Commonwealth v. Perry

1

COMMONWEALTH OF PENNSYLVANIA v. LARRY L. PERRY Appellant

No. 1968 EDA 2022

No. J-S20037-23

Superior Court of Pennsylvania

August 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered March 14, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006550-2019

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Larry L. Perry appeals from the judgment of sentence imposed following an open nolo contendere plea to two counts of statutory sexual assault and two counts of corruption of minors.^[1] For these offenses, Perry was sentenced to an aggregate fifty-two to one-hundred-and-four months of imprisonment. On appeal, Perry exclusively challenges the discretionary aspects of his "manifestly excessive" sentence, contending, inter alia, that the court relied on inappropriate factors. After a thorough review of the record, we conclude that the court did not abuse its discretion in imposing its sentence. Therefore, we affirm.

In summary:

On July 19, 2019, the Abington Township Police received a report from a twenty-six[-]year[-]old woman [, Victim 1,] who indicated that she had an inappropriate sexual relationship with [Perry] when he was her teacher at the Parkway School in Philadelphia, [Pennsylvania]. [Victim 1] further detailed that she met [Perry] at the age of thirteen and the two initially exchanged flirtatious texts. Eventually this developed into a sexual relationship when [Victim 1] was fifteen years old. During these sexual encounters, [Perry] would pick [Victim 1] up near her residence and transport her back to his residence located in Willow Grove [Pennsylvania]. [Victim 1], while still a minor and [Perry's] student, engaged in sexual intercourse with [Perry] multiple times at this residence. This sexual relationship continued into [Victim 1's] adulthood and ended when she was about twenty-five years old.

During the course of this investigation, Abington Police learned of another female student, [Victim 2], who had engaged in an inappropriate sexual relationship with [Perry]. [Victim 2] indicated that she had met [Perry] when she was either fourteen or fifteen years old when she was a freshman at the Parkway School in Philadelphia. [Perry] provided her with his cell phone number and communicated with [Victim 2] by email, phone calls and text messaging. [Victim 2] recounted that she had a troubled home life due to her father's addiction to drugs and her mother's significant mental health issues. In light of these factors [Victim 2] would talk with [Perry] in order to confide in him and to receive support and guidance. [Perry] subsequently began to drive [Victim 2] home from school. [Perry's] relationship with [Victim 2] eventually progressed to sexual in nature and the two engaged in sexual intercourse on several occasions beginning when she was fifteen years old. This sexual relationship continued into [Victim 2's] adulthood and ended when she was approximately twenty-five years old.

Trial Court Opinion, 10/6/22, at 1-2 (numerical parentheticals omitted).

After entering into a nolo contendere plea to the four counts enumerated above, Perry received "an aggravated[-]range sentence of twenty to forty months of imprisonment with respect to each statutory sexual assault charge and another aggravated[-]range sentence of six to twelve months of imprisonment with respect to each corruption of minors charge." Id., at 2 (numerical parentheticals omitted). In total, as all sentences were ordered to run separately, Perry was consecutively sentenced to the aforesaid fifty-two to one-hundred-and-four months of imprisonment.

Following sentencing, Perry filed a timely post-sentence motion, which was correspondingly denied. Thereafter, Perry filed a timely notice of appeal. We note that the relevant parties have complied with their respective obligations under Pennsylvania Rule of Appellate Procedure 1925, and as such, this appeal is ripe for review.

On appeal, Perry presents one issue for our consideration:

1. Did the lower court abuse its discretion at sentencing or enter a manifestly excessive sentence? See Appellant's Brief, at 4.

As this case exclusively contests the lower court's sentencing determinations, we start with our well-settled standard of review:

[s]entencing 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. In this context, an abuse of discretion is not shown merely by error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill[-]will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Moye, 266 A.3d 666, 676-77 (Pa. Super. 2021) (citation omitted).

However, because Perry specifically questions the discretionary aspects of his sentence, there is a preliminary hurdle he must satisfy prior to review of his underlying substantive claim. In particular, "[t]he right to appellate review of the discretionary aspects of a sentence is not absolute, and must be considered a petition for permission to appeal." Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). Accordingly, "[a]n appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence." Id.

In expounding upon the four-part test, an appellant must show that:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation omitted). "Substantial questions" have been interpreted as those questions that set "forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process." Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S. § 9721(b) (mandating that a sentence of confinement must be 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[ ]"). If the four-part test is satisfied, then we are tasked with reviewing an appellant's substantive claim, paying particular attention to whether the lower court, at any point, abused its discretion in sentencing. See Commonwealth v. Akhmedov, 216 A.3d 307, 328-29 (Pa. Super. 2019) (en banc).

Perry timely filed a post-sentence motion and notice of appeal. Moreover, Perry included a concise Rule 2119(f) statement in his brief. See Appellant's Brief, at 18. We conclude that he has met the first three requirements of the aforementioned four-part test.

In gleaning whether his Rule 2119(f) statement contains a substantial question, we conclude that Perry has minimally complied with his obligation to present a substantial question. Distilled down, his statement contains two bald sentences relevant to our determination: "Mr. Perry contends that the trial court imposed a manifestly excessive sentence and abused its discretion. … Mr. Perry also contends that the trial court's sentence was inconsistent with Pennsylvania's system of individualized sentencing." Id. However, the Commonwealth concedes "that such allegations set forth a substantial question for purposes of this court's analysis[.]" Appellee's Brief, at 8. Implicitly, and as gathered through the rest of his brief, Perry questions whether the sentencing court acted with overt bias when it sentenced him. Because "an allegation of bias in sentencing implicates the fundamental norms underlying sentencing[,]" Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011), we find that he has raised a substantial question. Consequently, we proceed to the merits of Perry's claim that his total sentence was manifestly excessive.

Perry suggests that the court was without any basis to: (1) impose aggravated-range sentences at any of the four nolo contendere counts; or (2) run the statutory sexual assault sentences consecutive to the corruption of minors sentences. See Appellant's Brief, at 20 (remarking that, in the absence of either, Perry's sentence would have been twenty-eight to fifty-six months of incarceration). Perry bolsters his argument through his proffer of "five factors[.]" Id. At 21.

First, Perry contends that "the trial court relied on its own imagination of what happened to attack [his] character inaccurately." Id. Perry takes umbrage with the court calling him "a sexual predator, the wors[t] type ever, since as their teacher, [he was] to protect them, not rape them." N.T., 3/14/22, at 131. Instead, Perry posits that forcibly kidnaping, torturing, raping, and killing an infant is worse than any of Perry's actions. See Appellant's Brief, at 21. Relatedly, Perry avers that the court speculatively sentenced him as if there were more than two victims. See id. ("[T]he [sentencing] court presumed with no evidence that there were likely other victims despite none of the witnesses being aware of any such conduct."). Replicated in full, the court stated:

[Perry's] conduct also constituted typical grooming by a sexual predator. First, [Perry] picked [his] targets. The ones [he] knew -- the ones we know about are [Victim 1] and [Victim 2]. Only [Perry] know[s] if

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