J-S81023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    DAVID TODOROFF

                             Appellant                  No. 847 MDA 2017


        Appeal from the Judgment of Sentence imposed March 28, 2017
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0001600-2016


BEFORE: PANELLA, STABILE, and PLATT, JJ.*

MEMORANDUM BY STABILE, J.:                             FILED MARCH 27, 2018

        Appellant, David Todoroff, appeals from the judgment of sentence

imposed on March 28, 2017 in the Court of Common Pleas of Dauphin County,

following his conviction of eight counts of invasion of privacy, 18 Pa.C.S.A.

§ 7507.1(a)(1).      Appellant contends the trial court imposed an excessive

sentence. We disagree and, therefore, affirm.

        In its rule 1925(a) opinion, the trial court explained:

              On December 22, 2016, [Appellant] entered into an open
        plea agreement to 8 counts of invasion of privacy[.] The charges
        arose out of [Appellant] having secretly placed a cell phone in the
        employee restroom of his podiatric office and in his home to
        photograph and film women while they were fully or partially
        nude. [Appellant’s] conduct was discovered when an office

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     employee noticed a cell phone on the floor of the restroom. Over
     the course of approximately 7 years, [Appellant] had obtained
     photographs of female office staff, a family friend and her minor
     daughters, as well as his own daughter, as they changed clothes
     or utilized the restroom. [Appellant] uploaded and stored many
     images on his computer.

            On March 28, 2017, the court imposed 8 consecutive
     sentences of 8-24 months, that is, an aggregate sentence of not
     less than 64 months nor more than 192 months in a state
     correctional institution. The court further ordered that [Appellant]
     is to have no contact with the victims, that he abide by the court
     approved special conditions for sexual offenders, register under
     the Pennsylvania Megan’s Law and abide by the sexual offender
     registration procedures. The court sentenced [Appellant] within
     the statutory maximum term of punishment, outside of the
     aggravated range.

Trial Court Opinion, 8/10/17, at 1-2 (footnotes and some capitalization

omitted).

     Appellant filed a motion seeking modification of his sentence. The trial

court denied the motion on April 28, 2017. This timely appeal followed. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant asks us to consider one issue on appeal:

     Was the imposition of an aggregate sentence of 64 to 192
     months[’] incarceration clearly unreasonable, so manifestly
     excessive as to constitute an abuse of discretion, and inconsistent
     with the protection of the public, the gravity of the offenses, and
     Appellant’s rehabilitative needs where the [c]ourt imposed
     consecutive jail sentences on eight counts?

Appellant’s Brief at 6.   As such, Appellant presents a challenge to the

discretionary aspects of sentence.

     “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

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167 A.3d 793, 815 (Pa. Super. 2017) (citation omitted). Before we can reach

the merits of a discretionary aspects challenge,

      [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).

Id. at 815-16 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006) (citations omitted)).   Here, Appellant filed a timely notice of

appeal, preserved the issue in a motion to modify the sentence, and included

a statement in compliance with Pa.R.A.P. 2119(f).        Therefore, we must

determine whether Appellant has presented a substantial question that his

sentence is not appropriate under the Sentencing Code. “The determination

of what constitutes a substantial question must be evaluated on a case-by-

case basis.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015) (en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.

Super. 2011)).

      In Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002), our Supreme

Court explained that our Court need not accept bald allegations of

excessiveness as sufficient to present a substantial question. Id. at 627.

      Rather, only where the appellant’s Rule 2119(f) statement
      sufficiently articulates the manner in which the sentence violates
      either a specific provision of the sentencing scheme set forth in
      the Sentencing Code or a particular fundamental norm underlying
      the sentencing process, will such a statement be deemed

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       adequate to raise a substantial question so as to permit a grant of
       allowance of appeal of the discretionary aspects of the sentence.
       See [Commonwealth v. Koehler, 737 A.2d 225, 244 (Pa.
       1999)] (party must articulate why sentence raises doubts that
       sentence was improper under the Sentencing Code);
       [Commonwealth v. Saranchak, 675 A.2d 268, 277 n. 18 (Pa.
       1996)] (“Appellant must, at a minimum, explain specifically why
       he thinks his sentences were improper”); [Commonwealth v.
       Goggins, 748 A.2d 721, 727 (Pa. Super. 2000)] (appellant need
       only make a plausible argument that a sentence is contrary to the
       Sentencing Code or the fundamental norms underlying the
       sentencing process).

