J-S53014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
 JOSEPH TOWNSEND                           :
                                           :
                    Appellant              :       No. 3238 EDA 2017


          Appeal from the Judgment of Sentence August 18, 2017
           in the Court of Common Pleas of Montgomery County
            Criminal Division at No.: CP-46-CR-0005257-2015


BEFORE:    GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                           FILED OCTOBER 17, 2018

      Appellant, Joseph Townsend, appeals from the judgment of sentence

imposed following his bench trial conviction of rape of a child. Specifically, he

challenges the denial of a motion for suppression. He also claims his sentence

was harsh and excessive. We discern no basis to disturb the discretion of the

sentencing court. Accordingly, we affirm.

      We derive the facts of the case from the trial court’s opinion, its Findings

of Fact and Conclusions of Law re: Defendant’s Motion to Suppress, and our

independent review of the record.       (See Trial Court Opinion, 11/29/17;

Findings of Fact and Conclusions of Law, 11/08/16).        The facts are not in

dispute. (See N.T. Sentencing, 8/18/17, at 18).

      In May of 2013, the Philadelphia Office of Homeland Security

Investigations received a report from the National Center for Missing Children
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* Retired Senior Judge assigned to the Superior Court.
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that an America Online user had uploaded apparent images of child

pornography.       The investigation eventually led to Appellant.    Homeland

Security executed a search warrant at Appellant’s residence, resulting in the

seizure of electronic equipment, which contained thousands of images and

hundreds of videos of child pornography.         Some of the videos showed

Appellant engaging in sex acts with his minor half-sister.1 Appellant does not

dispute that he began sexually assaulting his sister when she was about three.

These assaults eventually involved sexual intercourse. The whole course of

events continued for about ten years. Appellant videotaped many of these

episodes.

       Homeland Security initiated charges against Appellant in federal court,

for child pornography. Appellant filed a motion to suppress, which, notably

for this appeal, the district court denied. The denial of the motion to suppress

was affirmed on appeal to the Third Circuit. (See United Sates of America

v. Joseph Townsend, No. 14-4667 (Third Circuit Opinion filed May 16,

2016).2 Appellant received a federal sentence of 262 months (twenty-one



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1 Appellant was born in 1987. His half-sister was born in 2000. The sexual
activities began when the half-sister was three. Appellant was convicted of
rape of a child under the age of thirteen. Appellant claimed he did not have
intercourse with her until she was thirteen. He does not raise this issue on
appeal.

2Accordingly, Appellant’s conviction of the child pornography-related charges
was affirmed, but the case was remanded to allow the district court to correct
a miscalculation of the sentence.

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years and ten months) of incarceration in federal prison, followed by fifteen

years of supervised probation.

       In the instant action, Appellant was charged in state court with rape of

a child (under thirteen) and related offenses. He filed a similar motion to

suppress in the Court of Common Pleas of Montgomery County. The parties

agreed to use the notes of testimony from the federal hearing on the motion

to suppress in lieu of a full second hearing in state court. The trial court denied

the motion. After a stipulated bench trial, the court found Appellant guilty of

one count of rape of a child. The Commonwealth nolle prossed the numerous

remaining charges.

       The trial court, noting that it had the benefit of a presentence

investigation report, sentenced Appellant to a term of not less than twenty

nor more than forty years of incarceration in a state correctional facility,

followed by fifteen years of probation, to be served consecutively to the federal

sentence.      The court denied Appellant’s motion for reconsideration of

sentence. This timely appeal followed.3

       Appellant presents two questions on appeal, albeit framed as narrative

statements. See Pa.R.A.P. 2116. We reproduce both questions verbatim.

             1. The trial court erred in denying Appellant’s suppression
       motion as argued before the trial court on November 4, 2016,
       asserting, inter alia, that the search of Appellant’s home
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3Appellant filed a court-ordered statement of errors complained of on appeal
on October 24, 2017. As previously noted, the trial court filed its opinion on
November 29, 2017. See Pa.R.A.P. 1925.

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      conducted by the Department of Homeland Security failed to
      minimize unwarranted intrusions upon the defendant’s privacy.
      Appellant also incorporates the issues and arguments raised
      during the hearing in the United States District Court for the
      Eastern District of Pennsylvania which this Court considered in the
      findings of fact and conclusion of law issued on November 8, 2016.

           2. Appellant      challenges   the   discretionary   aspects   of
      sentencing.

(Appellant’s Brief, at 7).

      Preliminarily, we note that in his first claim Appellant purports to

incorporate by reference the issues and arguments he raised in federal court.

This is a deficient procedure not compliant with our appellate rules.          See

Commonwealth v. Rodgers, 605 A.2d 1228 (Pa. Super. 1992), appeal

denied, 615 A.2d 1311 (Pa. 1992):

      We find these averments wholly inadequate to facilitate
      substantive review of the issue because an appellate brief is
      simply not an appropriate vehicle for the incorporation by
      reference of matter appearing in previously filed legal documents.
      See Commonwealth v. Osteen, 381 Pa. Super. 120, 124, 552
      A.2d 1124, 1126 (1989). The argument portion of an appellate
      brief must include a pertinent discussion of the particular point
      raised along with citation to pertinent authorities. Pa.R.A.P., Rule
      2119(a), 42 Pa.C.S.A. As appellant’s contentions have not been
      appropriately developed, we deem the argument waived under
      Commonwealth v. Nelson, [567 A.2d 673, 676 (Pa. Super.
      1989), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1990)].

