Com. v. Velez-Rivera, E.

J-S10030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

EDWIN VELEZ-RIVERA :

:

Appellant : No. 2564 EDA 2022

Appeal from the Judgment of Sentence Entered July 22, 2022

In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP-45-CR-0002258-2020

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED APRIL 25, 2023

Edwin Velez-Rivera appeals from the judgment of sentence entered in

the Court of Common Pleas of Monroe County. We affirm.

Following trial, a jury convicted Velez-Rivera of various sexual offenses

against his two minor daughters.1 The trial court sentenced Velez-Rivera to

____________________________________________

1 For several years, Velez-Rivera “systematically, continuously, regularly, and

repeatedly sexually assaulted both children.” Trial Court Opinion, 12/12/22,

at 1. “Suffice it to say that the assaults consisted of unspeakable acts that

included, but are certainly not limited to, penile, digital, and oral penetration

of both girls.” Id. The victims were between the ages of 10 and 12 at the

time of the assaults. Velez-Rivera documented the sexual assaults through

photographs and videos, which he saved to his electronic devices. Thirty-one

videos and 316 photographs were recovered. Id. at 2. Velez-Rivera filed a

separate appeal at 2634 EDA 2022 from the judgment of sentence entered

with respect to CP-45-CR-0002259-2020, relating to the child pornography

offenses (21 counts of creation and 21 counts of possession of child

pornography relating to the videos, one count of possessing more than 200

still images of child pornography, and one count of criminal use of a

communications facility). That appeal was dismissed for failure to comply with

(Footnote Continued Next Page)

J-S10030-23

128 to 262 years’ imprisonment. Velez-Rivera filed a post-sentence motion,

which the court denied, followed by this timely appeal. Both Velez-Rivera and

the trial court have complied with Pa.R.A.P. 1925. On appeal, Velez-Rivera

challenges the discretionary aspect of his sentence, arguing his sentence,

virtually a life sentence, was excessive. Velez-Rivera has included a Pa.R.A.P.

2119(f) statement in his brief, asserting his sentence was manifestly excessive

as it “would span two lifetimes.” Appellant’s Brief, at 6. We accept that

Velez-Rivera raises a substantial question, given the aggregate length of the

sentence imposed, but we conclude no relief is due. See Commonwealth v.

Prisk, 13 A.3d 526 (Pa. Super. 2011) (sentence of 633 to 1,500 years’

imprisonment for 314 offenses, including multiple counts of rape, involuntary

deviate sexual intercourse, and indecent assault, not excessive; defendant’s

convictions stemmed from systematic sexual abuse of stepdaughter, which

occurred on almost daily basis over course of six years, and court did not

impose consecutive sentences for every count).

After our review, we find no abuse of discretion and we rely on the

comprehensive opinion authored by the Honorable Jonathan Mark to affirm

Velez-Rivera’s judgment of sentence. The parties are directed to attach a

copy of Judge Mark’s opinion in the event of further proceedings.

Judgment of sentence affirmed.

____________________________________________

Pa.R.A.P. 3517 (failure to file docketing statement may result in dismissal of

appeal). See Order, 12/29/22.

-2-

J-S10030-23

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/25/2023

-3-

Circulated 04/04/2023 02:06 PM

1_Opinion Pursuant to Pa.R.A.P.1925(a).pdf

COURT OF COMMON PLEAS OF MONROE COUNTY

FORTY-THIRD JUDICIAL DISTRICT

COMMONWEALTH OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA :

Nos. 2258 CR 2020

2259 CR 2020

V.

APPEAL DOCKET

EDWIN VELEZ-RIVERA, Nos. 2564 EDA 2022

2634 EDA 2022

Defendant

OPINION PURSUANT TO Pa.R.A.P. 1925(a)

Following the denial of his post-sentence motions, Defendant filed appeals from

the judgments of sentence entered in each of these cases. On receipt of the appeals, we

directed Defendant to file Concise Statements of Errors Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b). Defendant complied, filing statements in which he

challenges only the discretionary aspects of the sentences imposed in each case. We

now file this opinion in accordance with Pa.R.A.P. 1925(a).

