J-A09021-23

2023 PA Super 131

COMMONWEALTH OF PENNSYLVANIA

v.

MARCUS GARETH KEVON DOVE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1380 MDA 2022

Appeal from the Judgment of Sentence Entered September 1, 2022

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

No(s): CP-06-CR-0003445-2020

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

OPINION BY OLSON, J.: FILED: JULY 25, 2023

Appellant, Marcus Gareth Kevon Dove, appeals from the September 1, 

2022 judgment of sentence entered in the Court of Common Pleas of Berks 

County that imposed an aggregate sentence of 86 to 177 years’ incarceration. 

On November 16, 2021, a jury convicted Appellant of rape of a child (4 

counts), involuntary deviate sexual intercourse with a child (3 counts), 

aggravated indecent assault – complainant less than 13 years of age (1 

count), indecent assault – complainant less than 13 years of age (2 counts), 

endangering welfare of children (“EWOC”) (2 counts), and corruption of 

minors (2 counts).1 We affirm Appellant’s convictions. We vacate, in part, 

Appellant’s judgment of sentence only insofar as it directs Appellant to comply 

with the requirements of Subchapter H of Pennsylvania’s Sexual Offender 

____________________________________________

1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(a)(7), 3126(a)(7), 4304(a)(1), and

6301(a)(1)(ii), respectively.
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Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10 to 

9799.40 and remand the case in accordance with this opinion.

The trial court summarized the factual history as follows:

[Appellant] is the stepfather to two female [minors, D.W., born 

March 2010, and S.S., born December 2005. Appellant] resided 

with [D.W.] and S.S. [in] Reading, Berks County, Pennsylvania.

When [D.W.] was 6 or 7 years of age, [Appellant] touched 

[D.W.’s] chest and vagina multiple times with his hand both over 

and under her clothes. [D.W.] and S.S. shared a bunk bed in a 

room at the residence. [D.W.] slept on the top [bunk] bed[,] and 

S.S. slept on the bottom [bunk bed]. When [D.W.] and S.S. were 

in their bunk bed[s, Appellant] would get into S.S.'s bed[,] and 

[D.W.] felt the [bunk bed] shaking. [Appellant] continued with 

this behavior until [D.W.] reached 9 years of age. [Appellant]

stopped living in [the residence] around that time.

When S.S. was around 8 years of age, [Appellant] touched S.S.'s 

butt and vagina both over and under her clothes. When S.S. was 

10 years old, [Appellant] put his penis inside of S.S.'s mouth, 

vagina[,] and anus. [Appellant] had vaginal intercourse with S.S. 

when she was 10 years old[,] and this [sexual assault] occurred 

multiple times [] until [S.S.] was 14 years old. When S.S. was 

around the age of 11 or 12, [Appellant] started putting his penis 

into her anus. This happened between 12-15 times. [Appellant]

also put his penis into S.S.'s mouth and would ejaculate. When 

S.S. was around 10 or 11 years old, [Appellant] touched S.S.'s

vagina with his hands and put his fingers inside [] her vagina. 

[Appellant] also put his mouth on S.S.'s vagina and put his tongue 

inside [her vagina]. S.S. was around 10 or 11 years of age when 

these incidents occurred[,] and [the incidents] continued until she 

was 14.

Trial Court Opinion, 11/15/22, at 2-3 (record citations omitted).

On November 16, 2021, a jury convicted Appellant of committing the 

aforementioned sexual offenses against the two minor victims. On July 26, 

2022, and prior to sentencing, the trial court designated Appellant as a 
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sexually violent predator (“SVP”) pursuant to SORNA - Subchapter H, having 

found that the Commonwealth met its burden by clear and convincing 

evidence.