Rodgers, supra at 1239.

      Accordingly, here, any issues Appellant attempted to incorporate by

reference are waived. We will review only the issues Appellant actually raises

in this appeal.




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      Next, we note that in his first claim Appellant complains that the

Homeland Security agents who executed the search warrant “failed to

minimize unwarranted intrusions” into his privacy. (Appellant’s Brief, at 7).

Notably, he concedes that the search warrant was valid. (See id. at 15). It

also bears noting that Appellant fails to identify any specific invasion of his

privacy (other than the discovery of more child pornography). Instead, he

asserts that the execution of the search was overbroad, which he repeatedly

characterizes as “rummaging.” (Appellant’s Brief, passim). We disagree.

      On independent review, we conclude that Appellant’s brief fails to

develop a claim of identifiable trial court error, much less support it with

citation to pertinent authority.    We agree with the Commonwealth that

“[Appellant’s] suppression argument is less than a model of clarity.      It is

convoluted, rambling, and fraught with irrelevant and redundant analysis.”

(Commonwealth’s Brief, at 6).

      To cite only one example, Appellant’s brief purports to review the

American colonists’ objection to general writs of assistance. (See Appellant’s

Brief, at 24). Within the span of two or three sentences the brief jumps from

James Otis to the writings of John Adams to the debates of Patrick Henry to

the bald assertion that here the search of a thumb drive was a “fishing

expedition.” (Id.).




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        A review of the historical antecedents in the Common Law leading up to

ratification of the Fourth Amendment may be of general historical interest.4

However, undeveloped passing references to James Otis, John Adams and

Patrick Henry fail to identify trial court error here, or establish the basis for

appellate relief in this case. Appellant fails to develop an argument in support

of the claim raised.       See Pa.R.A.P. 2119(a), (b), and (c).     Accordingly,

Appellant’s claim is waived.

        Moreover, Appellant’s sole discernible claim would not merit relief. His

repeated reliance on citation to United States v. Stabile, 633 F.3d 219, 239

(3d Cir. 2011), cert. denied, 565 U.S. 942 (2011), is misplaced.5 Appellant

maintains, in effect, that a constitutional computer search must be limited to

the specific items expressly identified in the warrant. (See Appellant’s Brief,

at 21-24).




____________________________________________


4For a succinct summary of these concepts, see Warden, Md. Penitentiary
v. Hayden, 387 U.S. 294, 325 (1967) (Douglas, dissenting); see also
Buonocore v. Harris, 65 F.3d 347, 353 (4th Cir. 1995).

5   See Eckman v. Erie Ins. Exch., 21 A.3d 1203 (Pa. Super. 2011):

              At the outset we observe that it is well-settled that this
        Court is not bound by the decisions of federal courts, other than
        the United States Supreme Court, or the decisions of other states’
        courts. We recognize that we are not bound by these cases;
        however, we may use them for guidance to the degree we find
        them useful and not incompatible with Pennsylvania law.

Id. at 1207 (citations omitted).

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      In fact, Stabile concludes the virtual opposite of Appellant’s assertions.

See Stabile, supra at 239). Citing numerous cases, in particular, United

States v. Burgess, 576 F.3d 1078, 1092 (10th Cir. 2009), cert. denied, 558

U.S. 1097 (2009), Stabile concluded, “[T]here may be no practical substitute

for actually looking in many (perhaps all) folders and sometimes at the

documents contained within those folders, and that is true whether the search

is of computer files or physical files.” See Stabile, supra at 237 (additional

citations omitted).

            While [o]fficers must be clear as to what it is they are
      seeking on the computer and conduct the search in a way that
      avoids searching files of types not identified in the warrant, a
      computer search may be as extensive as reasonably
      required to locate the items described in the warrant based
      on probable cause.

Burgess, supra at 1092 (emphasis added) (citations and internal quotation

marks omitted). Appellant’s first claim is waived, and would not merit relief.

      In Appellant’s second claim, he challenges his sentence as excessive,

harsh, and not in conformity with the Sentencing Code.          (See Appellant’s

Brief, at 7, 29).     He claims the sentencing court imposed a manifestly

unreasonable sentence without considering mitigating circumstances and

rehabilitation factors. (See id. at 33-42). Appellant notes that he has a prior

record score of zero, that he is remorseful, and willing to get professional help.

Appellant adds a narrative of a troubled childhood, including gender identity

and sexual orientation issues, taunting by school classmates, and a ridiculing

father, all aggravated by family disputes, and ultimately, divorce.