BACKGROUND

Defendant is the father of two minor daughters. From the time the youngest was 9

years-old until the oldest was just over 13, Defendant systematically, continuously,

regularly, and repeatedly sexually assaulted both children. Since neither the assaults nor

the sufficiency of evidence is being challenged, there is no need to detail the specifics of

the abuse. Suffice it to say that the assaults consisted of unspeakable acts that included,

but are certainly not limited to, penile, digital, and oral penetration of both girls. Defendant

used his parental status, bribery, manipulation, threats, and intimidation to groom the girls

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and to keep them from disclosing the abuse. Defendant documented the sexual assaults

through videos and photographs that he saved to his electronic devices. In all, 31 videos

and 316 still images were recovered.'

The charges in case No. 2259 Criminal 2020 are based on Defendant's

documentation of the sexual assaults. In that case, he was charged with 32 counts of

Creation and 32 counts of Possession of Child Pornography and one count of Criminal

Use of aCommunication Facility.

The charges in case No. 2258 Criminal 2020 are based on the actual sexual

assaults. In that case, Defendant was charged with 36 counts of Rape of a Child, four

counts of Involuntary Deviate Sexual Intercourse ( IDSI) with a Child, 14 Counts of other

sex offenses under Chapter 31 of the Crimes Code, and multiple counts of crimes

designed to protect the welfare and morals of children.

The cases were tried together on February 22, 2022. To simplify the presentation

of evidence and clarify the issues and verdict sheets for the jury, only 21 videos were

shown and only crimes depicted in the 21 videos or the still images were submitted. 2

Correspondingly, in case No. 2259 the jury was presented with 21 counts of Creation and

21 Counts of Possession of Child Pornography relating to videos, one count of

Possession of Child Pornography based on the still images that was accompanied by an

interrogatory asking the jury to determine the number of images proven, and one count

of Criminal Use of a Communication facility. The remaining charges were either

withdrawn or not submitted to the jury. ( See Verdict Sheet dated February 22, 2022 and

Order Accepting Verdict dated February 22 and entered March 7, 2022).

1 The authorities were unable to forensically examine some of Defendant's devices.

2 Evidence of assaults committed after Defendant's oldest daughter turned 13 was not presented.

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In Case No. 2258, the jury was presented with 22 counts of Rape of a Child, each

of which referenced avideo identified by its creation date (one video showed both children

being raped during the same incident) and two counts each (one for each child) of several

additional Chapter 31 crimes as well as the child-protective crimes. The remaining counts

were withdrawn or not presented to the jury. (

See Verdict Sheet dated February 22, 2022

and Order Accepting Verdict dated February 22 and entered March 7, 2022).

The jury found Defendant guilty of all crimes with which they were presented in

both cases. Specifically, in case No. 2258, Defendant was convicted of 22 counts of Rape

of a Child, and two counts each of IDSI with a Child, Aggravated Indecent Assault of a

Child, Indecent Assault of a Child (Course of Conduct), Corruption of a Minor,

Endangering the Welfare of aChild, and Unlawful Contact with aChild. 3 In case No. 2259

of 2020, the jury convicted Defendant of 21 counts of Creation and 21 counts of

Possession of Child Pornography relating to the videos, one count of Possessing more

than 200 still images of Child Pornography, and one count of Criminal Use of a

Communication Facility.

In the orders accepting the verdicts, we directed our Probation Department to

conduct a Pre-Sentence Investigation ( PSI) and the Pennsylvania Sexual Offender

Assessment Board (SOAB) to conduct a Sexually Violent Predator ( SVP) assessment.

Our Probation Office and SOAB complied. The resulting PSI and SVP reports were

presented to the Court and made available to both parties in advance of the sentencing

hearing.

sThe Order accepting the verdicts inadvertently indicated that Defendant was also convicted of Statutory Sexual

Assault, an offense that had been withdrawn by the Commonwealth. The error was remedied during the sentencing

hearing and acorrective order was issued. (Order dated July 22, 2022; N.T., 7/22/2022, pp. 41-43).

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1_Opinion Pursuant to Pa.R.A.P.1925(a).pdf

Since SOAB determined that Defendant met the criteria to be designated as an

SVP, the Commonwealth asked the Court to schedule an SVP hearing. We scheduled

the SVP hearing to coincide with the sentencing hearing.