2

 N.T., 7/26/22, at 19; see also Trial Court Order, 7/27/22; 42 

Pa.C.S.A. § 9799.12 (defining “sexually violent predator”). On September 1, 

2022, Appellant was sentenced as follows. On each of the 4 counts of rape of 

a child (Counts 1 through 4), Appellant was sentenced to 20 to 40 years’

incarceration. As part of the sentence imposed at Count 1, Appellant received 

a credit of 695 days for time served. The trial court directed that the 

sentences imposed at Counts 2, 3, and 4 should each run consecutively to the 

sentence imposed on the immediately-proceeding count. On Count 

8 (aggravated indecent assault – complainant less than 13 years of age), the 

trial court imposed a sentence of 5 to 10 years’ incarceration, with the 

sentence set to run concurrently to the sentence imposed on Count 1. On 

Count 9 (indecent assault – complainant less than 13 years of age), Appellant 

received a sentence of 1 to 7 years’ incarceration, with the sentence set to 

run consecutively to the sentence imposed on Count 4. On Count 10 (EWOC), 

Count 11 (corruption of minors), Count 12 (indecent assault – complainant 

less than 13 years of age), Count 13 (EWOC), and Count 14 (corruption of 

____________________________________________

2

In the case sub judice, the sexual offenses against the two minor victims 

occurred between January 1, 2015, and August 6, 2020. Trial Court Opinion, 

11/15/22, at 1. Subchapter H of SORNA applies in the case sub judice because 

Appellant committed the sexual offenses on or after December 20, 2012. See 

Commonwealth v. Thorne, 276 A.3d 1192, 1193 n.1 (Pa. 2022) (stating, 

revised Subchapter H of SORNA applies to individuals who committed their 

sexual offenses on or after December 20, 2012).
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minors), the trial court imposed a separate sentence at each count of 1 to 2 

years’ incarceration with each individual sentence set to run consecutively to 

the sentence imposed on the immediately-proceeding count. Appellant’s 

convictions of involuntary deviate sexual intercourse (Counts 5, 6, and 7) 

merged for sentencing purposes. Overall, Appellant received an aggregate 

sentence of 86 to 177 years’ incarceration. Sentencing Orders, 9/1/22; see 

also N.T., 9/1/22, at 28-31.

On September 8, 2022, Appellant filed a post-sentence motion, seeking 

a modification of his sentence on grounds it was excessive and repetitious. 

Appellant also requested that the trial court reconsider his SVP designation. 

The trial court denied Appellant's post-sentence motion on September 14, 

2022. This appeal follows.3

Appellant raises the following issues for our review:

1. Whether Count 8[ (]aggravated indecent assault[)] should 

have merged with Count 1[ (]rape of a child[)] for 

sentencing purposes?

2. Whether the [trial] court abused its discretion in ordering an 

overall sentence which is manifestly excessive and by 

denying the post-sentence motion seeking a modification of 

the overall sentence?

3. Whether SORNA, which Appellant has been ordered to 

comply with, is unconstitutional as a legislative scheme in 

its use of a constitutionally infirm rebuttable presumption 

____________________________________________

3 Both Appellant and the trial court complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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and in the punitive effects of its registration and notification 

provisions?

Appellant’s Brief at 7 (extraneous capitalization omitted).

In his first issue, Appellant asserts that his conviction of aggravated 

indecent assault (Count 8) should have merged for sentencing purposes with 

his conviction of rape of a child (Count 1). Id. at 17-21. Such a claim raises 

a challenge to the legality of the sentence for which our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Quintua, 

56 A.3d 399, 400 (Pa. Super. 2012), appeal denied, 70 A.3d 810 (Pa. 2013).

Appellant was convicted of the following pertinent offenses under the 

Crimes Code:

§ 3121. Rape

. . .

(c) Rape of a child. - A person commits the offense of rape of a 

child, a felony of the first degree, when the person engages in 

sexual intercourse with a complainant who is less than 13 years 

of age.

