Appeal from the Judgment of Sentence January 13, 2012 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002008-2008
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., OLSON, J., and STRASSBURGER, J.*fn1
This is an appeal from the January 13, 2012 judgment of sentence entered in the Court of Common Pleas of Northampton County after this Court vacated Appellant's original sentence on the basis it was manifestly excessive and remanded for resentencing. Upon remand, the trial court imposed an aggregate sentence of thirty-five years to seventy years in prison for Appellant's convictions on 96 counts of sexual abuse of children (possession of child pornography).*fn2 Appellant now claims his new aggregate sentence is also manifestly excessive and an abuse of the trial court's discretion. For the following reasons, we affirm.
A panel of this Court has previously set forth the relevant factual and procedural history, in part, as follows:
On May 16, 2008, officers of the Colonial Regional Police Department went to Appellant's house to locate a runaway female, R.M. With Appellant's permission, Officer David Templeton entered Appellant's house and located R.M. upstairs. Officer Templeton took R.M. into custody and transported her back to the police station.
After Officer Templeton brought R.M. to the police station, Sergeant Michael Melinsky received a complaint from Appellant that he had just received a threatening phone call. Sergeant Melinsky and Officer Templeton arrived at Appellant's apartment to investigate the complaint, and asked Appellant if he thought the call was related to R.M. Appellant responded that he thought it was.
Appellant had a female companion present at his apartment, so Sergeant Melinsky, Officer Templeton, and Appellant entered Appellant's bedroom to talk in private. During their conversation, Sergeant Melinsky asked Appellant if he had a relationship with R.M., and Appellant explained that he met R.M. on the internet and that he dated and had sex with R.M. Sergeant Melinsky then asked Appellant if there were any other girls that he had met over the internet, and Appellant said yes. Sergeant Melinsky told Appellant that he did not have to answer any more questions and that the officers would leave at any time. Appellant agreed to talk, and admitted to having sexual relations with underage females, including a victim known as K.
Sergeant Melinsky left Appellant's apartment, and went outside to smoke a cigarette and call Detective Hammer. When finished, Sergeant Melinsky reentered Appellant's apartment with Appellant's permission. Detective Hammer later arrived at Appellant's apartment, and Sergeant Melinsky let Detective Hammer inside Appellant's residence. Detective Hammer engaged in a conversation with Appellant, informing Appellant that he was not under arrest, did not have to answer any questions, and if he wanted the police to leave, the police would leave. Appellant agreed to talk with Detective Hammer. Appellant told Detective Hammer that he had video images saved on his computer and flash drives. Appellant also told Detective Hammer that he had a "problem" and wanted help. During the interview, Appellant's demeanor was calm and he engaged in casual conversation with the officers.
Detective Hammer asked Appellant if he could retrieve the computer and the flash drives. Appellant showed Detective Hammer where the computer and the flash drives were located, and gave them to Detective Hammer. Detective Hammer transported the computer and the flash drives from Appellant's apartment to the police station. The computer and flash drives contained pictures of child pornography.
The police arrested Appellant. While in custody, Appellant waived his Miranda rights, and executed a written confession.
On June 20, 2008, the Commonwealth filed a complaint against Appellant, charging him with numerous counts of possession of child pornography..The case proceeded to [a jury] trial..At the conclusion of trial, on September 18, 2009, [the] jury found Appellant guilty of 96 counts of possession of child pornography. On December 22, 2009, the trial court sentenced Appellant to consecutive sentences of 9 months to 2 years imprisonment for each of the 96 convictions of possession of child pornography. Appellant's aggregate sentence was 72 years to 192 years.
Appellant filed a timely post-sentence motion to modify sentence, which the trial court denied on March 19, 2010. Appellant filed a timely notice of appeal.
Commonwealth v. Austin, No. 1092 EDA 2010, *2-5 (Pa.Super. filed 3/11/11) (unpublished memorandum) (footnote added) (footnote omitted).
On direct appeal, Appellant contended the suppression court erred in denying Appellant's suppression motion, Pa.R.Crim.P. 600 motion, and motion in limine. This Court found no merit to these issues and affirmed his convictions. See id. However, Appellant also contended the trial court abused its discretion in imposing consecutive periods of incarceration at the top end of the standard range for each of the 96 counts of possession of child pornography, resulting in a clearly excessive aggregate sentence of 72 to 192 years in prison. Finding this case to be akin to Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009),*fn3 a panel of this Court concluded the trial court abused its discretion in sentencing Appellant, who was at the time of sentencing twenty-five years old, to a virtual life sentence under the facts and circumstances of this case.
See Austin, supra. Accordingly, while this Court affirmed Appellant's convictions, the panel vacated the original judgment of sentence and remanded for resentencing.*fn4
Upon remand, on January 13, 2012, the trial court held a new sentencing hearing, at which the trial court acknowledged this Court had vacated Appellant's original judgment of sentence on the basis the aggregate sentence was manifestly excessive. N.T. 1/13/12 at 2. The trial court indicated it had in its possession, and was going to consider carefully, a presentence investigation report, a psychological evaluation prepared by Doctor Robert E. Wisser, a psychosexual evaluation prepared by Doctor Catherine Surbeck, a psychological evaluation prepared by Frank Dattilio, and an assessment prepared by the Sexual Offenders Assessment Board. N.T. 1/13/12 at 3, 13. Defense counsel provided the trial court with five letters, which were written on behalf of Appellant, and then called Appellant's mother, Cheryl L. Daumer, to the stand to offer a statement on behalf of Appellant. N.T. 1/13/12 at 5. Ms. Daumer informed the trial court Appellant was well-liked when he attended school, was a volunteer fire- fighter, and "was never a problem." N.T. 1/13/12 at 7. The trial court invited Appellant to make a statement, and Appellant expressed the following:
Obviously, I'm back here again. I was just wondering why you have me in state prison. I've been assaulted numerous times [since I've been] at state prison. It concerns me because I've been assaulted numerous times by staff and inmates. Fortunately, where I'm at now I haven't been assaulted recently. But it's still something I have to watch out for on a daily basis.
It's very stressful, very upsetting. I've had to go on medication to help me sleep and for my depression and my anxiety. It doesn't seem fair at all.
The trial court invited the Commonwealth to present any new evidence or argument, and the Commonwealth stated the following:
[T]he Superior Court did suggest that a life sentence for possession of child pornography is not appropriate.
But I believe that you can't ignore the factors that exist in this case and the totality of the circumstances surrounding [Appellant] and his possession of the child pornography and [Appellant's] participation in the production of some of the pictures and his participation within the pictures themselves.
You may recall, Your Honor, [Appellant] did take pictures of a young girl while he was engaging in oral intercourse with her. The reports indicate that [Appellant] is a high risk to re-offend and is a danger to the community.
And in spite of his volunteering in the community, you recall, Your Honor, [Appellant] is HIV positive or was and had sexual intercourse with young teens, unsuspecting young teens, in spite of his condition.
I think that he continues to pose a high risk to offend, whether it be pornography, producing, participating, or possessing pornography, as well as other sexual deviate acts in the community. And I believe a sentence should reflect the necessity to keep [Appellant] away from the community.
In response, defense counsel indicated the following:
[Appellant], up until the charges in this matter, the other cases he was involved in was, in fact, a well-respected member of society, was a volunteer with the EMS and fire department since the age of 14 officially and even before that.
There had been no indication that he was, in fact, any type of criminal, but was a, quote, pillar of society, if you will. He was volunteering and helping ...