Prior to sentencing, the Commonwealth gave notice of its intent to seek mandatory

sentences for the Rape of a Child and IDSI with a Child convictions. The mandatory

minimum sentences were referenced in the PSI report.

On July 22, 2022, the SVP/sentencing hearing was convened. During the SVP

hearing, the SOAB report and the Curriculum Vitae of the evaluator who authored it were

admitted into evidence. 4 The parties stipulated to the facts set forth in the report. After

reviewing and discussing the report with his attorney, Defendant knowingly, voluntarily,

and intelligently stipulated that the statutory criteria for him to be designated as an SVP

had been satisfied. Based on the report, the evidence presented at trial, the parties'

stipulation, and Defendant's counseled agreement, we found that statutory SVP criteria

had been established. ( N.T., 7/22/2022, pp. 5-13, 46-47).

During the sentencing portion of the hearing, Defendant and his attorney

addressed the Court. Defendant read a letter which appeared to be intended for his

daughters. During his statements, Defendant acknowledged that what he did to his

daughters was unforgivable.

The children's mother participated in the hearing. (

Id. at 3-4, 23-27). She did not

wish to address the Court. However, her profoundly impactful letter, in which she outlined

the permanent, unimaginable harm Defendant's conduct and the sexual assaults caused,

was read into the record by the assistant district attorney. Between the letter and his own

4 The SOAB evaluator, who had qualified as an expert in prior SVP hearings in this Court, was present.

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comments, the assistant district attorney effectively pointed out that Defendant had

robbed both children of their innocence, childhood, and emotional well-being, and

described the permanent harm suffered by the children and their mother. The assistant

district attorney also accurately and effectively highlighted, among other things, the

findings of the SOAB report, including findings that Defendant suffered from both Anti-

Social Personality Disorder and Pedophilic Disorder, Defendant's history, his lack of

remorse, his predatory conduct, the position of authority and trust he occupied at the time,

the facts and history summarized in the PSI report, and other matters and sentencing

considerations. He asked the Court to designate Defendant a SVP and impose the

"maximum sentence" allowable by law — by his calculations, an aggregate sentence of

514 to 1,028 years' incarceration. (

Id. at 23-34).

At that point, we recessed to read and review the impact statement submitted by

the children's mother and think about what had been presented up to that point.

Thereafter, we sentenced Defendant to atotal of 128 to 262 years' incarceration, plus the

3-year period of probation required by 42 Pa. C.S.A. § 9718.5, and classified him as a

Sexually Violent Predator ("SVP").

Specifically, in case No. 2258, we sentenced Defendant to an aggregate of 117

years to 240 years, comprised of consecutive 20 to 40 year sentences on two of the

eighteen Rape of a Child convictions, and consecutive term-of-years sentences on each

of the non- Rape of a Child convictions. On each of the remaining 16 counts of Rape of a

Child, Defendant was sentenced to 20 to 40 years, but the sentences were run

concurrently with each other and with the other sentences imposed in the case.

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In case No. 2259, Defendant was sentenced to a total of 11 to 22 years,

consecutive to the aggregate sentence imposed in case No. 2258, comprised of

consecutive sentences of 2 /2 to 5 years on each of two counts of Creation of Child

'

Pornography, consecutive sentences of 2 /2

' to 5 years on each of two counts of

Possession of Child Pornography, and a consecutive 1 to 2 year sentence on the

conviction for Criminal use of a Communication Facility. On each of the remaining 39

counts of Child Pornography, Defendant was sentence to 2 /2

' to 5 years, but the

sentences were run concurrently with each other and with the other sentences imposed

in the case. The individual and aggregate sentences imposed are within statutory limits

and the standard range, albeit at the top end of the standard range.

We recited the reasons for the individual and aggregate sentences on the record.

In doing so, we identified the documents, records, and information we considered in

fashioning the sentence. Among other things, we considered the PSI report prepared by

our Probation Department, the SOAB report, the evidence presented during pretrial

proceedings, the evidence presented during the trial, the impact statement submitted by

the children's mother, the statements made by Defendant, his attorney, and the assistant

district attorney, and the relevant sentencing laws and guidelines. (

Id. at 38-69;

Judgments of Sentence entered in each case dated July 22, 2022). We incorporate our

on- record statements and reasoning into this opinion by reference.

