J-S14007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
               v.                :
                                 :
                                 :
     RALPH A. ESPINOSA           :
                                 :
                    Appellant    :             No. 1433 EDA 2017
                                 :

             Appeal from the Judgment of Sentence January 4, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009956-2014


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 15, 2018

        Ralph A. Espinosa appeals from the judgment of sentence imposed

January 4, 2017, in the Philadelphia County Court of Common Pleas. The trial

court sentenced Espinosa to an aggregate term of 21 to 42 years’

imprisonment following his plea of nolo contendere to charges of rape of a

child, involuntary deviate sexual intercourse (“IDSI”) with a child, unlawful

contact with a minor, and sexual abuse of children (videotaping sexual acts),1

after he videotaped himself sexually abusing his four-year old niece.      On

appeal, he challenges only the discretionary aspects of his sentence. For the

reasons below, we affirm.

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1  See 18 Pa.C.S. §§ 3121(c), 3123(b), 6318(a)(1), and 6312(b)(1),
respectively.
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       The facts underlying Espinosa’s nolo contendere plea were summarized

by the trial court as follows:

             [Espinosa’s] sexual assault on his four year old niece, M.G.,
       was recorded on his cell phone video. At the time of the incident
       [] eighteen year old [Espinosa] was living with M.G. and her
       family. The eight (8) minutes, forty-four (44) second video
       showing the vaginal and anal rape of M.G. was discovered by her
       stepfather when he borrowed [Espinosa’s] phone. M.G.’s mother
       was immediately notified and police were called. M.G. told her
       mother that “her coo-coo (vagina) hurt and her Uncle Ralph
       ([Espinosa]) put something inside of it.” According to M.G.
       [Espinosa] was “the monster [that] left me last Saturday night.”

             The child gave further details about the sexual assault when
       interviewed at Philadelphia Children’s Alliance. D.N.A. swabs were
       taken from M.G. and [Espinosa] resulting in a vaginal D.N.A.
       match, but inconclusive as to the anal swab. [Espinosa] made a
       statement that he was high at the time of the incident and didn’t
       remember anything. When confronted with the video showing the
       sexual assault [Espinosa] identified his body parts as those of the
       male assaulting M.G., including his penis.

Trial Court Opinion, 10/30/2017, at unnumbered 2 (record citations omitted).

       Espinosa was arrested and charged with 15 offenses. On July 11, 2016,

he entered an open plea of nolo contendere to the aforementioned four

charges in exchange for which the Commonwealth nol prossed the remaining

counts. On January 4, 2017, the trial court sentenced Espinosa to a term of

10 to 20 years’ imprisonment for rape of a child, 10 to 20 years’ for IDSI, six

to 12 years’ for unlawful contact with a minor, and five to 10 years’ for sexual

abuse of children.2        The court directed that all of the sentences run
____________________________________________


2Before the hearing, Espinosa was found not to be a sexually violent predator
under the Sexual Offenders Notification and Registration Act (“SORNA”). See



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consecutively.      On January 10, 2017, Espinosa filed a motion seeking

reconsideration of his sentence, which the court denied following a hearing on

April 13, 2017. This timely appeal followed.3

        Espinosa’s sole issue on appeal is a challenge to the discretionary

aspects of his sentence. When considering such a claim, we must bear in

mind:

        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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(quotation omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Furthermore,

it is well-settled that:

        [a] challenge to the discretionary aspects of sentencing is not
        automatically reviewable as a matter of right. Prior to reaching
        the merits of a discretionary sentencing issue:
____________________________________________


42 Pa.C.S. §§ 9799.10-9799.41. Therefore, we need not remand in light of
the recent decisions of the Pennsylvania Supreme Court Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.Ct. 925 (2018), and
this Court in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017).
See Muniz, supra (holding that SORNA’s registration provisions constitute
punishment, and, therefore, the retroactive application of those provisions
violates the ex post facto clauses of the federal and Pennsylvania
constitutions); Butler, supra, 173 A.3d at 1218 (after Muniz, “trial courts
cannot designate convicted defendants SVPs[,] nor may they hold SVP
hearings[,] until our General Assembly enacts a constitutional designation
mechanism.”).

3 On September 27, 2017, the trial court directed Espinosa to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Espinosa complied with the court’s directive, and filed a concise statement on
October 16, 2017.


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           We 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. Grays, 167 A.3d 793, 815–816 (Pa. Super. 2017) (some

citations omitted), appeal denied, 178 A.3d 106 (Pa. 2018).

      In    the   present   case,   Espinosa   complied   with   the   procedural

requirements for this appeal by filing a timely post-sentence motion for

modification of sentence and subsequent notice of appeal, and by including in

his appellate brief a statement of reasons relied upon for appeal pursuant to

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P.

