J-S24044-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DANIEL CASTRO-JIMENEZ

                            Appellant                No. 1771 MDA 2015


            Appeal from the Judgment of Sentence August 28, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000411-2015;
                            CP-36-CR-0005443-2014


BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED APRIL 12, 2016

       Appellant, Daniel Castro-Jimenez, appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas, following

his open guilty plea to two (2) counts of burglary and one (1) count each of

invasion of privacy, criminal trespass, simple assault, theft by unlawful

taking or disposition, and theft of property lost, mislaid, or delivered by

mistake.1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On July 9, 2014, Appellant entered the home of one of the victims (“Victim

____________________________________________


1
  18 Pa.C.S.A. §§ 3502(a)(1), 7507.1(a)(1), 3503(a)(1), 2701(a)(1),
3921(a), 3924, respectively.
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1”) without permission. Victim 1 woke up and saw Appellant standing near

her bed. Appellant began to remove his belt and told Victim 1, “I’ve been

waiting for you.”   Victim 1 screamed, at which point Appellant punched

Victim 1 in the face and took $69.00 from her purse before fleeing.        In a

separate incident involving a different female victim (“Victim 2”), Appellant

found a set of keys that belonged to Victim 2 and used them to enter her

apartment.     Approximately three weeks later, on October 29, 2014,

Appellant entered Victim 2’s apartment without permission again and

watched her take a shower.        The Commonwealth charged Appellant at

docket No. CP-36-CR-0000411-2015 with burglary, simple assault, and theft

by unlawful taking in connection with the incident on July 9, 2014, involving

Victim 1.    At docket No. CP-36-CR-0005443-2014, the Commonwealth

charged Appellant with burglary, criminal trespass, invasion of privacy, and

theft of property lost, mislaid, or delivered by mistake, in connection with

the October 29, 2014 incident involving Victim 2.

      Appellant pled guilty to all charges on June 16, 2015.         The court

sentenced Appellant on August 28, 2015, to consecutive terms of three (3)

to ten (10) years’ incarceration for each of the two burglary counts, one (1)

to (2) years’ incarceration for theft of property lost, mislaid, or delivered by

mistake, and one (1) to two (2) years’ incarceration for simple assault. The

court merged the remaining charges for sentencing.             Thus, Appellant

received an aggregate sentence of eight (8) to twenty-four (24) years’

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incarceration. Appellant filed a timely post-sentence motion on September

8, 2015 (the day after Labor Day).     The court denied the post-sentence

motion on September 10, 2015. Appellant filed a timely notice of appeal on

October 9, 2015. The court ordered Appellant to file a concise statement of

errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely

complied.

     Appellant raises the following issues for our review:

        WAS THE SENTENCE IMPOSED FOR COUNT ONE ON
        DOCKET 5443-2014, BURGLARY, AND COUNT ONE ON
        DOCKET   411-2015,   BURGLARY,    SO   MANIFESTLY
        EXCESSIVE AS TO CONSTITUTE TOO SEVERE A
        PUNISHMENT WHERE THE [COURT] SENTENCED IN THE
        AGGRAVATED RANGE OF THE SENTENCING GUIDELINES
        BASED ON THE INADEQUATE REASONING THAT THE
        SENTENCING GUIDELINES CONTEMPLATE A BURGLARY
        WHERE THE INTENDED CRIME IS THEFT, AS OPPOSED TO
        THE CRIMES PLEADED TO IN THE INSTANT CASE?

        WAS THE SENTENCE IMPOSED FOR COUNT FOUR ON
        DOCKET 5443-2014, THEFT OF PROPERTY LOST, SO
        MANIFESTLY EXCESSIVE AS TO CONSTITUTE TOO SEVERE
        A PUNISHMENT WHEN THE SENTENCING GUIDELINES
        RECOMMEND A SENTENCE OF RESTORATIVE SANCTIONS
        (RS) AND THE SENTENCE IMPOSED WAS ONE TO TWO
        YEARS IN A STATE CORRECTIONAL INSTITUTE BASED ON
        THE INADEQUATE REASONING BY THE [COURT] THAT THE
        MISLAID PROPERTY WAS USED TO COMMIT A SEPARATE
        OFFENSE FOR WHICH…APPELLANT ALSO PLED GUILTY
        AND   ON    WHICH   APPELLANT   WAS    SENTENCED
        SEPARATELY?

        WAS THE SENTENCE IMPOSED FOR COUNT THREE ON
        DOCKET 411-2015, SIMPLE ASSAULT, ILLEGAL, AS THIS
        CHARGE SHOULD HAVE MERGED WITH COUNT ONE,
        BURGLARY?