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      It is well-settled that a challenge to the discretionary aspects of a

sentence is a petition for permission to appeal, as the right to pursue such a

claim is not absolute. See Commonwealth v. Treadway, 104 A.3d 597,

599 (Pa. Super. 2014). Before this Court may review the merits of a challenge

to the discretionary aspects of a sentence, we must engage in the following

analysis:

                  [W]e conduct a four part analysis to determine: (1)
            whether 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
            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).

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

omitted).

      We note that here Appellant has met the first three parts of the four-

prong test. Appellant filed a timely appeal. Appellant preserved the issue in

a post-sentence motion.        (See Motion to Reconsider Sentence, 8/28/17).

Appellant included a statement pursuant to Pa.R.A.P. 2119(f) in his brief.

(See Appellant’s Brief, at 30-32). Thus, we next assess whether Appellant

has raised a substantial question with respect to the issue he presents.

      Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-case




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basis.     See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001), appeal denied, 796 A.2d 979 (Pa. 2002).

         As to what constitutes a substantial question, this Court does not accept

bald assertions of sentencing errors. See Commonwealth v. Malovich, 903

A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons

the sentencing court’s actions violated the Sentencing Code.         See id.   “A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citations omitted).

         “Where pre-sentence reports exist, we shall . . . presume that the

sentencing judge was aware of 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.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014) (quoting Commonwealth v. Devers, 519

Pa. 88, 546 A.2d 12, 18 (1988)).

         Here, Appellant claims that the trial court applied the Sentencing

Guidelines erroneously. (See Appellant’s Brief, at 31).




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      “A claim that the sentencing court misapplied the Sentencing Guidelines

presents a substantial question.” Commonwealth v. Cook, 941 A.2d 7, 11

(Pa. Super. 2007) (citation omitted).     Therefore, we will grant Appellant’s

petition for allowance of appeal and address the merits of his claim.

      Our standard of review in appeals of sentencing 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.

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008) (citation

omitted).

      A sentencing judge has broad discretion in determining a reasonable

penalty, and appellate courts afford the sentencing court great deference, as

it is the sentencing court that is in the best position to view the defendant’s

character, displays of remorse, defiance, or indifference, and the overall effect

and nature of the crime. See Commonwealth v. Walls, 926 A.2d 957, 961

(Pa. 2007).

      When imposing a sentence, the sentencing court must consider “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.A. § 9721(b). This Court has stated, “[A] court

is required to consider the particular circumstances of the offense and the

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character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.

Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545

U.S. 1148 (2005) (citation omitted). In particular, the sentencing court should

refer to the defendant’s prior criminal record, his age, personal characteristics,

and his potential for rehabilitation. See id.

       Here, Appellant contends that the sentencing court erred because his

prior record score is zero and he was remorseful. (See Appellant’s Brief, at

33). Appellant argues that, combining the aggregate term of incarceration

imposed by the sentencing court and the sentence from the federal court, he

will be required to serve fifty-six years before he is eligible for parole, by

which, if he survives, he will be over eighty. (See id.). He observes that by

agreeing to a stipulated bench trial he spared the victim, his half-sister, the

trauma of testifying in court. (See id. at 38).

       We note at the outset of our analysis that Appellant fails to establish a

proper basis for challenging his state sentence based on the federal sentence.6

Additionally, it bears noting that Appellant was convicted of separate offenses

in the two separate actions.         In any event, Appellant is not entitled to a

“volume discount” for his multiple offenses. See Commonwealth v. Prisk,


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6 Compare United States v. Napolitan, 830 F.3d 161, 166 (3d Cir. 2016)
(holding appellant may not collaterally attack state court sentence as part of
a federal sentencing challenge unless (1) he claims a Gideon [v.
Wainwright, 372 U.S. 335 (1963)] violation, or (2) relevant federal statute
or sentencing guideline expressly authorizes collateral attack).


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13 A.3d 526, 533 (Pa. Super. 2011) (affirming, on differing facts, aggregate

sentence of not less than six hundred thirty-three (633) to not more than one

thousand five hundred (1500) years’ imprisonment for systematic sexual

abuse of stepdaughter over six years); see also Commonwealth v. Hoag,

665 A.2d 1212, 1214 (Pa. Super. 1995) (appellant not entitled to a “volume

discount”).

      In this case, after the sentencing court reviewed the presentence report

and the sentencing guideline ranges, it thoroughly addressed its reasons for

imposing a sentence at the top of the standard range. The court noted that

“This is one of the most egregious set of circumstances I have ever had to

deal with.”   (N.T. Sentencing, 8/18/17, at 17).        The sentencing court

specifically noted Appellant’s inability to keep his impulses in check, and the

consequent undue risk of reoffending.        (See id. at 18).   The court also

expressed its concern that a lesser sentence would depreciate the seriousness

of Appellant’s crime. (See id. at 19).

      On independent review of the record, we conclude that the sentencing

court properly considered the relevant statutory criteria, and presented

adequate reasons for imposing the instant sentence on Appellant. We discern

no proper basis for disturbing the discretion of the sentencing court.

      Hence, we conclude this claim lacks merit. Based on the foregoing, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18




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