Id. at 627-28 (emphasis in original).

       In his Rule 2119(f) statement, Appellant contends his aggregate

sentence of 64 to 192 months is “manifestly excessive” even though it was

within the sentencing guidelines. Appellant’s Brief at 14. He argues the trial

court improperly “focused solely on the nature of the criminal conduct and the

need to protect others” and that, “[g]iven Appellant’s history and background,

the application of the guidelines would be clearly unreasonable.” Appellant’s

Brief at 17, 16.     He also asserts the trial court failed to consider mitigating

factors,   including    Appellant’s    lack    of   criminal   record,   acceptance   of

responsibility for his actions, and undertaking of treatment. Id. at 17.1

       “[A] defendant may raise a substantial question where he receives

consecutive sentences within the guideline ranges if . . . application of the



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1This Court has held that “[a]n allegation that the sentencing court failed to
consider certain mitigating factors generally does not necessarily raise a
substantial question.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010) (citation omitted).

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guidelines   would   be   clearly   unreasonable,   resulting   in   an   excessive

sentence[.]” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.

2013) (emphasis in original). Recognizing that Appellant need only make a

plausible argument that the sentence is contrary to the Sentencing Code or

the fundamental norms underlying the sentencing process, see Goggins, 748

A.2d at 727, we find Appellant has raised a substantial question. Therefore,

we shall consider the merits of his claim.

      “In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court’s decision under an abuse of discretion standard.”

Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011) (citation

omitted).    Further, “this Court’s review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d).” Commonwealth v. Macias, 968 A.2d 773, 776-77 (Pa. Super. 2009).

      Section 9871(c) directs:

      The appellate court shall vacate the sentence and remand the case
      to the sentencing court with instructions if it finds:

         (1) the sentencing court purported to sentence within the
         sentencing   guidelines   but   applied  the   guidelines
         erroneously;

         (2) the sentencing court sentenced within the sentencing
         guidelines but the case involves circumstances where the
         application of the guidelines would be clearly unreasonable;
         or

         (3) the sentencing court sentenced outside the sentencing
         guidelines and the sentence is unreasonable.




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     In all other cases the appellate court shall affirm the sentence
     imposed by the sentencing court.

42 Pa.C.S.A. § 9871(c).

     In the case before us, there is no suggestion the sentencing court

erroneously applied the guidelines or imposed an unreasonable sentence

outside the sentencing guidelines.   Therefore, Appellant must demonstrate

that the trial court abused its discretion by imposing a sentence within the

guidelines, but that the application of the guidelines is rendered clearly

unreasonable by the circumstances of the case. 42 Pa.C.S.A. § 9871(c)(2).

     In its Rule 1925(a) opinion, the trial court explained:

     [T]he record reflects that this court properly considered relevant
     sentencing factors and stated at length, on the record, its reasons
     for the sentence. We considered information contained in the pre-
     sentence investigation report, letters and in-court statements of
     the victims, and the statements of [Appellant]. As to the gravity
     of the offense in relation to its impact on the victims, we found
     compelling the victims’ statements of the emotional devastation
     [Appellant’s] actions caused. We noted that the words “invasion
     of privacy” alone inadequately reflect the harm [Appellant]
     caused, which the victims will endure for years, if not a lifetime.
     [Appellant’s] betrayal of the trust of devoted employees, family
     friends and his daughter left those victims with profound
     humiliation, embarrassment and sense of violation. Several
     victims expressed fear of trusting others or using restrooms
     outside their homes.