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(Appellant’s Brief at 6-7).

      In issues one and two, Appellant argues his sentences for burglary and

theft of property lost were manifestly excessive. Appellant asserts the court

focused exclusively on the seriousness of the offenses, i.e., the sexual

connotations of the offenses, when it imposed sentences in or above the

aggravated range of the sentencing guidelines.       Appellant contends the

court’s reasoning was inadequate       because the burglary statute and

sentencing guidelines do not contemplate an increased penalty for burglary

if the intended crime is something other than theft. Appellant further claims

no facts of record supported the court’s determination that at the time

Appellant took Victim 2’s keys, he intended to use them to commit a more

serious offense.   Appellant emphasizes he has no prior record, has been

continuously employed since 2005, pled guilty to his crimes, and was not

found to be a sexually violent predator. Appellant concludes he is entitled to

resentencing on his convictions for burglary and theft of property lost. As

presented, Appellant challenges the discretionary aspects of his sentence.

See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating

claim that sentence is manifestly excessive challenges discretionary aspects

of sentencing); Commonwealth v. Downing, 990 A.2d 788 (Pa.Super.

2010) (stating claim that court relied on improper factor when imposing

sentence implicates discretionary aspects of sentencing); Commonwealth

v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.

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653, 676 A.2d 1195 (1996) (stating claim that sentencing court failed to

consider    or   did   not    adequately    consider     certain   factors   challenges

discretionary aspects of sentencing).

     Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.         Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

           [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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

     When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness        of    the   sentence      under     the     Sentencing    Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when

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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.”      Sierra,    supra    at    912-13   (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).            A claim that a

sentence is manifestly excessive might raise a substantial question if the

appellant’s Rule 2119(f) statement sufficiently articulates the manner in

which the sentence imposed violates a specific provision of the Sentencing

Code or the norms underlying the sentencing process. Mouzon, supra at

435, 812 A.2d at 627. A claim that the court relied on an improper factor

during sentencing raises a substantial question.           Downing, supra.

Generally, “[a]n allegation that a sentencing court failed to consider or did

not adequately consider certain factors does not raise a substantial question

that the sentence was inappropriate.” Cruz-Centeno, supra at 545.

      “[A] trial court judge has wide discretion in sentencing and can, on the

appropriate record and for the appropriate reasons, consider any legal factor

in imposing a sentence in the aggravated range.”           Commonwealth v.

Hardy, 939 A.2d 974, 980 (Pa.Super. 2007). On appeal, this Court will not

disturb the judgment of the sentencing court absent an abuse of discretion.

Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006). “An abuse of

discretion may not be found merely because an appellate court might have

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reached    a   different   conclusion,      but   requires    a    result     of   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Commonwealth v. Walls, 592 Pa.

557, 564, 926 A.2d 957, 961 (2007).

      Instantly, in his Rule 1925(b) statement, Appellant asserted (1) his

aggregate sentence was manifestly excessive because it was inconsistent

with the protection of the public, the gravity of the offense, and Appellant’s

rehabilitative needs, and (2) the trial court failed to impose an individualized

sentence   that   took     into   account    Appellant’s     personal       circumstances.

Appellant failed to raise his claim that when the court imposed sentence, it

improperly relied on a finding that the burglaries and theft of Victim 2’s keys

had   sexual   connotations.        Therefore,     that    claim    is   waived.       See

Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating

any issued not raised in Rule 1925(b) statement is waived for appellate

review).

      Moreover, when imposing sentence, the court was free to consider the

sexual connotations inherent in Appellant’s burglaries. With respect to theft

of property lost conviction, the record supported the court’s determination

that Appellant stole Victim 2’s keys with the intent to enter her home and

commit a more serious crime. The factual basis for Appellant’s guilty plea

established Appellant found the keys and used them to enter Victim 2’s

apartment with the intent to commit a crime. Appellant made no effort to

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return the keys despite knowing they belonged to Victim 2.             Instead,

Appellant held onto the keys for three weeks and then used them to enter

Victim 2’s apartment a second time to watch her in the shower.            Thus,

Appellant’s claim would merit no relief even if he had properly preserved it.

See Hardy, supra.

      Appellant also waived his claim that the court imposed an excessive

sentence by focusing solely on the seriousness of the crimes because

Appellant failed to raise it in his post-sentence motion or at sentencing. See

Evans, supra.      Moreover, the court had the benefit of a presentence

investigation (“PSI”) report, so we can assume the court was aware of the

relevant information regarding Appellant’s character and weighed those

considerations along with mitigating factors.       See Commonwealth v.