18 Pa.C.S.A. § 3121(c).

§ 3125. Aggravated indecent assault

(a) Offenses defined. - Except as provided in sections 3121 

(relating to rape), 3122.1 (relating to statutory sexual assault), 

3123 (relating to involuntary deviate sexual intercourse) and 

3124.1 (relating to sexual assault), a person who engages in 

penetration, however slight, of the genitals or anus of a 

complainant with a part of the person's body for any purpose other 

than good faith medical, hygienic or law enforcement procedures 

commits aggravated indecent assault if:

. . .
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(7) the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3125(a)(7).

Whether these offenses merge for sentencing purposes turns on Section 

9765 of our Sentencing Code, which provides,

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the other 

offense. Where crimes merge for sentencing purposes, the [trial] 

court may sentence the defendant only on the higher graded 

offense.

42 Pa.C.S.A. § 9765. Thus, Section 9765 “prohibits merger unless two distinct 

facts are present: 1) the crimes arise from a single criminal act; and 2) all of 

the statutory elements of one of the offenses are included in the statutory 

elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833 

(Pa. 2009). “If both crimes require proof of at least one element that the 

other does not, then the sentences do not merge.” Commonwealth v. Allen, 

856 A.2d 1251, 1253 (Pa. Super. 2004) (stating, the operative consideration 

in a merger analysis is “whether the elements of the offenses are the same or 

different), relying on Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994).

Pursuant to statutory definitions, to convict a defendant of rape of a 

child, the Commonwealth must prove beyond a reasonable doubt that (1) the 

defendant engaged in sexual intercourse with the child-victim, and (2) that 

the child-victim was under the age of 13. Commonwealth v. Hacker, 15 

A.3d 333, 336-337 (Pa. 2011); see also 18 Pa.C.S.A. § 3121(c). To convict 
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a defendant of aggravated indecent assault of a child-victim under the age of 

13, the Commonwealth must prove beyond a reasonable doubt that (1) the 

defendant penetrated, however slight, the genitalia or anus of the child-victim, 

with a part of the defendant’s body, (2) the penetration was not done for a 

good faith medical, hygienic, or law enforcement procedure or purpose, and 

(3) that the child-victim was under the age of 13.4 Commonwealth v. 

____________________________________________

4 For purpose of defining the type of penetration necessary to establish a 

conviction of aggravated indecent assault, we examine the statutory definition 

of aggravated indecent assault. A plain reading of the statutory definition, 

taking into consideration the qualifier clause, “[e]xcept as provided in,” 

demonstrates that the term “penetration” for purpose of aggravated indecent 

assault cannot include the type of penetration necessary for a conviction of:

rape (18 Pa.C.S.A. § 3121 – requiring penetration that amounts to sexual 

intercourse, as defined infra); statutory sexual assault (18 Pa.C.S.A. 

§ 3122.1 – requiring penetration that amounts to sexual intercourse, except 

for acts that constitute rape); involuntary deviate sexual intercourse (18 

Pa.C.S.A. § 3123 – requiring penetration that amounts to deviate sexual 

intercourse, which includes, inter alia, intercourse per os and per anus, as 

defined infra, between human beings (see 18 Pa.C.S.A. § 3101)); or sexual 

assault (18 Pa.C.S.A. § 3124.1 – requiring penetration that amounts to sexual 

intercourse or deviate sexual intercourse, except for acts that constitute rape 

or involuntary deviate sexual intercourse). See 18 Pa.C.S.A. § 3125(a).

When the "exceptions clause” that appears at the beginning of the definition 

of the offense of aggravated indecent assault at Section 3125(a) is applied, 

we conclude that the term “penetration,” for purposes of specifying the 

elements of aggravated indecent assault, cannot refer to the defendant’s use 

of his penis to penetrate the complainant’s genitalia or anus, nor can it refer 

to the defendant’s use of his mouth/tongue to penetrate the complainant’s 

genitalia. Under Section 3101 and our interpretive case law, such conduct

constitutes “sexual intercourse,” which falls within the offense of rape of a 

child (Section 3121(c)) and is excluded by definition from the offense of 

aggravated indecent assault, as framed under Section 3125(a)(7).
J-A09021-23

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Hunzer, 868 A.2d 498, 516 (Pa. Super. 2005); see also 18 Pa.C.S.A. 