     This court found particularly troubling that [Appellant] engaged in
     such conduct for many years while at the same time engendering
     trusted relations.

     We recognize that [Appellant] voluntarily began counseling prior
     to sentencing and that he expresses remorse. However, a lesser
     sentence would nominalize [Appellant’s] egregious conduct and
     the damage it inflicted upon the victims.


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Trial Court Opinion, 8/10/17, at 4-5 (some capitalization and references to

notes of testimony omitted).

       When reviewing the record, we are required to have regard for:

       (1) The nature and circumstances of the offense and the history
       and characteristics of the defendant.

       (2) The opportunity of the sentencing court to observe the
       defendant, including any presentence investigation.

       (3) The findings upon which the sentence was based.

       (4) The guidelines promulgated by the commission.

42 Pa.C.S.A § 9781(d).

       Our review of the record provides sufficient information for us to

understand the nature of the circumstances surrounding Appellant’s offenses

as well as Appellant’s history and characteristics. Here, we have a doctor of

podiatry with no criminal record, a married father of two daughters who are

now in their 20s.2 While he was in his late 40s and early-to-mid 50s, he used

a cell phone to photograph and video female employees while they were using

an office bathroom and did so as well with a family friend and her daughters—

and his own daughter—in a bathroom at his residence while they were

changing clothes before and after using a hot tub. He uploaded several of the




____________________________________________


2As of the time of sentencing, he was estranged from “his entire family.
Soon—the divorce is soon to be final.”    Notes of Testimony (“N.T.”),
Sentencing, 3/28/17, at 12.

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images to his computer, including one of his daughter that was date-stamped

2008.

        Following his arrest, he voluntarily surrendered his medical license and

sold his share of the podiatric practice. On recommendation of counsel, he

completed a ten-week inpatient program at a facility in Texas.            Upon

completion of that program, he returned to Pennsylvania in January 2016 and

enrolled in a sexual addiction counseling program for one-on-one and group

sessions. He also enrolled in another sex addiction treatment program that

entailed sessions with a psychologist.      Finally, he began attending weekly

spiritual counseling at a community church. Meanwhile, he secured two jobs,

one working for a contractor and the other as a night manager for a grocery

store. In the words of his counsel, “[H]e has owned his problem. He has

taken it very seriously.” N.T., Sentencing, 3/28/17, at 15. “He accepts full

responsibility for his actions.” Id. “He is devastated by losing his family, his

daughters, and his practice. And he understands that he violated the privacy

of people very close to him.” Id.

        Appellant gave a statement to the trial court, in which he admitted he

“made some very poor choices.” Id. at 16. He acknowledged his behavior

was “wrong” and that he “was wrong not to seek professional help.” Id. He

stated he did not “ever want to act like that again” and that he had “taken

certain steps to ensure that [he would] never act this way again or offend

anyone in any way, shape of form.” Id. at 16-17. He explained:


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     [Appellant]: And as words can’t express, the words I’m sorry
     doesn’t even come close to how I feel. I regret that I acted in a
     manner that was just so – so male.

     [The court]: So what?

     [Appellant]: Excuse me?

     [The court]: You acted in a manner that was so?

     [Appellant]: My maleness came out. I wasn’t a man in all this.

N.T., Sentencing, 3/28/17, at 18.

     Appellant expressed his regret for his actions but not for being caught,

“because I was not able to get myself out of this. I was unable to take my

hijacked brain and get it out of this nonsense.” Id. He continued, noting:

     . . . I’ve completely surrendered. I’ve completely repented, and
     for 17 months I finally feel free from this addiction. . . . I’m
     thankful that [God is] finally molding me into a man he wanted
     me to be, but regretful that it’s taken such a terrible toll on my
     relationships.

Id. at 18-19.