Devers, 519 Pa. 88, 546 A.2d 12 (1988). Further, the court also remarked

at sentencing:

         I’ve reviewed the [PSI report] myself, and it’s relatively
         vanilla. There’s nothing bad in there. And, you know,
         [Appellant has] been working for the last several years.

         So, I mean, there are some things for him, nothing that
         jumps out one way or the other.

(N.T. Sentencing, 8/28/15, at 3). Thus, the record belies Appellant’s claim

that the court failed to consider factors other than the gravity of the offense.

Had they been properly preserved, Appellant’s discretionary sentencing

challenges would not entitle him to relief.



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      In his third issue, Appellant argues he burglarized Victim 1’s residence

with the intent to commit both the theft and the simple assault, so the theft

and simple assault convictions should have merged with burglary for

sentencing. Appellant contends the court improperly noted Appellant might

have had other criminal intentions of a sexual nature when he entered

Victim 1’s home, even though Appellant pled guilty only to burglary, simple

assault, and theft by unlawful taking. Appellant concludes the court properly

merged the theft offense with burglary but erred when it sentenced him

separately on the simple assault conviction. We disagree.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, 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, 620 Pa. 730,

70 A.3d 810 (2013) (citing Commonwealth v. Allen, 24 A.3d 1058, 1062

(Pa.Super. 2011)). The burglary statute states in relevant part:

         § 3502. Burglary

         (a) Offense defined.—A person commits the offense of
         burglary if, with the intent to commit a crime therein, the
         person:

            (1) enters a building or occupied structure, or
            separately secured or occupied portion thereof that is
            adapted for overnight accommodations in which at the
            time of the offense any person is present[.]

                                 *    *    *



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         (d) Multiple convictions.—A person may not be
         sentenced both for burglary and for the offense which it
         was his intent to commit after the burglarious entry or for
         an attempt to commit that offense, unless the additional
         offense constitutes a felony of the first or second degree.

18 Pa.C.S.A. § 3502. “The Commonwealth is not required to allege or prove

what particular crime a defendant intended to commit after his forcible entry

into the private residence.” Commonwealth v. Lambert, 795 A.2d 1010,

1022 (Pa.Super. 2002) (en banc), appeal denied, 569 Pa. 701, 805 A.2d 521

(2002). “The intent to commit a crime after entry may be inferred from the

circumstances surrounding the incident.” Id.

      Instantly, Appellant pled guilty to burglary, theft by unlawful taking,

and simple assault in connection with the incident involving Victim 1. The

theft and simple    assault convictions were graded as second-degree

misdemeanors. At the guilty plea hearing, the Commonwealth set forth the

factual basis for the plea, which stated that Appellant unlawfully entered the

residence of Victim 1, assaulted her by punching her in the face, and took

$69.00 from her purse. The factual basis for the plea was silent regarding

what specific crime(s) Appellant had intended to commit when he entered

Victim 1’s residence.   In light of Section 3502(d), the court then had to

determine what Appellant intended to do when he entered the residence.

      At sentencing, the Commonwealth placed the facts of the incident in

broader context, explaining that Victim 1 awoke to find Appellant standing

near her bed; Appellant told Victim 1 he had been waiting for her and

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started to take off his belt.      Appellant lodged no objection to the

Commonwealth’s recitation of facts, which amplified rather than contradicted

anything established during Appellant’s plea.      Further, these facts were

consistent with the affidavit of probable cause supporting the criminal

complaint. The affidavit stated Victim 1 screamed after Appellant said, “I’ve

been waiting for you” and began to remove his belt, at which point Appellant

suddenly punched Victim 1 in the face repeatedly and fled with her money.

The court sentenced Appellant separately on the simple assault count,

finding that Appellant had not formed the intent to punch Victim 1 in the

face, when he first entered Victim 1’s residence.     Appellant’s initial words

and actions reasonably suggested his intent to commit a different offense.

The simple assault (face punching) occurred suddenly as a result of Victim

1’s scream. The record supports this determination.

     Moreover, the court did merge Appellant’s convictions for burglary and

theft by unlawful taking, concluding Appellant most likely intended to

commit the theft offense when he entered Victim 1’s home.          The record

supports this determination as well.        Nevertheless, the court was not

compelled to find Appellant also intended to commit the simple assault at

the time of entry. Based on the foregoing, Appellant’s sentence for simple

assault was lawful.       See 18 Pa.C.S.A. § 3502(d); Lambert, supra.

Accordingly, we affirm.

     Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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