§ 3125(a)(7).

For the purpose of our discussion, “sexual intercourse” is defined, 

pursuant to Section 3101 of the Crimes Code, as “[i]n addition to its ordinary 

meaning, includes intercourse per os or per anus, with some penetration 

however slight; emission is not required.” 18 Pa.C.S.A. § 3101; see also 

Commonwealth v. Kelley, 801 A.2d 551, 554 (Pa. 2002). Our Supreme 

Court, in Kelley, supra, stated that, for purpose of Section 3101, the term 

“intercourse” is defined as “physical sexual contact between individuals that 

involves the genitalia of at least one person.” Kelley, 801 A.2d at 555 

(brackets omitted). Thus, the definition of “sexual intercourse” encompasses 

vaginal sex (penetration, however slight, of a vagina with a penis), oral sex 

(penetration, however slight, of a mouth with a penis or penetration, however 

slight, of a vagina with a mouth/tongue), or anal sex (penetration, however 

slight, of the opening of the alimentary canal with a penis).5 Commonwealth 

v. Martin, 101 A.3d 706, 729 (Pa. 2014); see also Kelley, 801 A.2d at 

554-555. Digital penetration, however slight, of the vagina, mouth, or the 

opening of the complainant’s alimentary canal does not qualify as “sexual 

____________________________________________

5 The term “penetration” is defined, inter alia, as the “passage of anything into 

or through a body.” OXFORD ENGLISH DICTIONARY 2119 (Compact Ed. 1971).
J-A09021-23

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intercourse” under Section 3101 of the Crimes Code.

6

 Kelley, 801 A.2d at 

555.

While the crimes of rape of a child and aggravated indecent assault of a 

victim less than 13 years of age both require the Commonwealth to identify a 

child-victim under 13 years of age and to prove an act of penetration, however 

slight, both offenses require proof of at least one element the other does not. 

The crime of rape of a child requires the Commonwealth to demonstrate that 

the defendant engaged in “sexual intercourse” with a child-victim in 

accordance with the definition of “sexual intercourse” found in Section 3101.

Therefore, the crime of rape of a child includes an element not present in the 

crime of aggravated indecent assault of a victim less than 13 years of age.

Similarly, the crime of aggravated indecent assault of a victim less than

13 years of age includes an element that is not included within the statutory 

definition of rape of a child. In particular, as discussed supra, to sustain a 

conviction for aggravated indecent assault of a victim less than 13 years of 

age, the Commonwealth must establish that, except as provided in Section 

3121 (relating to rape), as well as certain other provisions of the Crimes 

Code, the defendant penetrated, however slightly, the genitalia or anus of a 

____________________________________________

6 The Kelley Court explained that digital penetration of a vagina does not 

qualify as “sexual intercourse” because sexual intercourse “within its ordinary 

meaning” involves the penetration of a vagina by a penis. Kelley, 801 A.2d 

at 555. Digital penetration of a victim’s mouth or opening of the alimentary 

canal also does not qualify as “sexual intercourse” because neither act of 

penetration involves the genitalia, i.e., reproductive organ, of one of the 

persons involved. Id.
J-A09021-23

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complainant less than 13 years of age with a part of his or her body for some 

purpose other than a good faith medical, hygienic, or law enforcement 

procedure. See 18 Pa.C.S.A. § 3125(a)(7). By definition, the statutory 

provisions that define the offense of aggravated indecent assault exclude the 

activity (i.e., “sexual intercourse” as defined by Section 3101 of the Crimes 

Code and the interpretive case law) proscribed by Section 3121. As such, the 

“penetration” that must be proven to sustain a conviction for aggravated 

indecent assault cannot be the same type of “penetration” that is criminalized 

under Section 3121 (rape).

Moreover, in the case sub judice, these two crimes did not arise from 

the same criminal act.

