellant seeks to be correct. The
Supreme Court’s Miller decision, even by extension of its foundational
recognition of the transience of youth and its attendant lack of sound decision-
making, did not invalidate the imposition of all mandatory sentences upon
juvenile offenders, only those which “irrevocably sentenc[e] them to a lifetime
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in prison.” Miller, supra at 479. When the Commonwealth does not seek a
sentence of life without the possibility of parole, “[t]he sentencing court is not
required to consider the Miller factors[.]” Commonwealth v. Summers,
245 A.3d 686, 693 (Pa.Super. 2021). Furthermore, Appellant’s argument that
a ten-year mandatory minimum sentence for a juvenile convicted of rape of a
child violates the Eighth Amendment requirements established by Miller and
its progeny has already been implicitly rejected by our holding that the Miller
decision bore no relevance to a challenge to the thirty-year mandatory
minimum for second-degree murder. See Commonwealth v. Derrickson,
242 A.3d 667, 678–79 (Pa.Super. 2020).
I also discern no merit in Appellant’s Miller-based Eighth Amendment
attack upon his aggregate sentence. As the Majority properly notes in
resolving Appellant’s discretionary aspects claim, the trial court here
thoroughly considered the mitigating factor of Appellant’s youth, along with
the other pertinent evidence, in determining the sentence best suited to
meeting his rehabilitative needs. See Majority Opinion at 12-13. Indeed, the
trial court “extensively considered . . . Appellant’s youth at the time of the
commission of his offenses” in arriving at the aggregate sentence it deemed
necessary and appropriate in light of all of the sentencing factors. See Trial
Court Opinion, 7/28/2, at 13-14. Thus, the trial court in fact undertook the
very consideration of youth that Miller would require.
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Moreover, the punishment imposed upon Appellant is not out of
proportion with Appellant’s conduct. As the trial court indicated, “Appellant
preyed upon three minor children of a very tender age,” and there was “an
inherent cruelty [to] his conduct” given the position of authority that he held
as a caregiver. Id. at 14. With all sentences falling within the standard range
and all running currently but for one, Appellant will serve a fraction of the time
that the court could have lawfully imposed. There is no manifest abuse of
discretion here, let alone so harsh a sentence as to be unconstitutionally cruel
and unusual.
It is for these reasons that I would affirm Appellant’s judgment of
sentence.
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