Thereafter, Defendant filed motions for reconsideration in which he alleged only

that he believes the sentences are excessive. After the motions were denied, Defendant

filed these appeals.

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DISCSSUSION

On appeal, Defendant challenges only the discretionary aspects of his sentences.

In each case, he raises only asingle assignment of error claiming that this Court:

committed reversible error when the sentence imposed was

excessive given the totality of the circumstances with no

legitimate reason to run a sentence equivalent to life

imprisonment without the possibility of parole.

(Defendant's Rule 1925(b) Statements, filed in both cases on October 20, 2022, ¶ 1).

Defendant's sentencing challenges lack merit.

1. The Standards

Sentencing is a matter within the sound discretion of the trial court. See

Commonwealth v. Walls, 926 A.2d 957 ( Pa. 2007). In sentencing each particular

defendant, the sentencing court may select one or more options with regard to

determining the appropriate sentence to be imposed. The options include probation, guilt

without further penalty, partial confinement, or total confinement. Id.; 42 Pa.C.S. §

9721(a). The court must impose asentence that is "consistent with the protection of the

public, the gravity of the offense as it relates to the impact on the life of the victim and on

the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b).

See Walls, 926 A.2d at 967-68; Commonwealth v. Dodge, 957 A.2d 1198, 1200 ( Pa.

Super. 2008), appeal denied, 980 A.2d 605 ( Pa. 2009). In imposing asentence, the trial

court may determine whether, given the facts of the case, a sentence shall run

consecutive to or concurrent with another sentence being imposed. See Commonwealth

v. Moury, 992 A.2d 162 ( Pa. Super. 2010); Commonwealth v. Lilley, 978 A.2d 995 ( Pa.

Super. 2009); Commonwealth v. Pass, 914 A.2d 442 ( Pa. Super. 2006).

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The sentencing guidelines promulgated by the Pennsylvania Commission on

Sentencing are instructive and advisory, but are not binding on the sentencing court. The

court is obligated to consider the guidelines, but is under no duty to sentence aparticular

defendant within the guidelines or to impose the minimum possible confinement

consistent with the guidelines. Walls, 926 A.2d at 575; Dodge, 957 A.2d at 1201.

Nonetheless, "where a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing Code."

Commonwealth v. Moury, 992 A.2d 162, 171 ( Pa. Super. 2010) (citing Commonwealth v.

Cruz- Centeno, 668 A.2d 536 ( Pa. Super. 1995), appeal denied, 676 A.2d 1195 ( Pa.

1996)). However, if the sentencing court imposes a sentence outside of the guidelines,

it must provide awritten statement of its reasons for the deviation, and its failure to do so

may constitute grounds for resentencing. Walls, 926 A.2d at 963; 42 Pa.C.S. § 9721.

In general, a sentencing judge must consider pertinent facts and sentencing

factors and the force of the evidence and may not commit an error of law or inflict

punishment that exceeds statutory prescriptions. Commonwealth v. Youngkin, 427 A.2d

1356, 1369 ( Pa. Super. 1981). In more specific terms, "[w]hen imposing a sentence, a

court is required to consider the particular circumstance of the offense and the character

of the defendant.... In particular, the court should refer to defendant's prior criminal record,

his age, personal characteristics and his potential for rehabilitation." Moury, 992 A.2d at

171 (quoting Com. v. Griffin, 804 A.2d 1, 10 ( Pa. Super. 2002), appeal denied, 868 A.2d

1198 ( Pa. 2005), cent. denied, 545 US 1148 (2005).

The sentencing judge must state his or her reasons for the sentence on the record.

42 Pa.C.S.A. § 9721(b). The judge may satisfy this requirement by stating or

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demonstrating at time of sentencing that the judge has been informed of the reasons by

the PSI report. Commonwealth v. Coss, 695 A.2d 831, 834 ( Pa. Super. 1997); 42

Pa.C.S.A. § 9721(b). When, as here, a PSI report exists, the law presumes that

the sentencing judge was aware of the relevant information

regarding the defendant's character and weighed those

considerations along with mitigating statutory factors. A pre-

sentence report constitutes the record and speaks for

itself .... [Sentencing courts] are under no compulsion to

employ checklists or any extended or systematic definitions of

their punishment procedure. Having been fully informed by

the pre-sentence report, the sentencing court's discretion

should not be disturbed. This is particularly true ... in those

circumstances where it can be demonstrated that the judge

had any degree of awareness of the sentencing

considerations, and there we will presume also that the

weighing process took place in ameaningful fashion. It would

be foolish, indeed, to take the position that if a court is in

possession of the facts, it will fail to apply them to the case at

hand.