When considering whether there is a single criminal act or multiple 

criminal acts, the question is not whether there was a break in the 

chain of criminal activity. The issue is whether the actor commits 

multiple criminal acts beyond that which is necessary to establish 

the bare elements of the additional crime, then the actor will be 

guilty of multiple crimes which do not merge for sentencing 

purposes.

Commonwealth v. Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016)

(citation and quotation marks omitted). “In determining whether two or more 

convictions arose from a single criminal act for purposes of sentencing, [this 

Court] must examine the charging documents filed by the Commonwealth[,]” 

including the criminal information, criminal complaint, and affidavit of 

probable cause. Id. at 1031-1032. Where the documents filed by the 

Commonwealth “describe the operative facts in such a way as to distinguish 
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the specific conduct underlying the offenses,” then the offenses are the result 

of multiple criminal acts for purpose of avoiding merger at sentencing. Id. at 

1032.

Here, the criminal complaint charged Appellant with 4 counts of rape of 

a child based upon the fact that Appellant “did have anal intercourse, vaginal 

intercourse, did perform oral sex on [S.S.], and did receive oral sex from 

[S.S.]” Criminal Complaint, 11/24/20, at Offense #1. Thus, the plain reading 

of these 4 counts of rape of a child, as described in the criminal complaint, are 

based upon episodes involving vaginal, oral, and anal intercourse. Although 

the criminal complaint asserted a generic charge of aggravated indecent 

assault, setting forth a recitation of the statutory crime as the factual basis in 

support of the charge, the affidavit of probable cause attached to the criminal 

complaint stated that Appellant “did on multiple occasions, insert his finger 

into S.S.’s vagina, did force her to perform oral sex on him, did perform oral 

sex on her, and did have both vaginal and anal intercourse with her.”7 

Affidavit of Probable Cause, 11/24/20, at ¶4. Upon review, the 

Commonwealth alleged criminal acts, namely digital penetration, to support a 

charge of aggravated indecent assault of a child, that were distinct and 

delineated from the conduct supporting the rape of a child charges. This 

____________________________________________

7 The distinct and separate criminal acts, which constituted the various 

charges, were further supported by the victim’s testimony at trial. N.T., 

11/15/21, at 96-101.
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distinction between the various criminal acts and corresponding criminal 

charges is further highlighted by the verdict slip in which the 4 counts of rape 

of a child indicated that they were based on the acts of “vaginal penetration 

with penis, anal penetration with penis, oral penetration with penis, and 

vaginal penetration with tongue.” Verdict Slip, 11/16/21, at Counts 1-4. 

Therefore, we conclude, based upon review of the record, that the rape of a 

child (4 counts) and aggravated indecent assault of a child sexual offenses 

were based on discrete and distinct criminal acts for the purpose of avoiding 

merger at sentencing. See Commonwealth v. Montgomery, 687 A.2d 

1131, 1139 (Pa. Super. 1996) (holding that, convictions for rape and 

aggravated indecent assault do not merge for sentencing purposes when each 

crime is predicated on separate and distinct factual findings).8

____________________________________________

8

In his brief Appellant asserts that under the “evidentiary approach” for 

determining whether a particular offense is a lesser-included offense, his 

conviction of aggravated indecent assault of a child is a lesser-included offense 

of rape of a child. Appellant’s Brief at 20. Appellant explains that under the 

evidentiary approach, the “lesser offense may have elements distinct from the 

greater offense and still be considered a lesser-included offense, as long as 

the evidence presented at trial to prove the greater offense actually 

establishes the elements of the lesser offense.” Id., relying on

Commonwealth v. Sims, 919 A.2d 931 (Pa. 2007). We find Appellant’s 

argument to be of no avail and his reliance on Sims, supra, to be misplaced. 

