J-A13023-23

2023 PA Super 187

COMMONWEALTH OF PENNSYLVANIA

v.

LUIS GABRIEL TORRES JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 962 MDA 2022

Appeal from the Judgment of Sentence Entered April 18, 2022

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0005092-2018

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*

CONCURRING OPINION BY BOWES, J.: FILED: SEPTEMBER 27, 2023

I agree with my esteemed colleagues that Appellant’s judgment of 

sentence should be affirmed. Further, I fully join the Majority’s resolution of 

Appellant’s final issue challenging the discretionary aspects of his sentence. 

See Majority Opinion at 10-13. I write separately because I would resolve 

Appellant’s other two claims differently.

Appellant first argues that the trial court should have granted his motion 

to dismiss because his due process rights under the U.S. and Pennsylvania 

constitutions were violated when the Commonwealth’s filed criminal charges 

against him nine years after it received complaints about acts that he

committed at ages thirteen through fifteen. As its basis for rejecting it, the 

Majority cites Commonwealth v. Armolt, 294 A.3d 364 (Pa. 2023), in which 

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* Former Justice specially assigned to the Superior Court.
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our High Court held that the adult criminal court had jurisdiction to try, 

convict, and sentence forty-two-year-old Armolt for crimes that he committed 

when he was a juvenile. See Majority Opinion at 5-6. However, in reaching 

that decision, the Armolt Court deemed waived for lack of development, and 

therefore did not resolve, Armolt’s claims that subjecting him to criminal 

punishment for crimes committed while he was a juvenile violated 

constitutional guarantees of due process, equal protection, and freedom from

cruel and unusual punishment. See Armolt, supra at 379-80.

Unlike Armolt, Appellant does not contend that the trial court lacked 

jurisdiction to try him as an adult for offenses he committed as a juvenile. 

Indeed, he expressly concedes that “the adult criminal justice system had 

jurisdiction over [him].” Appellant’s brief at 34-35. Rather, Appellant raises

a constitutional challenge to his belated prosecution that Armolt had waived. 

Specifically, Appellant argues that the delay in prosecuting him violated his 

due process rights because he suffered actual prejudice from the delay and 

the Commonwealth proffered no reasonable basis for it. See Appellant’s brief 

at 29-34 (citing, inter alia, Commonwealth v. Wright, 865 A.2d 894, 901 

(Pa.Super. 2004) (“[P]re-arrest delay constitutes a due process violation 

where there has occurred actual prejudice to the defendant and there existed 

no proper reasons for postponing the defendant’s arrest.” (cleaned up)). 

Accordingly, I cannot agree with my colleagues that the Armolt decision 

informs our resolution of Appellant’s due process claim. Instead, I would 
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affirm the denial of Appellant’s motion to dismiss based upon the reasoning of 

the trial court. See Trial Court Opinion, 7/28/22, at 7 (explaining that, even 

if Appellant were able to establish actual prejudice, there was nothing 

improper about the delay, as the singe victim who made a report in 2009 

failed to stand by her allegations during a subsequent forensic interview, and 

charges were promptly filed in 2018 when Appellant’s siblings next alleged 

abuse and substantiated the claims). Accord Commonwealth v. Monaco, 

869 A.2d 1026 (Pa.Super. 2005) (holding there was no merit to due process 

claim raised in connection with adult prosecution for offenses committed by 

juvenile where there was no improper motivation for the delay);1 

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1 This Court in Commonwealth v. Monaco, 869 A.2d 1026 (Pa.Super. 

2005), analyzed the due process claim without expressly applying the 

framework for pre-arrest delay discussed in Commonwealth v. Snyder, 713 

A.2d 596 (Pa. 1998), and Commonwealth v. Wright, 865 A.2d 894 

(Pa.Super. 2004), namely determining whether there was actual prejudice to 

the defendant and no proper reasons for postponing the arrest. The Armolt 

Court, while not deciding the due process claim, did discuss Monaco and its 

“‘bad faith’ exception” to the rule that adults can be tried for juvenile conduct. 

