J-S37036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

HECTOR L. PIMENTEL-CABAN

                            Appellant                   No. 2927 EDA 2014


             Appeal from the Judgment of Sentence May 27, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0003407-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 10, 2015

        Hector Pimentel-Caban appeals from judgment of sentence imposed in

the Court of Common Pleas of Lehigh County after a jury found him guilty of

attempted criminal homicide1 and aggravated assault.2 Upon careful review,

we affirm.

        Pimentel-Caban lived at 944 Pine Street in Allentown, and the victim,

Derrick Smith, lived across the street at 937 Pine Street. At approximately

noon on June 17, 2013, Pimentel-Caban was in front of 937 Pine St. when

he saw Smith exit the building.          Upon noticing Pimentel-Caban, Smith re-

entered the building, and shortly thereafter exited again, this time holding a

____________________________________________


1
    18 Pa.C.S. § 901, 2501(a).
2
    18 Pa.C.S. § 2702(a)(1).
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Verizon cable box that Pimentel-Caban had previously asked Smith to return

to him.     Smith brought it to Pimentel-Caban, saying, “Here is your F-ing

box.”    An exchange of unpleasant remarks led to Smith asking Pimentel-

Caban what he was going to do about it, to which Pimentel-Caban

responded, “I can show you better than I can tell you.” N.T. Trial, 4/3/14,

at 11-12.

        Pimentel-Caban then entered 944 Pine St. where he retrieved a rifle.

As summarized by the trial court:

        According to Pimentel-Caban, . . . [o]nce in possession of the
        rifle, he heard Smith inside [the multi-unit] residence [at 944
        Pine St.] and decided to fire the weapon into the wall on either
        the second or third floor. [Pimentel-Caban] made his way
        downstairs with the rifle, and when Smith saw [Pimentel-Caban],
        he “ran out of the house.” [Pimentel-Caban] pursued him and
        claimed that Smith reached for and then dropped a gun. Upon
        seeing that, [Pimentel-Caban] fired the rifle “into the ground.”
        He also alleged that Smith “tried to come back,” and so he fired
        another shot from the rifle. He then picked up the gun and after
        some verbal jousting between the two, Smith took off.
        [Pimentel-Caban] fired another shot from the rifle, and then
        returned to 944 Pine Street through the back entrance. While
        inside the residence, he observed Smith “lurking” outside, and so
        he decided to exit the residence and confront Smith. He said,
        “Yo, you really want it, man, you really want it.” Smith then
        “took off running.” [Pimentel-Caban] then went to 937 Pine
        Street, where the argument originated, and waited for Smith. A
        short time later, he observed Richard Perez, a resident of 944
        Pine Street, with Smith. He was not sure, but he thought Perez
        was handing Smith the gun [he] had turned over to Perez when
        he returned to 944 Pine Street.

        It was then that [Pimentel-Caban] claimed Smith said, “All right,
        bitch, now is toe to toe,” and with that [Pimentel-Caban] raised
        the rifle and fired. He returned to 944 Pine Street, and Perez
        also returned to the residence and told him, “Yo, you shot
        Derrick, you shot Derrick.” [Pimentel-Caban] retorted that Perez

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      gave him a gun, which Perez denied. No gun was discovered on
      Smith, nor did any witness observe Smith with a gun.

Trial Court Opinion, 12/17/14, at 6-7 (citations omitted).

      On April 3, 2014, after a three-day jury trial, Pimentel-Caban was

found guilty of attempted criminal homicide and aggravated assault.         On

May 27, 2014, the court sentenced him to 20 to 40 years’ incarceration.

Pimentel-Caban filed post-sentence motions, which, after a hearing, were

denied on September 25, 2014. On October 13, 2014, Pimentel-Caban filed

a timely notice of appeal.

      On appeal, Pimentel-Caban challenges the sufficiency of the evidence

supporting his convictions and the discretionary aspects of his sentence.

      With respect to Pimentel-Caban’s first claim:

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

      Section 2501 of the Crimes Code defines criminal homicide as follows:

§ 2501. Criminal Homicide.




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        (a) Offense defined.—A person is guilty of criminal homicide if
        he intentionally, knowingly, recklessly or negligently causes the
        death of another human being.

18 Pa.C.S. § 2501(a).

        Section 901 of the Crimes Code defines criminal attempt as follows:

§ 901. Criminal Attempt.


        (a) Definition of attempt.—A person commits an attempt
        when, with intent to commit a specific crime, he does any act
        which constitutes a substantial step toward the commission of
        that crime.