As a preliminary matter, Sims predates Baldwin and its confirmation that 

Section 9765 governs the analysis of whether the merger of sentences must 

be ordered. Moreover, in Sims, our Supreme Court addressed whether a 

defendant could be convicted of a lesser-included offense when he had only 

been charged with the greater offense. Sims, 919 A.2d at 933. The Sims

Court recognized that in determining whether two offenses merged for 

purposes of sentencing, “courts should use the statutory elements approach 

but with an eye to the specific allegations levied in the case.” Id. at 939 
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In his second issue, Appellant challenges the discretionary aspects of 

his sentence, arguing that the trial court abused its discretion when it imposed 

a manifestly excessive sentence. Appellant’s Brief at 7.

It is well-settled that “the right to appeal [the] discretionary 

aspect[s] of [a] sentence is not absolute.” Commonwealth v. 

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where 

an appellant challenges the discretionary aspects of a sentence, 

we should regard his[, or her,] appeal as a petition for allowance 

of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 

(Pa. Super. 2007). As we stated in Commonwealth v. Moury, 

992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his[, 

or her,] sentence must invoke this Court's jurisdiction by 

satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether 

[the] appellant [] 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 [the] 

appellant's brief has a fatal defect, [see] Pa.R.A.P. 2119(f); 

and (4) whether there is a substantial question that the 

____________________________________________

(citation and original quotation marks omitted). The Sims Court explained, 

however, that the statutory elements approach was broader than necessary 

to determine whether a defendant could be convicted of a lesser-included 

offense when charged with a greater offense. Id. Instead, the Sims Court 

held that the evidentiary approach was appropriate to determine whether a 

defendant could be convicted of a lesser-included offense when charged with 

a greater offense. Id.

To the extent Appellant invites this Court to adopt the “evidentiary approach” 

in determining whether offenses merge for sentencing purposes, we decline 

Appellant’s invitation. Rather, our analysis is controlled by the plain language 

of Section 9765 of the Sentencing Code which sets forth the use of the 

statutory elements approach with an eye to the specific allegations levied 

against a defendant to determine if the offenses were part of a single criminal 

act.
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sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

[Moury, 992 A.2d] at 170. We evaluate on a case-by-case basis 

whether a particular issue constitutes a substantial question about 

the appropriateness of sentence. Commonwealth v. Kenner, 

784 A.2d 808, 811 (Pa. Super. 2001).

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original 

brackets omitted). If an appellant fails to challenge the discretionary aspects 

of a sentence either by presenting a claim to the trial court at the time of 

sentencing or in a post-sentence motion, then the appellant’s challenge is 

waived. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) 

(en banc) (citation omitted), appeal denied, 75 A.3d 1281 (Pa. 2013). A 

substantial question exists when an appellant presents a colorable argument 

that the sentence imposed is either (1) inconsistent with a specific provision 

of the Sentencing Code or (2) is “contrary to the fundamental norms which 

underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d 

581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).

Here, the record reflects that Appellant filed a timely notice of appeal 

and properly preserved a challenge to the discretionary aspects of his 

sentence in a post-sentence motion requesting a reduction of sentence on the 

ground that his sentence was excessive and repetitious. Post-Sentence 

Motion, 9/14/22, at ¶4. Appellant also included a Rule 2119(f) statement in 

his brief. Appellant’s Brief at 8. In his Rule 2119(f) statement, Appellant 

argues that the trial court imposed a manifestly excessive sentence when it 

ordered that the majority of the individual sentences were set to run 
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consecutively. Id. Appellant asserts that the consecutive nature of his 

individual sentences was “inappropriate and contrary to the fundamental 

norms underlying the Sentencing Code” based upon the trial court’s 

consideration of “[t]he history and characteristics of Appellant as set forth in 

the pre[-]sentence [investigation] report[,] the [trial] court’s observations of 

Appellant during trial and sentencing[,] the [trial] court’s findings upon which 

the sentence was based[,] and the sentencing guidelines.” Id. (extraneous 

capitalization and original quotation marks omitted, paragraph formatting 

modified). In so arguing, we find that Appellant failed to raise a substantial 

question.