2119(f). Therefore, we must determine whether he has raised a substantial

question justifying our review.

      A substantial question exists when an appellant sets forth “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)

(citation omitted). Here, Espinosa argues the sentence imposed by the trial

court, although within the sentencing guidelines range, was “manifestly

excessive and unreasonable because the sentencing court only considered the



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seriousness of the crime,” and failed to take into consideration mitigating

factors including his young age, lack of a criminal record, and expression of

remorse.4 Espinosa’s Brief at 11-12. Further, he insists the court failed to

consider the relevant sentencing criteria outlined 42 Pa.C.S. § 9721. See id.

at 12. Moreover, Espinosa maintains the trial court’s comments during the

sentencing hearing evidenced a bias and prejudice against him. See id. at

15.

       “[A]n averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

substantial question.” Commonwealth v. Bricker, 41 A.3d 872, 875 (2012),

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

Moreover, although a claim the court failed to consider mitigating factors does

not generally present a substantial question,5 an “excessive sentence claim[ ]

in conjunction with an assertion that the court did not consider mitigating

factors[,]”    does    present      a   substantial   question   for   our   review.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015), appeal


____________________________________________


4 To the extent Espinosa contends the trial court failed to adequately consider
the sentencing factors listed in 42 Pa.C.S. § 9721(b), and in particular, his
rehabilitative needs, we note that he did not raise this claim during the
sentencing hearing, in his written post-sentence motion, or during argument
on his post-sentence motion. See N.T., 1/4/2017; Post Sentence Motion,
1/10/2017; N.T., 4/13/2017. Accordingly, it is waived on appeal. See Grays,
supra.

5   Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011).


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denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v. Dodge, 77

A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91 A.3d 161

(Pa. 2014).     Similarly, this Court has held that “an allegation of bias in

sentencing implicates the fundamental norms underlying sentencing and

hence, … raises a substantial question.” Commonwealth v. Corley, 31 A.3d

293, 297 (Pa. Super. 2011). Accordingly, we may proceed to an examination

of Espinosa’s argument on appeal.

       Espinosa concedes the sentence imposed by the trial court fell within

the standard range of the sentencing guidelines. See Espinosa’s Brief at 11

n.1. Therefore, we may only vacate the sentence if we find “the case involves

circumstances where the application of the guidelines would be clearly

unreasonable.” 42 Pa.C.S. § 9781(c)(2).

       In the present case, the trial court had the opportunity to review both a

pre-sentence investigation report, and a SORNA evaluation, which concluded

Espinosa did not meet the criteria for classification as a sexually violent

predator.    See N.T., 1/4/2017, at 4, 56.       Furthermore, the court heard

testimony from the mother, grandmother, and aunt of the victim, 6 two

additional character witnesses for the defense, and Espinosa himself.

Thereafter, the trial court offered the following explanation for the sentence

imposed:


____________________________________________


6 The grandmother and aunt of the victim were called as character witnesses
for Espinosa. See N.T., 1/4/2017, at 26, 33.

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           All of these cases are just so sad, what it does to the
     families. And what amazed me each time is the duality of the
     defendant. On the one hand we have the family talking about this
     loving individual who was raised to love people and animals and
     who was the favorite student in school, beloved brother, son, and
     he couldn’t possible have done this. But then there’s the monster
     that visits a four-year-old child and turns her world and her
     childhood upsidedown, the monster who sexually assaults her.
     But the audacity in this case is taken to a different, another level.
     He’s actually videotaping it, further taking away that child’s
     dignity. You videotape it for a prolonged period of time.

           And that’s one of the saving graces in this case, that you did
     not put that child through a trial, where other people had to see
     that video, jurors, the Court. So that is one of the saving graces
     we have, that the victimization stopped with those in law
     enforcement who had to endure that, the child’s mother who had
     to endure seeing her beloved child raped by her brother.

           But by the same token, you hide behind the cloak of PCP
     induced high or marijuana cigarette induced high where you claim
     you can’t remember. But, again, the videotaping kind of takes
     away from that. Because that’s calculated. Who does that? Who
     does that? And the lubricant. So this was in your heart and mind.
     And that sweet little child that came in here this morning, the
     innocence, the vulnerability, the trust that she must have had in
     you.

            And what makes it even worse is what it’s done to this
     family. There’s no reason for there to be sides. They can come
     visit you and be supportive, but they can also be supportive of
     that child and her mother. It’s a disgrace, a disgrace, that this
     family has allowed this to happen to this child and that child’s
     mother, who is part of you. And I would hope and pray that from
     here on out you do something to mend that. Again, as I said
     earlier, it’s by stopping with the denial. Because he did this. And
     you need to accept that, and you need to move on from that and
     try to heal and be supportive of that child who is six years old.