Commonwealth v. Armolt, 294 A.3d 364, 374 n.13 (Pa. 2023). However, 

Armolt neither (1) examined the due process precedent such as Snyder and

Wright that generally applicable to claims of pre-arrest delay in connection 

with its due-process assessment, nor (2) decided the continued viability of 

Monaco’s “improper motive” inquiry divorced from that precedent. Id. 

(“[W]e express no opinion about [Monaco’s] viability; we merely conclude 

appellant failed to show the Commonwealth acted in bad faith here, so the 

plain language of the statute controls.”). 

 Justice Wecht in his concurrence, joined by Justice Donohue, considered at 

length the possible legal basis for Monaco’s exception, observing that “such 

a rule serves a vital interest,” and ”should be examined in an appropriate 

case.” Id. at 386 (Wecht, J. concurring). I do not think this is that case. 

(Footnote Continued Next Page)
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Commonwealth v. Anderson, 630 A.2d 47 (Pa.Super. 1993) (reversing 

dismissal of charges against adult for offenses committed as a child where the 

appellant was responsible for the delay due to his “deliberate avoidance of the 

justice system”).2 

My disagreement with the Majority’s resolution of Appellant’s second 

issue is in a similar vein. There, Appellant argues that (1) a ten-year 

mandatory minimum sentence, and (2) an aggregate term of nineteen to forty 

years of incarceration, imposed for the repeated sexual abuse of his muchyounger siblings while he was a young teenager, constitutes cruel and unusual 

punishment. See Appellant’s brief at 35-58. 

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Nonetheless, as the author of Monaco, I submit that the same due process 

guarantees that require dismissal of prosecutions based upon pre-arrest delay 

inform the Monaco exception. As there is no indication of improper motives 

for delaying Appellant’s prosecution in this case, I need not expound upon 

whether being subjected to criminal sentencing rather than juvenile 

disposition can itself amount to actual prejudice under Snyder and Wright. 

I note that Justices Wecht and Donohue suggest that it cannot. Id. at 393 

(Wecht, J., concurring) (“Armolt could claim no right (constitutional, statutory, 

or otherwise) to a juvenile disposition of his charges. Consequently, Armolt 

is entitled to no comparison between the way his case proceeded and how it 

would have proceeded in juvenile court. . . . Armolt [cannot] establish that 

his sentence constituted an equal protection or due process violation; the law 

does not demand that he be tried as a juvenile in the first instance”).

2 The Commonwealth contends that Appellant, like the defendant in 

Commonwealth v. Anderson, 630 A.2d 47 (Pa.Super. 1993), is himself 

responsible for the delay. Specifically, the Commonwealth cites Appellant’s 

silencing threats to his young siblings over whom he had authority as the 

reason the Commonwealth lacked evidence to prosecute in 2009. See

Commonwealth’s brief at 14-16. The trial court did not cite this as the basis 

for its denial. 
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Specifically, Appellant relies upon Miller v. Alabama, 567 U.S. 460 

(2012), and its progeny in asserting that “‘a sentencer must have discretion 

to consider youth before imposing’ sentence.”3 Appellant’s brief at 43 (quoting 

Jones v. Mississippi, 141 S.Ct. 1307, 1316 (2021) (emphasis omitted)). He 

therefore urges us to declare that the Eighth Amendment of the federal 

Constitution, and Article I, § 13 of the Pennsylvania Constitution: (1) “require 

a criminal court to consider the diminished culpability of youth when imposing 

a sentence where the defendant committed the crime as a child;” and (2) 

“forbid the application of mandatory minimum sentences to defendants who 

committed their crimes as children.” Appellant’s brief at 58. 

In declining Appellant’s request, the Majority asserts that so ruling 

would run afoul of our Supreme Court’s plurality decision in Commonwealth 

v. Resto, 179 A.3d 18 (Pa. 2018). See Majority Opinion at 9. As the Majority 

correctly observes, three of the five Justices who participated in deciding

Resto agreed that 18 Pa.C.S. § 9718, which requires a mandatory minimum 

sentence of not less than ten years for persons convicted of, inter alia, rape 

of a child, does not violate the Sixth Amendment’s prohibition against judicial 

fact-finding recognized in Alleyne v. United States, 570 U.S. 99 (2013). 

