J-S39014-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DIONNE HENDERSON,

                        Appellant                   No. 1263 EDA 2014


        Appeal from the Judgment of Sentence November 15, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008614-2009




BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 07, 2015

      Dionne Henderson appeals from the aggregate judgment of sentence

of sixty to 120 years incarceration after a jury found him guilty of rape of a

child, involuntary deviate sexual intercourse (“IDSI”) of a child, aggravated

indecent assault of a child, unlawful contact with a minor, incest,

endangering the welfare of a child (“EWOC”), indecent assault, and

corruption of a minor. We affirm.

      The facts in this matter involve Appellant’s decade long sexual abuse

of his daughter, beginning when she was four years old. Appellant initially

began by inappropriately touching the victim’s buttocks overtop her clothing.

The touching then escalated to touching the victim’s clitoris, placing his
J-S39014-15



hands between her labia, and putting his mouth on her breasts during bath

time. After the victim turned eight or nine years of age, the sexually deviant

behavior increased. Appellant kept the victim home from school on occasion

to be alone with the victim. In one incident, Appellant touched but did not

penetrate the victim’s vagina with his fingers and tried to put his penis

between the victim’s breasts, but they were not fully developed. Appellant

also touched the victim’s rectum and placed his mouth on the victim’s

vagina. According to the victim, she would complain to Appellant when he

would try and insert his finger into her vagina.

      On another occasion, Appellant penetrated the victim’s vagina with his

finger.   Appellant also began to force the victim to perform oral sex and

would ejaculate in the victim’s mouth.     The victim set forth that Appellant

told her how to perform oral sex without her teeth touching his penis. The

sexual abuse escalated to vaginal intercourse when the victim was ten or

eleven. The victim indicated that the first time Appellant engaged in vaginal

intercourse, he began by caressing and kissing her before kissing her vaginal

area. He initially penetrated her vagina with his finger before inserting his

penis and having intercourse. The intercourse caused her to have vaginal

bleeding. In addition, the victim asserted that the Appellant always prefaced

subsequent vaginal intercourse with making the victim perform oral sex.

The last instance of abuse occurred when the victim was fourteen. Appellant

made the victim perform oral sex on him and caused her to gag by shoving

                                     -2-
J-S39014-15



his penis inside her mouth.    Afterward, Appellant forced the victim over a

dryer and engaged in vaginal sex.

     The victim first reported these incidents on April 19, 2009, several

days after the last sexual violation transpired.     She initially left home

because her father told her that he was going to beat her for failing to wear

the appropriate Muslim garb.    The victim went to her step-grandmother’s

home, approximately a three-hour walk away, and told her step-aunt that

Appellant was putting his hands on her. When her aunt asked her if she was

being sexually abused, she did not respond, and looked down.        Believing

sexual abuse may have occurred, the aunt reported the matter to police.

The victim provided police with a statement regarding the sexual abuse and

was taken to a hospital for an examination. She related the sexual abuse to

a nurse and her aunt, and the exam showed that the victim had a tear at the

bottom of the entrance to her vagina and a swollen red cervix. Testimony at

trial revealed that the tear was consistent with a history of vaginal

penetration.

     Appellant initially proceeded to a jury trial on November 15, 2010.

However, on November 17, 2010, the court found him incompetent after a

courtroom outburst.   Subsequently, Appellant was found competent and a

new trial began on November 8, 2012. The court declared a mistrial that

same day when the victim inadvertently testified that Appellant had been




                                    -3-
J-S39014-15



released from jail before one of the assaults. A new trial started the next

day, but the jury was unable to reach a verdict.

     Trial again commenced on June 13, 2013 and the jury returned guilty

verdicts on June 19, 2013. The court imposed sentence on November 15,

2013. Specifically, the court imposed the maximum sentences of twenty to

forty years incarceration for both rape of a child and IDSI of a child.   In

addition, the court imposed maximum sentences of ten to twenty years

imprisonment for aggravated indecent assault and unlawful contact with a

minor. The court also sentenced Appellant to five to ten years incarceration

for incest, and three and one-half to seven years imprisonment for EWOC

and indecent assault. Finally, the court sentenced Appellant to two and one-

half to five years incarceration for corruption of a minor. The court ordered

each sentence to run consecutively.       Each sentence imposed was the

maximum allowable by statute.

     Appellant filed a timely post-sentence motion, which was denied by

operation of law.    This timely appeal ensued.     The trial court directed

Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Appellant complied, and the trial court authored a

Rule 1925(a) opinion.     The matter is now ready for our consideration.

Appellant’s sole contention on appeal is, “Did the Honorable Court abuse its

discretion at [the] time of sentencing when it sentenced this Defendant to

the maximum term on all of the lead offenses, and then made them run

                                    -4-
J-S39014-15



consecutively for an aggregate sentence of sixty to one hundred twenty

years?” Appellant’s brief at 3.

      Appellant’s claim implicates the discretionary aspects of his sentence.

To preserve such a sentencing claim, the defendant must raise the issue

either in a post-sentence motion, or during the sentencing proceedings.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en

banc). In addition, a defendant must “preserve the issue in a court-ordered

Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.”

Id. Moreover, “[t]here is no absolute right to appeal when challenging the

discretionary aspect of a sentence.”     Cartrette, supra at 1042.       “[A]n

appeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Id.        In considering the merits of a discretionary

sentencing matter, we review the sentencing court’s decision for an abuse of

discretion.     Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.