It is well-established that “Pennsylvania law affords the [trial] court 

discretion to impose its sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences already imposed.” 

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal 

denied, 77 A.3d 1258 (Pa. 2013); see also 42 Pa.C.S.A. § 9721(a) (stating 

that, a trial court may order sentences to run consecutively or concurrently). 

“Any challenge to the exercise of this discretion ordinarily does not raise a 

substantial question.” Austin, 66 A.3d at 808 (original quotation marks 

omitted), citing Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.

2011). As this Court has long-held, an appellant is not entitled to a “‘volume 

discount’ for his crimes by having all sentences run concurrently.” 

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). “[T]he 

imposition of consecutive, rather than concurrent, sentences may raise a 
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substantial question in only the most extreme circumstances, such as where 

the aggregate sentence is unduly harsh, considering the nature of the crimes 

and the length of imprisonment.” Lamonda, 52 A.3d at 372. The “key to 

resolving the preliminary substantial question inquiry is whether the decision 

to sentence consecutively raises the aggregate sentence to, what appears 

upon its face to be, an excessive level in light of the criminal conduct at issue 

in the case.” Austin, 66 A.3d at 808 (citation omitted).

In the case sub judice, a jury convicted Appellant of the aforementioned 

sexual offenses based upon his sexual abuse of S.S. and the subjugation of 

her sister, D.W., at times, to witness and be present for episodes of sexual 

abuse. These sexual offenses began when the child-victims were around 8 

years of age (S.S.) and 6 or 7 years of age (D.W.), and continued for several 

years until S.S. was 14 years of age. The sexual offenses began with 

inappropriate touching and kissing and escalated over the years to acts of 

vaginal, oral, and anal intercourse, with multiple separate instances of sexual 

assault. Appellant does not challenge his sentence on the basis that the trial 

court failed to consider the factors outlined in 42 Pa.C.S.A. § 9721(b), failed 

to set forth its explanation for its sentence on the record, or sentenced

Appellant outside of the sentencing guidelines. Rather, in his Rule 2119(f) 

statement, Appellant concedes that the trial court, in sentencing Appellant, 

set forth its reasons for imposing the individual sentences on the record, 

considered the Section 9721(b) factors, including Appellant’s history and 

characteristics, and was aided in fashioning its sentence by consideration of a 
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pre-sentence investigation report. Appellant’s assertion that his overall 

sentence is excessive is merely a request by Appellant for a “volume discount” 

on the number of heinous sexual offenses he committed against two 

child-victims while in a position of trust as their step-father. Thus, in light of 

the criminal conduct at issue, and the length of incarceration, we conclude 

that the trial court’s imposition of consecutive individual sentences in this case 

does not raise a substantial question. See Prisk, 13 A.3d at 533 (concluding

that, an excessive sentence claim, which was based upon the imposition of 

consecutive individual sentences resulting in an aggregate sentence of 633 to 

1500 years’ incarceration, did not raise a substantial question where the 

appellant was convicted of committing 314 sexual offenses against his 

stepdaughter over a 6-year period).9

____________________________________________

9 Assuming arguendo that Appellant’s claim raised a substantial question, his 

challenge to the imposition of consecutive sentences as excessive would still 

merit no relief. In his brief, Appellant argues,

The sentencing guidelines should offer some guidance, any 

guidance, as to whether or not to make certain [sentences run] 

consecutive[ly] or concurrent[ly]. The guidelines are “[w]hatever 

the judge wants” when it comes to consecutive and concurrent 

sentences which is no guidance at all. Considering that this is the 

difference, in this case, of being eligible for parole in 10 years or 

essentially receiving a life sentence, the guidelines are hopelessly 

deficient.

Appellant’s Brief at 23.