Commonwealth v. Devers, 546 A.2d at 18. See also Moury, 992 A.2d at 171;

Commonwealth v. Fowler, 893 A.2d 758 ( Pa. Super. 2006); Commonwealth v. Tirado,

870 A.2d 362 ( Pa. Super. 2005); Commonwealth v. Burns, 765 A.2d 1144, 1150-1151

(Pa. Super. 2000). Additionally, a sentencing judge is not required, when giving the

reasons for a particular sentence, to make a specific reference to the factors set forth in

the Sentencing Code that were considered in deciding the sentence, but the record as a

whole must reflect that the judge in fact considered the sentencing factors.

Commonwealth v. Coulverson, 34 A.3d 135,145-146 ( Pa. Super. 2011).

The court determines whether aggravating circumstances exist. If aggravating

circumstances are present, "the court may impose an aggravated sentence ...." 204 Pa.

Code. § 303.13(a). A sentencing judge " has wide discretion in sentencing and can, on

the appropriate record and for the appropriate reasons, consider any legal factor in

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imposing asentence in the aggravated range." Commonwealth v. Stewart, 867 A.2d 589,

593 ( Pa. Super. 2005) (citation omitted). See also Commonwealth v. Duffy, 491 A.2d

230, 233 ( Pa. Super. 1985) ( holding that asentencing judge may consider any legal factor

in deciding whether a defendant should be sentenced within the aggravated range). A

sentencing judge may even consider uncharged criminal conduct for sentencing

purposes.

Not only does the case law authorize a sentencing court to

consider unprosecuted criminal conduct, the sentencing

guidelines essentially mandate such consideration when a

prior record score inadequately reflects a defendant's

criminal background.

Commonwealth v. P.L.S., 894 A.2d 120, 131 ( Pa. Super. 2006), appeal denied, 906 A.2d

542 ( Pa. 2006). See also 204 Pa. Code § 303.5(d).

The court also determines whether the sentence imposed should run consecutively

or concurrently with other sentences to which the defendant is subject. In this regard, it is

well-settled that the sentencing judge has discretion to impose a sentence concurrently

or consecutively to other sentences being imposed at the same time or to sentences

already imposed. See Commonwealth v. Mastromarino, 2 A.3d 581 ( Pa. Super. 2010)

(and cases cited therein) and Commonwealth v. Marts, 889, A.2d 608 ( Pa. Super. 2005)

(same). See also 42 Pa. C.S.A. § 9721(a).

In sum, our sentencing laws establish a framework for sentencing. Within the

established framework, trial courts have broad discretion in determining the range of

permissible confinements that best suits the particular defendant and the circumstances

surrounding the event. See Commonwealth v. Moore, 617 A.2d 8, 12 ( Pa. Super. 1992).

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The appellate standard of review is reflective of the type of discretion vested in

sentencing courts. As recently articulated by our Supreme Court:

[T]he proper standard of review when considering whether to

affirm the sentencing court's determination is an abuse of

discretion .... [A]n abuse of discretion is more than amere error

of judgment; thus, asentencing court will not have abused its

discretion unless the record discloses that the judgment

exercised was manifestly unreasonable, or the result of

partiality, prejudice, bias, or ill-will. In more expansive terms,

our Court recently offered: an abuse of discretion may not be

found merely because an appellate court might have reached

a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or

such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the

concomitantly deferential standard of appellate review is that

the sentencing court is in the best position to determine the

proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.

Walls, 926 A.2d at 961 ( internal citations, quotation marks, and footnote omitted). For

purposes of appellate review of a particular sentence, an " unreasonable" decision from

the sentencing court would be one that is "` irrational' or ` not guided by sound judgment."'