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3 The Miller Court held that mandatory life imprisonment without parole for 

people who were juveniles at the time of their crimes constitutes cruel and 

unusual punishment given the hallmark, yet usually transient, features of 

youth such as “immaturity, impetuosity, and failure to appreciate risks and 

consequences.” Miller v. Alabama, 567 U.S. 460, 477 (2012). 
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See Majority Opinion at 9 n.8. However, the Resto Court did not review 

§ 9718 pursuant to the Eighth Amendment. 

The Majority also rejects Appellant’s Eighth Amendment challenge to

§ 9718 because it finds the decisions upon which Appellant relies inapplicable 

since they involve life sentences for juveniles tried as adults rather than lesser 

terms. See Majority Opinion at 9-10. Further, the Majority reiterates that 

Appellant “was not entitled to any special sentencing benefits under the 

Juvenile Act.” Id. at 10 (citing Armolt, supra). 

Respectfully, I fail to see how our High Court’s Resto decision has any 

relevance to the instant appeal. No claim of cruel and unusual punishment 

was raised in that case. The fact that the mandatory minimum statute at 

issue survived a Sixth Amendment challenge does not make it impervious to 

attack on other constitutional bases. Further, since jurisdiction is not at issue 

in the case sub judice, and, as discussed above, that was the only issue 

decided in Armolt, that case also does not supply relevant guidance to this 

constitutional challenge. 

Even so, I find the learned Majority’s election not to make the 

declarations of unconstitutionality that Appellant seeks to be correct. The 

Supreme Court’s Miller decision, even by extension of its foundational 

recognition of the transience of youth and its attendant lack of sound decisionmaking, did not invalidate the imposition of all mandatory sentences upon 

juvenile offenders, only those which “irrevocably sentenc[e] them to a lifetime 
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in prison.” Miller, supra at 479. When the Commonwealth does not seek a 

sentence of life without the possibility of parole, “[t]he sentencing court is not 

required to consider the Miller factors[.]” Commonwealth v. Summers, 

245 A.3d 686, 693 (Pa.Super. 2021). Furthermore, Appellant’s argument that 

a ten-year mandatory minimum sentence for a juvenile convicted of rape of a 

child violates the Eighth Amendment requirements established by Miller and 

its progeny has already been implicitly rejected by our holding that the Miller

decision bore no relevance to a challenge to the thirty-year mandatory 

minimum for second-degree murder. See Commonwealth v. Derrickson, 

242 A.3d 667, 678–79 (Pa.Super. 2020). 

I also discern no merit in Appellant’s Miller-based Eighth Amendment 

attack upon his aggregate sentence. As the Majority properly notes in 

resolving Appellant’s discretionary aspects claim, the trial court here 

thoroughly considered the mitigating factor of Appellant’s youth, along with 

the other pertinent evidence, in determining the sentence best suited to 

meeting his rehabilitative needs. See Majority Opinion at 12-13. Indeed, the 

trial court “extensively considered . . . Appellant’s youth at the time of the 

commission of his offenses” in arriving at the aggregate sentence it deemed 

necessary and appropriate in light of all of the sentencing factors. See Trial 

Court Opinion, 7/28/2, at 13-14. Thus, the trial court in fact undertook the 

very consideration of youth that Miller would require. 
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Moreover, the punishment imposed upon Appellant is not out of 

proportion with Appellant’s conduct. As the trial court indicated, “Appellant 

preyed upon three minor children of a very tender age,” and there was “an 

inherent cruelty [to] his conduct” given the position of authority that he held 

as a caregiver. Id. at 14. With all sentences falling within the standard range 

and all running currently but for one, Appellant will serve a fraction of the time 

that the court could have lawfully imposed. There is no manifest abuse of 

discretion here, let alone so harsh a sentence as to be unconstitutionally cruel 

and unusual.

It is for these reasons that I would affirm Appellant’s judgment of 

sentence.