     At sentencing, letters from some of Appellant’s victims, including his

daughter, were read into the record, conveying the devastating impact

Appellant’s actions had on their lives and how he betrayed their trust. His

daughter wrote, in part:

     Some might not understand the gravity of that secret camera; it’s
     just a video clip or a photo. But that couldn’t be further from the
     truth. When making the conscious decision to invade someone’s
     privacy on such a deep level, one chooses personal gain and
     trades it in for someone else’s self-worth, self-image, and any
     illusions one might have of being safe and cared for.

     ...

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       He was the one who was supposed to keep his daughter safe from
       these people.

       ...

       I feel like I was raped.

       Yes, that’s how I feel.

       Because in all of my nightmares, I can’t escape his presence. He
       follows me everywhere, watching me. I’m completely naked, and
       I can’t move, and he is free to stand there and look at me, come
       closer if he wants to.

Id. at 7-8.

       In the words of his long-time primary office assistant:

       This was not just a one-time experiment. This was a carefully
       thought out plan, with the placement and angle of the phone just
       in the right place. This was a violation of one’s privacy over and
       over again, which involved multiple victims.

       All respect is lost and there will never be trust again. Feelings of
       violation, disgust, betrayal, hatred, and frustration are constantly
       at the surface.

       ...

       [Appellant] has been secretly videotaping victims for seven years,
       which happened to include minors. How do you trust that it
       wouldn’t happen again? I ask on behalf of all the victims involved
       that you take into consideration the length of time this was being
       committed and where – workplace and home – and how well the
       phones were hidden.

Id. at 10.3
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3 We note that letters on behalf of Appellant were attached to Appellant’s
motion for modification of his sentence. A letter from the Texas inpatient
facility indicates Appellant was a patient from November 21, 2015 until



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       As illustrated above and as required by 42 Pa.C.S.A. § 9871(d)(1), when

reviewing the record, we have given due consideration to the nature and

circumstances      of   the   offenses     as   well   as   Appellant’s   history   and

characteristics.    Further, it is clear the trial court had the opportunity to

observe Appellant and to review the presentence investigation as required by

§ 9871(d)(2). From the sentencing transcript and the trial court opinion, we

are able to ascertain the findings upon which the sentence was based, and we

have given due regard to those findings in accordance with § 9871(d)(3).

Finally, as the trial court explained, the guidelines provided for a sentence of

up to 24 months for each of Appellant’s convictions and we acknowledge those

guidelines, in compliance with § 9871(d)(4).




____________________________________________


January 29, 2016, “and discharged Treatment Complete.”                Motion for
Modification, Exhibit D, 4/6/17, at 1. In another letter, a psychologist at the
facility where Appellant began counseling after his discharge from the Texas
in-patient program related the number of psychotherapy sessions Appellant
attended and noted, “[Appellant] reports that he has devoted himself to a
wide variety of recovery activities.” Motion for Modification, Exhibit B, 4/6/17,
at 1. “In summary, based upon his self-reports, [Appellant] continues doing
all things necessary to focus upon, and sustain, his recovery. His chances of
maintaining this trajectory appear to remain good[.]” Id. A third letter is
from a counselor who explained the out-patient treatment program and
indicated Appellant “has been very active in group counseling.” Motion for
Modification, Exhibit C, 4/6/17, at 1. The letter explains Appellant “has
attended twelve step meetings and identifies the positive support that arises
from attendance of the meetings. He is planning to continue to attend the
meetings while identifying ways in which he can build community and establish
healthy plans for the future.” Id.

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      As this Court recognized in Commonwealth v. Allen, 24 A.3d 1058

(Pa. Super. 2011):

      The sentencing court has broad discretion in sentencing a
      defendant. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.
      Super. 2000). This Court, therefore, accords the sentencing judge
      great deference as it is the sentencing judge 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. Id. A sentencing 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. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super.
      2010).

Id. at 1065.

      Our review leads us to conclude that imposition of consecutive

sentences for each of Appellant’s convictions clearly was not unreasonable.

Finding no abuse of discretion on the part of the trial court, or any basis for

vacating and remanding the case under 42 Pa.C.S.A. § 9871(c) as discussed

above, we shall not disturb the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/27/2018




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