J. S15045/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
ILDELFONSO CRUZ,                         :         No. 1324 EDA 2016
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, June 12, 2014,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0008945-2011,
                          CP-51-CR-0008946-2011


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 06, 2018

      Appellant, Ildelfonso Cruz, appeals from the June 12, 2014 judgment

of sentence entered by the Court of Common Pleas of Philadelphia County

following his conviction of attempted murder, aggravated assault, possession

of an instrument of crime, rape, kidnapping, and sexual assault. 1 The trial

court sentenced appellant to an aggregate 22½ to 45 years’ imprisonment.

After careful review, we affirm.

      The trial court provided the following factual and procedural history:

            On April 21, 2011, [E.P.2] went to her home located
            at 3325 Argyle Street in Philadelphia to pack clothes

1 18 Pa.C.S.A. §§ 2502, 901(a), 2702(a), 907(a), 3121(a), 2901(a), and
3124.1, respectively.

2 In order to protect her privacy, the victim’s name has been replaced with
initials.
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          to bring to her mother’s house.        [E.P.] asked
          Luis Ramon and his younger brother, Ricardo
          Ramon, to accompany her because she was having a
          problem with her ex-boyfriend, [appellant.]

          [E.P.], Luis, and Ricardo arrived at [E.P.’s] home at
          approximately 11:00 p.m. that night. While [E.P.]
          was packing her belongings, [appellant] arrived.
          [Appellant] did not have a key to [E.P.’s] house nor
          did he have permission to be there. At some point
          thereafter, [appellant] began attacking Luis; he
          grabbed Luis from behind and stabbed him
          repeatedly; Luis sustained five stab wounds to the
          left back and two stab wounds to the left shoulder
          region. Luis eventually managed to escape to a
          nearby home of someone he knew; the resident
          there called an ambulance. Luis was transported to
          Temple Hospital where he was treated for multiple
          injuries including a collapsed lung.         Luis was
          discharged from Temple Hospital on April 26, 2011.

          Moments after attacking Luis, [appellant] grabbed
          [E.P.] and pushed her against a wall; he began
          hitting her in the face with a closed fist. [Appellant]
          then forced [E.P.] to walk to his brother’s house by
          grabbing her and poking her with scissors. Once
          they arrived at [appellant’s] brother’s house, they
          went into a bedroom; [appellant] pushed the bed
          against the door, preventing [E.P.] from leaving.
          [Appellant] proceeded to curse at [E.P.] and hit her
          about her face and body. [Appellant] then threw
          [E.P.] on the floor and stabbed her in her forehead
          with the scissors. At some point, [E.P.], who was
          tired and in pain, fell asleep. When [E.P.] woke up,
          her clothes had been removed and [appellant] was
          having sex with her. [Appellant] eventually drove
          [E.P.] to Einstein Hospital. [E.P.] was treated for
          multiple injuries including lacerations on her
          forehead and left palm. [E.P.] was subsequently
          transferred to Episcopal Hospital for a sexual assault
          evaluation. She was later discharged.

          [Appellant]   was   arrested   on    April   23,
          2011.[Footnote 1] He was charged with two counts


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              of Attempted Murder, two counts of Aggravated
              Assault, two counts of Possession of an Instrument
              of Crime, two counts of Simple Assault, two counts
              [of] Recklessly Endangering Another Person, one
              count of Rape, one count of Kidnapping, one count of
              Burglary, one count of Intimidation of Witnesses or
              Victims, one count of Conspiracy, one count of
              Sexual Assault, one count of Criminal Trespass, one
              count of Indecent Assault, one count of Unlawful
              Restraint, one count of Terroristic Threats, and one
              count of False Imprisonment on Bills of Information
              CP-51-CR-0008945-2011 and CP-51-CR-0008946-
              2011.

                    [Footnote 1] See CP-51-CR-0008945-
                    2011 (charges involving Luis Ramon).
                    The arrest date for the charges involving
                    [E.P.] was April 29, 2011 (CP-51-CR-
                    0008946-2011).