           Now I don’t know what’s going on in terms of what her
     memory of it is or how it’s impacted her, although her mother has
     indicated that there’s some behavior issues at this point. But she
     has to live with this for the rest of her life. So you need to be
     there for her, period. Acknowledge that this has happened and
     help her heal.


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            It also amazes me that the mother in this situation can be
      forgiving. I don’t know if I could do that. I see her there, she’s
      torn apart, because she’s a part of you, this family. She loves her
      brother, the monster who visited her child, and is forgiving of him.
      So this is just truly such a sad situation, that for nine minutes,
      almost, that we cannot replay or take away or heal, that your
      actions caused all of this.

             So the sentence of the Court—and I’m taking into account
      all of the reports, the presentence, the psychiatric, the Megan’s
      [Law] report, the testimony of both sides, the fact that you did
      spare the child a trial in this matter, things that went on in your
      background, your issues.

N.T., 1/4/2017, at 53-56.

      As noted above, Espinosa contends the court imposed an excessive

sentence based solely on the gravity of the offense, and absent sufficient

consideration of mitigating factors, such as his age and lack of criminal history.

He insists a court must impose a sentence “based on the minimum amount

of confinement” consistent with the sentencing criteria set forth in 42 Pa.C.S.

§ 9721(b), namely “the gravity of the offense, the need of the public for

protection and the rehabilitative needs of the defendant.” Espinosa’s Brief at

18 (emphasis supplied). Espinosa emphasizes the trial court failed to account

for the fact that he has family support, was “barely an adult” at the time of

the crime, and was “under the influence of PCP.”         Id. at 20.   Relying on

Commonwealth v. Simpson, 510 A.2d 760 (Pa. Super. 1986), appeal

denied, 522 A.2d 49 (a, 1987), and 522 A.2d 1105 (Pa. 1987), he maintains

his cumulative minimum sentence was objectionable because it “robs him of

most of his young adulthood.” Id. at 24. Further, he states that although he

was not a juvenile when he committed the crime, “the same concerns

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expressed about lengthy incarceration of juvenile offenders [in Miller v.

Alabama, 567 U.S. 460 (2012),] apply” herein.            Id. at 25.    Moreover,

Espinosa insists the trial court displayed bias and ill-will toward him when it

referred to him as a “monster.” See id. at 29-30.

      Preliminarily, we note Espinosa’s insistence that the court must impose

the “minimum” term of confinement consistent with the Section 9721(b)

factors is simply incorrect. While a prior version of the Sentencing Code did

include the language Espinosa proposes, our Supreme Court has made clear

that “under the current Sentencing Code there is no requirement that a

sentencing court’s imposition of sentence must be the minimum possible

confinement[.]” Commonwealth v. Walls, 926 A.2d 957, 965 (Pa. 2007).

      Nor do we agree with Espinosa’s assertion that the United States

Supreme Court’s decision in Miller mandates a shorter sentence. The Miller

Court held “mandatory life without parole for those under the age of 18

at the time of their crimes violates the Eighth Amendment’s prohibition on

‘cruel and unusual punishments.’”       Miller, 132 S.Ct. at 2460 (emphasis

supplied). Here, Espinosa was 18 years old at the time he sexually assaulted

his niece; he was not convicted of murder, and not sentenced to a term of life

imprisonment without the possibility of parole. Accordingly, the Miller case

is simply inapplicable to the facts of this case. Although Espinosa refers to

the language in Miller which states that juveniles have underdeveloped

brains, he fails to acknowledge the Miller Court did not foreclose a trial court’s


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ability to impose a life sentence upon a juvenile convicted of murder; rather,

it imposed a requirement upon the trial court to “take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Miller, supra, 132 S.Ct. at 2469.

        Our review of the record, the parties’ briefs, and the relevant statutory

and case law reveals no abuse of discretion on the part of the trial court. Here,

the court had the benefit of both a presentence investigation report, and a

SORNA evaluation.         “Where the sentencing court had the benefit of a

presentence investigation report [], we can assume the sentencing court ‘was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.’”

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

omitted). Although Espinosa claimed he was under the influence of drugs at

the time of the crime, the court doubted the credibility of his account based

upon the fact he had the wherewithal to apply a lubricant to the victim7 before

videotaping the assault. Moreover, while the trial court declined to view the

video of the incident, so as not to “further victimize” the child,8 it considered

the testimony of the investigating officer who described the incident as


____________________________________________


7See N.T., 1/4/2017, at 16-17 (Commonwealth attorney describing that video
showed Espinosa “rub[bing] some kind of lotion or lubricant on this little girl
before he penetrates her”).