Appellant’s argument is an invitation for this Court to step into the shoes of 

the trial court and re-weigh, inter alia, the circumstances of the case and the 

Section 9721(b) sentencing factors, including the history and characteristics 
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Appellant’s third issue challenges the constitutionality of Subchapter H 

of SORNA. Appellant’s Brief at 24-25. In particular, Appellant alleges that 

SORNA improperly “employs an irrebuttable presumption that is not 

universally applicable,” namely that “[s]exual offenders pose a high risk of 

committing additional sexual offenses[.]” Id. at 25; see also 42 Pa.C.S.A. 

§ 9799.11(a)(5) (setting forth the legislative findings in support of SORNA). 

Appellant further argues that SORNA’s punitive nature offends Apprendi v. 

New Jersey, 530 U.S. 466 (2000)10 and Alleyne v. United States, 570 U.S. 

99 (2013),11 results in a criminal sentence in excess of the statutory 

maximums, violates the federal and state constitutional proscriptions against 

cruel and unusual punishment, and breaches the doctrine of separation of 

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of Appellant, to arrive at a different sentence and seemingly afford Appellant 

a volume discount for this crimes. We decline Appellant’s invitation.

As discussed supra, Pennsylvania law affords the trial court discretion to 

impose concurrent or consecutive sentences. See Austin, 66 A.3d at 808; 

see also 42 Pa.C.S.A. § 9721(a). This Court can only vacate a sentence and 

remand for resentencing upon finding one of the errors enumerated in 42 

Pa.C.S.A. § 9781(c). We discern no Section 9871(c) error in the case sub 

judice. Therefore, Appellant is not entitled to relief.

10 In Apprendi, the Supreme Court of the United States held that, “[o]ther 

than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, 

and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.

11 In Alleyne, the Supreme Court of the United States similarly held that, 

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that 

must be submitted to the jury and found beyond a reasonable doubt.” 

Alleyne, 570 U.S. at 103 (citation omitted).
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powers. Appellant’s Brief at 25. Appellant raises these challenges to the 

constitutionality of SORNA – Subchapter H for the first time on appeal.12 See

Appellant’s Rule 1925(b) Statement, 10/11/22; see also Appellant’s Brief at 

24-25; Appellant’s Post-Sentence Motion, 9/14/22.

Generally, an issue that is raised for the first time on appeal is waived, 

and this Court cannot review the issue on appeal. See Pa.R.A.P. 302(a) 

(stating, as a general rule, “[i]ssues not raised in the trial court are waived 

and cannot be raised for the first time on appeal”). Recently, our Supreme 

Court held that constitutional challenges to SORNA – Subchapter H implicate 

the legality of a sentence and cannot be waived on the basis that such claims 

were raised for the first time on appeal. Thorne, 276 A.3d at 1198. Because 

Appellant’s constitutional challenges were presented for the first time on 

appeal, however, there is no factual record before us. Therefore, in 

consonance with Thorne, supra, we remand this case for further 

development of the record related to Appellant’s challenge to the 

constitutionality of SORNA – Subchapter H.

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12 In support of his argument, Appellant relies upon, and cites to, a decision 

by the Court of Common Pleas of Chester County, in Commonwealth v. 

Torsilieri, that, upon remand from our Supreme Court, found 

SORNA – Subchapter H unconstitutional for the reasons Appellant asserts in 

the case sub judice. See Appellant’s Brief at 25, citing Commonwealth v. 

Torsilieri, No. 15-CR-0001570-2016 (C.P. Chester Co., filed Aug. 23, 2022) 

(unpublished trial court opinion); see also Commonwealth v. Torsilieri, 

232 A.3d 567 (Pa. 2020) (remanding the case for further development of 

appellant’s constitutional challenges to SORNA – Subchapter H). The Court of 

Common Pleas of Chester County decision is currently pending before our 

Supreme Court at Supreme Court docket number 97 MAP 2022.
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Convictions affirmed. Judgment of sentence vacated, in part, insofar as 

Appellant is required to comply with the requirements of SORNA – Subchapter 

H. Case remanded for further development of Appellant’s challenge to the 

constitutionality of SORNA – Subchapter H. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/25/2023