J-S24009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH JOHN MADONNA, JR.                   :
                                               :
                       Appellant               :   No. 1714 MDA 2017

           Appeal from the Judgment of Sentence September 6, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0006048-2016,
              CP-36-CR-0006049-2016, CP-36-CR-0006050-2016,
                           CP-36-CR-0006051-2016


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 13, 2018

       Appellant, Joseph John Madonna, Jr., appeals from the judgment of

sentence entered on September 6, 2017, following his jury trial convictions

for rape of a child, involuntary deviate sexual intercourse with a child,

aggravated indecent assault of a child less than 13 years of age, aggravated

indecent assault of a person less than 16 years of age, unlawful contact with

a minor, indecent assault of a person less than 16 years of age, three counts

of indecent assault of a child less than 13 years of age, and four counts of

corruption of a minor.1 We vacate the portion of Appellant’s sentence finding

him to be a sexually violent predator (SVP) and affirm in all other respects.

       The trial court summarized the facts and procedural history as follows:
____________________________________________


118 Pa.C.S.A. §§ 3121(c), 3123(b), 3122.1(b), 3125(b), 3125(a)(8), 6318,
3126(a)(8), 3126(a)(7), and 6301(a)(1)(ii), respectively.
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     On June 21, 2017, a jury found [Appellant], whose date of birth
     is October 12, 1934, guilty at the above-[captioned, four] docket
     numbers of [all the previously mentioned] charges. Each of
     [Appellant’s] convictions arose from [his] long-term sexual abuse
     of his two (2) minor granddaughters when [Appellant] was
     between the ages of approximately seventy-three (73) and
     eighty-one (81) years old. [Appellant’s] sexual abuse of J.G.M.,
     whose date of birth was February [ ], 1999, began when she was
     approximately eight (8) years old and continued until the abuse
     was discovered in May of 2016 when she was approximately
     seventeen (17) years old. [Appellant’s] sexual abuse of J.L.M.,
     whose date of birth was February [ ], 2003, occurred when she
     was between the ages of approximately four (4) and eight (8)
     years old and again when she was approximately eleven (11) or
     twelve (12) years old.

     J.G.M., who has an intellectual disability, testified that on
     numerous occasions [Appellant] had sexual intercourse with her,
     compelled her to perform oral sex on him and touched her sexually
     with his hands.       J.L.M. testified that she once witnessed
     [Appellant] receiving oral sex from J.G.M. and also testified that
     on at least four (4) separate occasions, [Appellant] rubbed her []
     inner thigh, breasts, or vagina over her clothes with his hands.
     The testimony of both girls demonstrated grooming behavior by
     [Appellant]. J.L.M. testified that [Appellant] would give her a soda
     after touching her and comforted her when she showed signs of
     being upset. Her testimony demonstrated that she was more
     resistant to the abuse than J.G.M. and [Appellant] stated at trial
     that he did [not] like J.L.M. because she was spoiled. [Appellant]
     demonstrated clear favoritism towards J.G.M. and bought her
     numerous gifts and treats. [Appellant’s] sexual abuse of his
     granddaughters took place in different jurisdictions, beginning in
     [Appellant’s] residence with his late wife and continuing at his new
     residence after his wife’s death in early 2011.          The abuse
     continued despite having been twice reported to the father and
     step-mother of the children.        The father of the children is
     [Appellant’s] son and is one of [Appellant’s] two only remaining
     adult relatives. [Appellant’s] sexual abuse of his granddaughters
     was only discovered [] when police obtained a letter written by
     J.G.M. to her boyfriend about the abuse.



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       [Appellant] was sentenced on September 6, 2017, following the
       preparation and filing of a pre-sentence investigation report (PSI).
       [At the time of sentencing, the trial court also held an SVP
       hearing.]

                               *               *    *

       All sentences were made concurrent except [for a] six (6) to
       twenty (20) year sentence for rape of a child, [a] six (6) to twenty
       (20) year sentence for involuntary deviate sexual intercourse with
       a child, and [a] two (2) to six (6) year sentence [] for unlawful
       contract with a minor.       Therefore, [Appellant received] an
       aggregate sentence [of] fourteen (14) to (46) years of
       incarceration. [The trial court deemed Appellant an SVP.]

       [Appellant] filed a post-sentence motion on September 18, 2017
       claiming that his aggregate sentence [was] manifestly excessive.
       That motion was denied by [o]rder dated October 5, 2017.
       [Appellant] filed his notice of appeal on November 3, 2017 [2] and
       a statement of errors [pursuant to Pa.R.A.P. 1925(b)] on
       November 27, 2017. [The trial court issued an opinion pursuant
       to Pa.R.A.P. 1925(a) on December 18, 2017.]