Id. at 963. See Dodge, 957 A.2d at 1200; 42 Pa.C.S. § 9781(c)(2) and (3). 5

Challenges to the discretionary aspects of sentencing do not entitle adefendant to

review as of right. In order to establish that review is warranted, the appellant must

demonstrate that there is a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code. A substantial question exists only when the

defendant advances a colorable argument that the sentencing judge's actions were

sThe Sentencing Code prescribes a slightly different standard of appellate review for sentences that are

outside the guidelines as opposed to sentences that fall within guideline ranges. Sentences that fall outside the

guideline range are subject to the "unreasonable" standard of 42 Pa.C.S.A. Section 9781(c)(3), while sentences that

fall within guideline ranges are subject a "clearly unreasonable" standard of 42 Pa.C.S.A. Section 9781(c)(2). See

Dodge, 957 at 1200 n.3.

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either: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to

the fundamental norms of the sentencing process. See Commonwealth v. Mouzon, 812

A.2d 617, 627-628 ( Pa. 2002); Commonwealth v. Crump, 995 A.2d 1280, 1282 ( Pa.

Super. 2010), appeal denied, 13 A.3d 475 ( Pa. 2010); Moury, supra; Commonwealth v.

Sierra, 752 A.2d 910 ( Pa. Super. 2000). These issues must be examined and determined

on acase-by-case basis. Commonwealth v. Marts, 889 A.2d 608, 613 ( Pa. Super. 2005).

Our appellate courts have routinely held that general "excessiveness challenges"

to standard range sentences and routine claims that sentencing courts have failed to

consider mitigating factors do not raise the requisite substantial question. This is

especially true where, as here, the sentencing judge has been informed by a PSI and the

record demonstrates that the judge considered applicable sentencing factors. See

Moury, supra; Commonwealth v. Downing, 990 A.2d 788 ( Pa. Super. 2010);

Commonwealth v. Matrioni, 923 A.2d 444 ( Pa. Super. 2007); Pass, supra.

Before reviewing the discretionary aspects of a sentencing claim, the Superior

Court conducts:

a four-part analysis to determine: ( 1) whether appellant has

filed atimely notice of appeal, see Pa-R.A.P. 902 and 903; (2)

whether the issue was properly preserved at sentencing or in

a motion to reconsider and modify sentence, see

Pa.R.Crim.P. [720]; ( 3) whether appellant's brief has a fatal

defect, Pa.R.A.P. 2119(f); and (4) whether there is a

substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, 42 Pa.C.S.A. §

9781(b).... Objections to the discretionary aspects of a

sentence are generally waived if they are not raised at the

sentencing hearing or raised in a motion to modify the

sentence imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533 ( Pa. Super. 2006), appeal denied, 589 Pa.

727, 909 A.2d 303 (2006) (citations and quotation marks omitted). See also

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Commonwelath v. Oree, 911 A.2d 169 ( Pa. Super. 2006), appeal denied, 591 Pa. 699,

918 A.2d 744 (2007) (explaining challenges to discretionary aspects of sentencing must

be raised in post-sentence motion or during sentencing proceedings; absent such efforts,

claim is waived; inclusion of discretionary aspects of sentencing claim in Pa.R.A.P.

1925(b) statement will not cure waiver).

2. Defendant's Sentence Was Neither Excessive Nor Improper

In this case, Defendant argues that his sentence is manifestly excessive and

unreasonable because it aggregates to a Virtuaf' or "

de facto" life sentence. Under the

facts of this case, the applicable law, and decisions involving similar conduct and

sentences, Defendant's argument is unavailing.

As the cited cases and others teach, " Generally, Pennsylvania law affords the

sentencing 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. Prisk, 13 A.3d 526, 533 ( Pa. Super. 2011). See also Commonwealth

v. Austin, 66 A.3d 798 ( Pa. Super. 2013). Accordingly, the imposition of consecutive,

rather than concurrent, sentences generally does not raise a substantial question. Such

a claim may raise a substantial question in only the most extreme circumstances, such

as where the aggregate sentence is unduly harsh and prima facie appears excessive

considering the criminal conduct that occurred in the case, the nature of the crimes, and

the length of imprisonment. See Commonwealth v. Dodge, 77 A.3d 1263 ( Pa. Super.