2013). In performing this review, we consider the statutory requirements of

42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides that this Court

shall vacate a sentence and remand under three circumstances:

     (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



                                     -5-
J-S39014-15



          application of the guidelines would be clearly unreasonable;
          or

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

42 Pa.C.S. § 9781(c). Further, we examine:

     (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. § 9781(d).

     Appellant, in his post-sentence motion, asserted that the sentencing

court failed to state reasons for imposing sentence and that the sentence

imposed was unduly harsh.      Thereafter, Appellant, in his Rule 1925(b)

statement, raised a sentencing issue: “The Defendant should be remanded

to the Sentencing Court for a new sentencing hearing, as the Court abused

its discretion in sentencing the defendant while imposing an excessively

harsh sentence that was inconsistent with sentencing norms.”     Appellant’s

Pa.R.A.P. 1925(b) concise statement.

     Appellant has also provided a Pa.R.A.P. 2119(f) statement.    Therein,

Appellant avers that the sentence was in excess of the sentencing guidelines

and was unreasonable. Appellant asserts that the sentence was manifestly

excessive since the court imposed, in essence, a life sentence when he was

                                   -6-
J-S39014-15



not found guilty of murder. In addition, Appellant posits that the court only

considered the seriousness of his offenses and did not consider mitigating

facts or his individual characteristics.       Appellant also, for the first time,

contends that the court erred in imposing the maximum sentences available

because it was intended to punish him for practicing his Muslim beliefs.

Lastly, Appellant raises for the first time a claim that the court erred in not

providing a contemporaneous written statement of its reasons for imposing

the sentence above the aggravated range.

       The Commonwealth responds, with respect to issue preservation

concerns, that Appellant only preserved his excessive sentencing challenge.

It submits that Appellant’s assertion that the court failed to consider his

religion or other mitigating facts is waived. Additionally, the Commonwealth

argues that Appellant’s claim that the court did not adequately consider

mitigating facts or provide reasons for its deviation from the standard

sentencing guideline ranges is waived.

       We find that Appellant has preserved his issue relative to the

excessiveness of his sentence. However, we agree with the Commonwealth

that   Appellant’s    positions   pertaining    to   the   court     sentencing     him

inappropriately      based   on   his   religion     and   failing   to   provide     a

contemporaneous written statement of its reasons for sentencing Appellant

are waived.




                                        -7-
J-S39014-15



      To the extent Appellant averred that his sentence was excessive, we

have consistently held that bald excessiveness claims do not present a

substantial   question        for   review.     Dodge,     supra.      However,    when

accompanied by additional assertions relative to inadequate consideration of

mitigating factors, such a claim may present a substantial question for

review.   Id.     Assuming arguendo that Appellant adequately presents a

substantial question for our review relative to the aspect of his issue that he

preserved, he is entitled to no relief.

      Here,     the   trial    court   had     the   aid   of   a   presentence   report.

Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa.Super. 2006) (where

court considered a pre-sentence report, it is presumed that the court

adequately considered relevant mitigating factors).                  It was aware that

Appellant’s prior record score under the sentencing guidelines was a five.

The offense gravity score for Appellant’s rape of a child and IDSI of a child

crimes resulted in the guideline standard range reaching the statutory

maximum.

      The court was also aware of the guideline ranges for Appellant’s

remaining offenses.       The unlawful contact charge range went up to the

statutory maximum.            The standard guideline range for the aggravated

indecent assault charge was seven years to eight and one-half years. Thus,

Appellant’s ten-year minimum sentence was outside the standard range for

that offense.    The incest charge carried a standard range of four to five

                                              -8-
J-S39014-15



years; therefore, Appellant’s five-year minimum sentence for that crime was

a guideline sentence. The court’s sentences for EWOC and indecent assault

were outside the three-year aggravated range for those offenses. Similarly,

Appellant’s corruption of a minor sentence exceeded the aggravated range of

twenty-one months for that crime.

      While some of the court’s sentences exceeded the guideline ranges

and the court imposed its sentences consecutively, Appellant’s ten-year

history of abusing the victim was significant and included abuse in other

states for which he was not subject to trial in this case.          The court

considered a victim impact statement and that the victim had to testify at

multiple trials. The court also noted Appellant’s inability to be rehabilitated

and that he was a sexually violent offender with a high risk of recidivism. It

considered an arrest for a prior rape allegation.

      The court placed on the record its reasons for imposing sentences in

excess of the standard range by incorporating and quoting from a mental

health report discussing Appellant’s egocentric and narcissistic behavior at

the age of twenty-four, and highlighted that the diagnosis remained the

same despite Appellant being forty-two years old.        Moreover, the court




                                     -9-
J-S39014-15



pointed out that Appellant had shown no remorse for his actions and did not

accept responsibility. The trial court did not abuse its discretion.1

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




____________________________________________


1
  We are aware that mandatory minimum sentences were applicable to
Appellant relative to his more serious sex offenses under 42 Pa.C.S. § 9718.
Although that statute has been struck down as unconstitutional as a whole,
the court sentenced Appellant in excess of the applicable mandatory statute
for those crimes except for his aggravated indecent assault of a child
offense.   However, despite counsel actually requesting the mandatory
minimum sentences, the court did not invoke the mandatory for aggravated
indecent assault. Therefore, the sentence was not an illegal imposition of a
mandatory sentence.



                                          - 10 -