Trial Court Opinion, 12/18/2017, at 2-6 (record citations and quotations

omitted).

       On appeal, Appellant presents the following issue for our review:


____________________________________________


2   The trial court entered a separate sentencing order for each of the four
docket numbers. Appellant, however, filed a single notice of appeal bearing
all four caption numbers.           Our Supreme Court recently decided
Commonwealth v. Walker, 2018 WL 2448643 (Pa. 2018) on June 1, 2018.
Citing the official note to Pa.R.A.P. 341, the Walker Court prospectively
determined that separate notices of appeal must be filed when convictions
arise from separate dockets. However, our Supreme Court applied Walker
prospectively from June 1, 2018, because it was “contrary to decades of case
law from [the Supreme] Court and the intermediate appellate courts that,
while disapproving of the practice of failing to file multiple appeals, [appellate
courts] seldom quashed appeals as a result.” Walker, 2018 WL 2448643, at
*6 (Pa. 2018). Because Walker was decided after the instant appeal was
filed, we will not apply it and we decline to quash this single appeal.

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      I.    Did the trial court err in imposing a manifestly unreasonable
            sentence that was an abuse of discretion and clearly
            unreasonable when the [t]rial [c]ourt’s aggregate sentence
            in the above-captioned cases of fourteen (14) years to
            forty-six years [of] incarceration for the [82 year-old
            Appellant] was a manifestly unreasonable decision as the
            [c]ourt did not consider the rehabilitative or individualized
            needs of [Appellant] under 42 Pa.C.S.A. § 9721(b), and the
            aggregate sentence was manifestly excessive in that the
            sentences imposed are the functional equivalent to a life
            sentence, which violates the prohibition against cruel and
            unusual punishment of Article I, Section 13 of the
            Pennsylvania Constitution and Article 8 of the United States
            Constitution and the [c]ourt articulated its expectation at
            sentencing that [Appellant] will [die] in jail. Additionally,
            the [c]ourt considered the impermissible factor of
            [Appellant’s] son protecting [Appellant] from the police, the
            son preventing the charges being brought earlier and the
            son preventing the son’s daughter from speaking of the
            abuse by [Appellant] earlier. Additionally, the aggregate
            sentence was clearly unreasonable under 42 Pa.C.S.A.
            § 9781(c)(2)?

Appellant’s Brief at 7.

      Appellant claims that “his aggregate sentence of [14] to [46] years was

a manifestly unreasonable decision and a result of ill will and prejudice toward

Appellant.” Id. at 23. More specifically, Appellant argues:

      The sentencing court did not reference [] Appellant’s potential for
      rehabilitation while on parole or probation. Instead, the [trial
      c]ourt told Appellant he would die in prison.

      The sentencing judge’s sentence was contrary to the fundamental
      norms underlying the sentencing scheme. While the [trial c]ourt
      cited [] Appellant’s age at sentencing (82), his solid work history,
      no prior record as an adult or juvenile, throat cancer that Appellant
      suffers from, service with the United States Marines in the Korean
      War from 1952 to 1955, the aggregate sentence imposed failed to
      take the aforesaid mitigating factors into account in sentencing.
      The sentencing court’s recitation of mitigation was tantamount to



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     ‘lip service’ only. As previously indicated, Appellant has no
     opportunity for rehabilitation under the aggregate sentence[.]

Id. at 21-22. Appellant also suggests that, when fashioning his sentence, the

trial court improperly considered that the victims’ father, Appellant’s son,

protected Appellant by hiding the abuse from the police. Id. at 22.

     This Court has previously determined:

     It    is    well-settled    that     the    right    to    appeal
     a discretionary aspect of sentence is not absolute. Rather, where
     an appellant challenges the discretionary aspects of a sentence,
     an appellant's appeal should be considered as a petition for
     allowance of appeal.

     An      appellant    challenging     the discretionary aspects of
     his sentence must invoke this Court's jurisdiction by satisfying a
     four-part test:

        [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).

     Whether         a        particular      issue      constitutes
     a substantial question about the appropriateness of sentence is
     a question to be evaluated on a case-by-case basis.

                          *          *            *

     We have found that a substantial question exists when the
     appellant      advances      a     colorable    argument       that
     the sentencing judge's actions were either: (1) inconsistent with
     a specific provision of the Sentencing Code; or (2) contrary to the
     fundamental norms which underlie the sentencing process. We
     cannot look beyond the statement of questions presented and the
     prefatory Rule 2119(f) statement to determine whether
     a substantial question exists.