8   Id. at 21.


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“probably the worst thing I’ve ever seen in my career.” N.T., 1/4/2017, at

10. The officer explained the video “shows a cute four-year-old crying in the

background as the defendant continues [raping her], and he’s hushing her,

and he’s telling her, I’m almost there.” Id. Under these circumstances, we

cannot conclude the court’s imposition of consecutive standard range

sentences constituted an abuse of discretion.

       We also find Espinosa’s reliance on this Court’s decision in Simpson,

supra, misplaced. In that case, the defendant was convicted of participating

in six robberies of two appliance stores over a five-month period.            See

Simpson, supra, 510 A.2d at 761.               The trial court sentenced him to an

aggregate term of 30 to 60 years’ imprisonment, despite the fact that the

defendant had a “virtually nonviolent, unremarkable background,” was a high

school graduate and was honorably discharged after serving six years in the

military.   See id. at 762.         On appeal, a panel of this Court found the

cumulative sentence imposed was excessive. Indeed, after referencing case

law which called for the “minimum amount of confinement” consistent with

the Section 9721(b) factors,9 the panel stated:

       This case is one where the benefits of a good prior history and the
       effects of aging on criminal involvement make the appellant a
       reasonable candidate for a sentence which will punish him, serve
       the needs of society for protection and make note of the serious
       nature of the acts, but also permit the appellant, in a reasonable


____________________________________________


9   Simpson, supra, 510 A.2d at 762.


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      period of time, to return to society and, if need be, under long-
      term parole supervision, pick up a meaningful and productive life.

            To impose a minimum sentence of thirty years discounts the
      possibility of rehabilatation and effectively removes appellant from
      society for his potential working life, precluding the possibility of
      his ever becoming a contributing member of society.

Id. at 764.

      Espinosa argues his case “presents the same concerns that were

addressed by the Simpson Court” because his lengthy term of incarceration

“forecloses any possibility he could have an ordinary life[.]” Espinosa’s Brief

at 23-24. We reject his claim for several reasons. First, as noted above, the

Simpson Court relied, at least in part, on the now-irrelevant language calling

for imposition of the minimum sentence necessary to serve the objective of

the Sentencing Code.       Second, Espinosa’s history does not include the

“productive lifestyle” which Simpson led prior to his “rather late in [] life” crime

spree.” Simpson, supra, 510 A.2d at 763. Lastly, while the crimes of which

Simpson was convicted were serious, they are not as troubling as Espinosa’s

videotaped anal and vaginal rape of his four-year-old niece. Therefore, we

find Simpson is not controlling.

      Lastly, with respect to Espinosa’s claim that the trial court demonstrated

bias against him, the court maintains its comment was taken out of context.

The court opined:

      The Court’s use of the term “monster” referred to the descriptive
      term used by the four (4) year old victim as she described the
      sexual assault inflicted on her by her uncle. In that context it was



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      a[n] appropriate depiction of what, through the child’s eyes, [the
      victim] endured.

Trial Court Opinion, 10/30/2017, at unnumbered 4. Indeed, the prosecutor

stated during the sentencing hearing that, during a forensic interview, the

victim referred to her uncle as “a monster who came into her bedroom at

night.” See N.T., 1/4/2017, at 15. Accordingly, the trial court’s use of the

term was simply a reference to the victim’s description. The court used the

term to juxtapose the victim’s description of Espinosa with the gentle, loving,

young man described by the defense witnesses. We find no evidence of bias.

Compare Commonwealth v. Williams, 69 A.3d 735, 745-749 (Pa. Super.

2013) (vacating sentence imposed by trial judge upon revocation of probation

based on “overwhelming appearance of bias” when judge repeatedly (a)

implied original judge imposed too lenient a sentence, (b) insinuated burglary

defendant “held a particular animus towards the Catholic Church” because she

targeted those congregations more frequently than other organizations; (c)

described defendant as a “pathological liar;” and (d) subjectively compared

defendant to other female defendants he had sentenced, describing her as

“the most violent, thuggish female who has appeared before me”), appeal

denied, 83 A.3d 415 (Pa. 2014); Commonwealth v. Spencer, 496 A.2d 1156

(Pa. Super. 1985) (vacating sentence when trial court demonstrated bias

against 16-year-old defendant by stating it had been “waiting” for the day it

could sentence the defendant, describing him as an “animal,” and calling him

“Punk” and “Chief”).



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        Accordingly, because we detect no abuse of discretion on the part of the

trial court, and do not find application of the sentencing guidelines was “clearly

unreasonable” under the facts of this case,10 we affirm the judgment of

sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/18




____________________________________________


10   42 Pa.C.S. § 9781(c)(2).

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