2013) (" Dodge 111") (

and cases cited therein), appeal denied, 91 A.3d 161 ( Pa. 2013);

Austin, supra; Mastromarino, supra; Moury, supra. In addition, when reviewing challenges

to aggregate sentences, Pennsylvania's entrenched sentencing principle that persons

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convicted of multiple offenses are not entitled to a "volume discount" must be considered.

See Commonwealth v. Foust, 180 A.3d 416 ( Pa. Super. 2018) (and cases cited therein).

See also Prisk, supra; Austin, supra; Commonwealth v. Hoag, 665 A.2d 1212 ( Pa. Super.

1995). In cases, where, as here, the perpetrator's conduct consists of the long-term,

systematic abuse of children, our Superior Court has consistently applied these principles

to determine that challenges to aggregate sentences much longer than the total sentence

we imposed on Defendant failed to raise the requisite substantial question and, in any

event, were substantively without merit.

Commonwealth v. Prisk, 13 A.3d 586 ( Pa. Super. 2011), illustrates the application

of these settled principles to a case that is factually similar to this matter. In Prisk, the

defendant was convicted of committing 314 offenses, including multiple counts of Rape,

IDSI, and Indecent Assault, against his minor step-daughter over a period of six years.

He was sentenced to an aggregate of 633 to 1,500 years. The defendant conceded his

sentence fell within the statutory guidelines, but nevertheless argued that the trial court

imposed amanifestly excessive sentence because it was much more than alife sentence.

The Superior Court rejected Prisk's argument, finding that he did not assert asubstantial

question, and affirmed the sentence — asentence that is more than four times longer than

the sentence we imposed in this case. The Superior Court stated:

The determination of what constitutes a substantial question

must be evaluated on a case-by-case basis. Commonwealth

v. Paul, 925 A.2d 825 ( Pa. Super. 2007). A substantial

question exists "only when the appellant advances acolorable

argument that the sentencing judge's actions were either: ( 1)

inconsistent with aspecific provision of the Sentencing Code;

or (2) contrary to the fundamental norms which underlie the

sentencing process." Sierra, supra at 912-13.

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Generally, Pennsylvania law "affords the sentencing

court discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at the same

time or to sentences already imposed. Any challenge to the

exercise of this discretion ordinarily does not raise a

substantial question." Commonwealth v. Pass, 914 A.2d 442,

446-47 ( Pa.Super.2006). See also Commonwealth v.

Hoag, 445 Pa.Super. 455, 665 A.2d 1212, 1214

(1995) (stating appellant is not entitled to "volume discount"

for his crimes by having all sentences run concurrently). But

see Commonwealth V. Dodge, 957 A.2d 1198

(Pa.Super.2008), appeal denied, 602 Pa. 662, 980 A.2d 605

(2009) ( holding consecutive, standard range sentences on

thirty-seven counts of theft- related offenses for aggregate

sentence of 58 /2 to 124 years' imprisonment constituted

'

virtual life sentence and, thus, was so manifestly excessive as

to raise substantial question). "Thus, in our view, 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." Mastromarino, supra at 587.

Instantly, Appellant properly preserved his sentencing

issue in a timely filed post-sentence motion and included

a Rule 2119(f) statement in his appellate brief. Although a

substantial question appears to exist on the surface, we must

emphasize that the jury found Appellant guilty of three

hundred and fourteen (314) separate offenses. These

offenses stemmed from Appellant's systematic sexual abuse

of his stepdaughter, which occurred on an almost daily basis

over the course of six years. Further, the court did not impose

consecutive sentences for every count. At the same time,

Appellant was not entitled to a "volume discount" for his

multiple offenses. See Hoag, supra. Based upon the

foregoing, we will not deem the aggregate sentence as

excessive in light of the violent criminal conduct at

issue. See Mastromarino, supra. Therefore, Appellant's

challenge to the imposition of the consecutive sentences as

excessive merits no relief. See Pass, supra. Accordingly, we

affirm the judgment of sentence.