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      It is settled that this Court does not accept bald assertions
      of sentencing errors. When we examine an appellant's Rule
      2119(f)        statement        to     determine        whether
      a substantial question exists, our inquiry must focus on the
      reasons for which the appeal is sought, in contrast to the facts
      underlying the appeal, which are necessary only to decide the
      appeal on the merits. A Rule 2119(f) statement is inadequate
      when it contains incantations of statutory provisions and
      pronouncements of conclusions of law.

Commonwealth v. Radecki, 180 A.3d 441, 467–468 (Pa. Super. 2018)

(internal citations and most quotations omitted).

      Here, Appellant has failed to raise a substantial question.   Appellant

premises his argument primarily on the fact that the trial court imposed

consecutive sentences and failed to consider his age. We have consistently

recognized that excessiveness claims premised on such arguments do not

raise substantial questions for our review.            Id. at 468-469, citing

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en

banc) (stating, “[a] court's exercise of discretion in imposing a sentence

concurrently or consecutively does not ordinarily raise a substantial

question[.]”); see also Commonwealth v. Eline, 940 A.2d 421, 435 (Pa.

Super. 2007) (an appellant's argument that “the trial court failed to give

adequate consideration to [his] poor health and advanced age” in fashioning

his sentence does not raise a substantial question).

      “A defendant may raise a substantial question where he receives

consecutive sentences within the guideline ranges if the case involves

circumstances where the application of the guidelines would be clearly

unreasonable, resulting in an excessive sentence; however, a bald claim of

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excessiveness due to the consecutive nature of a sentence will not raise a

substantial question.” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.

Super. 2013).     In Dodge, the defendant was convicted of 40 counts of

receiving stolen property, and related crimes, and received an aggregate

sentence of over 40 years of imprisonment. Dodge argued that his aggregate

sentence was excessive because his non-violent criminal conduct did not

warrant a de facto life sentence.     “We cautioned that although Dodge had

raised a substantial question in his particular case, a defendant does not raise

a substantial question ‘where the facts of the case being reviewed do not

warrant    the   conclusion   that   there    is   a   plausible    argument     that

the sentence is prima     facie excessive    based     on   the    criminal   conduct

involved.’”   Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa. Super.

2018), citing Dodge, 77 A.3d at 1271.

      Here, Appellant used his position of trust and authority to groom,

manipulate, and sexually abuse his own granddaughters over the course of

many years. Thus, we conclude Appellant failed to make a plausible argument

that his sentence was prima facie excessive based upon his criminal conduct.

For all of the foregoing reasons, Appellant has failed to raise a substantial

question for our review.

      In the alternative, even if Appellant raised a substantial question, he is

not entitled to relief.   We employ the following narrow standard of review:

      We            may             reverse            only          if
      the sentencing court abused its discretion or committed an error
      of law.      Merely erring in judgment is insufficient to

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      constitute abuse of discretion.          A    court         has
      only abused its discretion when the record disclosed that the
      judgment exercised was manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will.

Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018) (citations and

quotations omitted).

      The Sentencing Code provides:

      the [trial] court shall follow the general principle that the sentence
      imposed should call for confinement 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.A. § 9721(b).

      Section 9781(d) provides that, when reviewing a sentence, we must

consider the following:

      (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).

      An appellate court shall vacate a 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;




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     (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.

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

42 Pa.C.S.A. § 9781(c).

     Moreover,

     where the sentencing court had the benefit of a [presentence
     investigation (“PSI”)], we can assume the sentencing court was
     aware of the relevant information regarding the defendant's
     character and weighed those considerations along with mitigating
     statutory factors. Further, where a sentence is within the standard
     range of the guidelines, Pennsylvania law views the sentence as
     appropriate under the Sentencing Code.

Radecki, 180 A.3d at 471 (citation omitted).

     In this case, in imposing sentence, the trial court stated:

     [I]t is likely that any sentence for [Appellant] would be the
     equivalent of a life sentence due to his advanced age. That fact
     was acknowledged at sentencing and in [Appellant’s] own filings.
     That does not automatically render his sentence, imposed within
     the standard guideline range and with the benefit of a PSI,
     unreasonable or improper.       A review of the record clearly
     demonstrates a meaningful consideration of the appropriate and
     relevant sentencing factors, including the PSI, [Appellant’s] age,
     maturity, intelligence and work history. Though [Appellant] had
     no prior record, [Appellant’s] long-term sexual abuse of these
     children continued, in part, due to the unwillingness and refusal
     of his family to report the known/suspected abuse and their
     warnings to the children not to tell anybody about the abuse.
     Contrary to [Appellant’s] claim, the actions of his family were not
     improperly taken into consideration and [Appellant’s] individual
     and rehabilitative needs were fully considered, as well as the
     protection of the public. Despite [Appellant’s] advanced age, he


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        was able to persist in the long-term sexual abuse of his
        granddaughters and did so despite his family’s knowledge that
        sexual abuse was taking place. The evidence and testimony at
        trial demonstrate that [Appellant’s] sexual abuse of, at least,
        J.G.M., would have continued indefinitely had authorities not
        discovered it by accident.