18 Pa.C.S. § 901(a).

        Pimentel-Caban claims the evidence was insufficient to prove beyond a

reasonable doubt that he possessed the specific intent to kill because he

feared the victim had a firearm he planned to use against him, and

therefore, his culpability should              be   reduced to   attempted voluntary

manslaughter.3

        Here, the trial court concluded that the Commonwealth presented

sufficient evidence to prove beyond a reasonable doubt that Pimentel-Caban

____________________________________________


3
    Section 2503(b) of the Crimes Code provides:

       (b) Unreasonable belief killing justifiable.—A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the circumstances
to be such that, if they existed, would justify the killing under Chapter
5 of this title (relating to general principles of justification), but his
belief is unreasonable.


18 Pa.C.S. § 2503(b).



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had the specific intent that supports his conviction for attempted criminal

homicide.     The Commonwealth presented numerous eyewitnesses who

testified to hearing multiple gunshots, seeing Pimentel-Caban walking with

the rifle recovered at the scene of the shooting, or seeing him chasing after

the victim and pointing the rifle in the direction of the victim.    N.T. Trial,

4/1/14, at 122-24; N.T. Trial, 4/2/14, at 33-37, 74-81, 92-94.            Police

officers also testified to recovering multiple shell casings at the scene of the

shooting that indicate that Pimentel-Caban shot at the victim multiple times.

N.T. Trial, 4/1/14, at 87, 104-06; N.T. Trial 4/2/14, at 119.       As the trial

court notes, the fact that time passed between Pimentel-Caban firing the

rounds from the rifle indicate that he had time to reflect on his decision.

Trial Court Opinion, 12/17/14, at 8. This supports a finding of an intent to

kill.

        Finally, the surgeon who operated on the victim testified that the

victim was shot in the neck, a vital area of the body, which is further

evidence that Pimentel-Caban was aiming at the victim with the intent to kill

him. N.T. Trial, 4/2/14, at 17-19; see Commonwealth v. Patterson, 91

A.3d 55, 66 (Pa. 2014) (“specific intent to kill may be inferred by the use of

a deadly weapon upon a vital organ of the body”). Accordingly, we agree

with the trial court that the evidence, viewed in the light most favorable to

the Commonwealth, was sufficient to sustain the verdict. Lynch, supra.

        Next, Pimentel-Caban claims that his sentence was excessive.         He

argues that the trial court abused its discretion by not reducing his sentence

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because it failed to consider his age, health, and educational and

employment background.

      Pimentel-Caban’s allegation that his sentence was excessive is a

challenge to the discretionary aspect of his sentence, which is not appealable

as of right.    Rather, an appellant challenging the sentencing court’s

discretion must invoke this Court’s jurisdiction by satisfying a four-part test.

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

      We conduct a four-part test 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 the 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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

      Here, Pimentel-Caban filed a timely notice of appeal, and preserved his

claim by raising it in a timely filed post-sentence motion. Pimentel-Caban’s

counsel has also included in his brief a statement pursuant to Pa.R.A.P.

2119(f), claiming that the trial court imposed an excessive sentence.

      Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code.     Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). A substantial question exists “only when the appellant advances a


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colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to   the   fundamental    norms   which   underlie    the   sentencing   process.”

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

banc).

      Generally, “a claim that the sentencing court failed to consider or

accord proper weight to a specific factor does not raise a substantial

question.”     Commonwealth v. Berry, 785 A.2d 994, 996 (Pa. Super.

2001).       Further, this Court has held that “a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”    Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.

2013).     Finally, “where a sentence falls within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code.”     Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010) (citations omitted).

      Here, Pimentel-Caban’s sentence falls within the sentencing guidelines

and his claim that the sentencing court did not consider his educational,

employment, and medical history is without merit. The court considered the

presentence     report,   Pimentel-Caban’s    prior    murder     and    weapons

convictions, as well as testimony at the post-sentence motion hearing

detailing Pimentel-Caban’s background.       Trial Court Opinion, 12/17/14, at

15-16; N.T. Post-Sentence Motion Hearing, 9/16/14, at 5-8. Any mitigating

circumstances that could have reduced Pimentel-Caban’s sentence were

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considered, but ultimately, his prior murder conviction and obvious disregard

for the law and public safety were given greater weight.

      Pimentel-Caban has failed to raise a substantial question, and

therefore is not entitled to review of the discretionary aspect of his sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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