Id. at 533 (emphasis in original). See also Commonwealth v. Sauter, 2022 WL 3208804

(Pa. Super., Mem. Op., filed August 9, 2022) ( persuasive) (sentence of 90 to 180 years'

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incarceration for sexually assaulting ayoung girl on multiple occasions from the time she

was 12 to age 14 was neither manifestly excessive nor an abuse of discretion, noting that

the defendant was not entitled to avolume discount on his heinous crimes against achild,

that the defendant was afather figure, and that not all sentences were run consecutively);

Commonwealth v. Stull, 2018 WL 1528370 ( Pa. Super., Mem. Op., filed March 29, 2018);

Commonwealth v. R. W., 2013 WL 11284058 ( Pa. Super., Mem. Op., filed January 11,

2013). See generally Dodge 111, supra; Austin, supra.

In this case, Defendant sexually assaulted not just one but two young children —

his own daughters — on multiple occasions over an extended period of time. The abuse

was sustained and pervasive and the crimes were heinous. Defendant groomed and

silenced his daughters through bribery, threats, intimidation, manipulation, and

capitalizing on his status as a parent and an authority figure. He filmed the abuse. He

showed no remorse. His actions were predatory and anti-social within both the general

and clinical meanings of those terms.

Further, in imposing sentence, we were informed by the SOAB report, the PSI

report, the evidence presented during pretrial proceedings and trial, the sentencing laws

and guidelines, the advocacy of the attorneys, the impact statement submitted by the

children's mother, and our in-court observations of Defendant. We did not give Defendant

avolume discount. At the same time, we did not impose consecutive sentences on each

count, a fact deemed significant in several decisions upholding virtual life sentences in

analogous cases. On the contrary, by the numbers, many more individual sentences were

run concurrently than were run consecutively. Along similar lines, we declined the

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Commonwealth's invitation to impose a minimum sentence of more than five centuries.

Instead, as stated at the time sentence was imposed, we meted out a measured

aggregate sentence which at once punished Defendant for each type of crime he

committed against each child and recognized the devastating harm that each crime,

individually and in the aggregate, caused each child.

Finally, as even a cursory review of our on- record sentencing comments

demonstrates, we considered Defendant's history, diagnoses, minimal rehabilitative

prospects, the nature and grading of his crimes, the impact of his crimes on the

community, and, most importantly, the harm Defendant caused to his daughters. What

he did will cause each child a lifetime of trauma, stress, and mental, emotional, physical,

and social issues. The children's lives were forever changed and the hurdles each will

have to overcome in order to have some semblance of normalcy in their lives and

relationships will at best be very difficult to achieve.

Under the facts and circumstances of this case, the law cited above, and the

measured aggregate sentence we imposed, we do not believe Defendant will be able to

raise the requisite substantial question necessary for appellate review of his challenges

to the discretionary aspects of his sentences. Using the language of Defendant's Rule

1925(b) statements, Defendant's conduct and the indescribable harm he caused provided

ample " legitimate reasons" for the sentence. Likewise, using the language of the cited

cases, given the heinous criminal conduct in which Defendant engaged, the nature of the

crimes, the harm Defendant caused, and the length of imprisonment, especially when

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viewed in light of the maximum to which Defendant was exposed, 6 the sentence was

neither unduly harsh nor prima facie excessive.

In the alternative, for the same reasons, we believe that Defendant's challenges

are substantively without merit, that the challenged aggregate sentence is neither unduly

excessive nor an abuse of discretion, that in sentencing Defendant we did not commit

error, and that the sentence was manifestly reasonable, proper, and just.

For these reasons, as well as the reasons expressed on the record during the

sentencing hearing, we believe that the judgments of sentence entered in these cases

should be affirmed.

BY THE COURT:

DATE: December 12, 2022

JONIA,THAN MARK, J.

Filed

12/12/2022 1:25PM

Court of Common Pleas

Cc: Superior Court of Pennsylvania

District Attorney ( MTR)

Public Defender (JTL)

6 Some decisions upholding virtual life sentences in analogous cases reference negotiated pleas that the defendant

rejected. In this case, after discussing with his attorney his overall sentencing exposure and the strength of the

Commonwealth's case, which was due in large part to the videos and photographs he himself created, Defendant on

more than one occasion rejected the Commonwealth's offer of anegotiated 25 to 50 year sentence. ( See N.T.,

7/22/2022, pp. 20-21). Defendant was fully informed and aware of his outside sentencing exposure.

18