        Also taken into consideration was the nature of [Appellant’s]
        crimes, having been committed over the course of years and
        against particularly vulnerable victims, being young children and
        an intellectually disabled child. Further, [Appellant] showed
        absolutely no affection for his granddaughters throughout the
        proceedings and at one point during trial noted that he refers to
        their intimate body parts [in derogatory terms]. [Appellant] failed
        to acknowledge or accept any responsibility for his actions and
        expressed no remorse or regret concerning his granddaughters or
        his sexual abuse of them. [Appellant’s] aggregate sentence is
        proper and appropriate in light of all the relevant factors and takes
        into consideration the protection of the public, the gravity of the
        offense on the victims and community[,] and the rehabilitative
        needs of [Appellant].

Trial Court Opinion, 12/18/2017, at 8-9 (record citations omitted).

        Upon review, we discern no abuse of discretion in sentencing Appellant.

Here, the trial court had the benefit of a PSI and, thus, we presume it

considered Appellant’s individual circumstances when imposing Appellant’s

sentence. The trial court considered the nature of the crimes and determined

that,   in   order   to   protect   the   victims   and   the   public,   consecutive,

standard-range sentences on three of the charges were appropriate. The trial

court specifically noted Appellant groomed two victims and prolonged the

sexual abuse over many years when the children were very young.               Further,

one victim is mentally disabled. The trial court considered Appellant’s age,

but then determined that Appellant’s rehabilitative prospects were slight given

his lack of remorse and his failure to appreciate the severity of his actions.

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Discerning no abuse of discretion by the trial court, we will not disturb

Appellant's sentences on appeal.

       Before concluding our analysis, however, we are constrained to sua

sponte3 raise the legality of Appellant’s designation as an SVP under the Sex

Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§

9799.10-9799.41. A recent panel of this Court recognized:

       In [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)], our
       Supreme Court held that the registration requirements under
       SORNA constitute criminal punishment. [Muniz,], 164 A.3d at
       1218.      In   light    of Muniz,    this    Court     determined:
       “[U]nder Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct.
       2348, 147 L.Ed.2d 435 (2000)] and Alleyne [v. United States,
       570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)] a factual
       finding, such as whether a defendant has a mental abnormality or
       personality disorder that makes him ... likely to engage in
       predatory sexually violent offenses, that increases the length of
       registration must be found beyond a reasonable doubt by the
       chosen fact–finder.” Commonwealth v. Butler, 173 A.3d 1212,
       1217 (Pa. Super. 2017) (internal quotations and citations
       omitted). The Butler Court further held “section 9799.24(e)(3) of
       SORNA violates the federal and state constitutions because it
       increases the criminal penalty to which a defendant is exposed
       without the chosen fact–finder making the necessary factual
       findings beyond a reasonable doubt.” Id. at 1218. The Court
       therefore concluded that trial courts no longer can designate
       convicted defendants as SVPs or hold SVP hearings “until our
       General     Assembly     enacts   a    constitutional    designation
       mechanism.” Id. The Butler Court directed trial courts to apply
       only the applicable tier–based registration period, as those periods
       apply based on the conviction itself, and not due to any additional
       fact not found, under SORNA's procedures, by the fact–finder. The
       Court ultimately reversed the order finding the defendant to be an
       SVP and remanded to the trial court for the sole purpose of issuing
____________________________________________


3 See Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
(addressing legality of SVP status sua sponte).


                                          - 11 -
J-S24009-18


      appropriate notice of the defendant's tier–based registration
      period. Id.

Commonwealth v. Golson, 2018 WL 2473514, at *7 (Pa. Super. 2018)

      Here, the trial court designated Appellant an SVP on September 6, 2017.

In light of Butler and our Supreme Court’s decision in Muniz, as summarized

above, we are constrained to vacate the portion of the trial court’s order of

September 6, 2017 designating Appellant as an SVP. We remand the case to

the trial court for the sole purpose of issuing the appropriate notice under 42

Pa.C.S.A. § 9799.23 as to Appellant’s tier-based registration obligations under

SORNA.

      Judgment of sentence affirmed in part, SVP designation vacated. Case

remanded with instructions. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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