              A jury trial commenced on February 27, 2014.
              [Appellant] was represented by Trevan Borum,
              Esquire. At trial, the Commonwealth presented as
              evidence the live testimony of (1) [E.P.],
              (2) Luis Ramon, (3) Ricardo Ramon, (4) Police
              Officer Mitchell, (5) Police Officer Moore, (6) Police
              Officer   Bowe,     (7)   Police   Officer  Krawcyzk,
              (8) Detective     King,   (9)    Detective   Newbert,
              (10) Dr. Cernetich, and (11) Dr. Goldberg.        The
              defense did not present any witnesses.

              On March 7, 2014, the jury found [appellant] guilty
              of the following charges on [b]ill of information
              CP-51-CR-0008945-2011: [a]ttempted [m]urder,
              aggravated [a]ssault, and [p]ossession of an
              [i]nstrument of [c]rime.     [Appellant] was found
              guilty of the following charges on [b]ill of
              [i]nformation    CP-51-CR-0008946-2011:       [r]ape,
              [k]idnapping, and [s]exual [a]ssault.[ ] On June 12,
                                                     3

              2014, [the trial c]ourt sentenced [appellant] to an
              aggregate sentence of twenty-two and one half
              (22½) to forty-five (45) years’ imprisonment.

3   The jury acquitted appellant of all other aforementioned charges.


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           On June 18, 2014, defense counsel filed a Motion for
           Reconsideration of Sentence. On October 20, 2014,
           [appellant’s] Motion was denied by operation of law.
           On October 24, 2014, [appellant] completed a Notice
           of Appeal form. Although timely, defense counsel
           did not file the Notice; thus, the appeal period
           lapsed.

           On March 17, 2015, [appellant] filed a pro se
           Post-Conviction     Relief  Act   (“PCRA”)   petition.
           J. Matthew Wolfe, Esquire, was subsequently
           appointed to represent [appellant.] Mr. Wolfe filed
           an Amended PCRA petition on August 20, 2015; the
           basis of the petition was that [appellant] was denied
           his rights to due process and effective assistance of
           counsel because trial counsel failed to file a direct
           appeal to the Superior Court despite [appellant’s]
           request to do so. [Appellant] requested that his
           appellate rights as well as his right to file post-
           sentence motions be reinstated nunc pro tunc. On
           April 1, 2016, [the trial c]ourt granted [appellant’s]
           PCRA petition and reinstated [appellant’s] appellate
           rights.

           On April 29, 2016, [appellant] filed a Notice of
           Appeal. On May 5, 2016, [the trial c]ourt directed
           [appellant] to file a Statement of Matters Complained
           of on Appeal pursuant to Pa.R.A.P. 1925(b).
           [Appellant] filed a 1925(b) Statement on May 31,
           2016; [appellant] filed an amended 1925(b)
           Statement on November 22, 2016.

Trial court opinion, 3/13/17 at 1-4 (footnote and citations to notes of

testimony omitted). The record reflects that the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a) on March 13, 2017.

     Appellant raises the following issues for our review:

           1.    Did the lower court err in failing to grant
                 [a]ppellant’s post sentence motion because the
                 sentence was excessive due to the court’s not


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                  adequately      considering   the   mitigating
                  circumstances      surrounding    [a]ppellant’s
                  mental illness?

            2.    Did the lower court err in failing to grant
                  [a]ppellant’s motion to exclude the color
                  photographs of a complaining witness into
                  evidence?

            3.    Did the lower court err in granting the
                  Commonwealth’s      motion     to   admit into
                  evidence other prior criminal acts?

Appellant’s brief at 11.

      In his first issue for our review, appellant avers that the trial court

erred when it failed to “adequately consider the mitigating circumstances

surrounding [appellant’s] mental illness.” (Id. at 15.) Specifically, appellant

contends that the trial court deviated substantially from the Sentencing

Guidelines and did not include a legally sufficient contemporaneous

statement on the record when sentencing appellant in excess of the

guidelines. (Id. at 18).

                  [T]he proper standard of review when
                  considering whether to affirm the
                  sentencing court’s determination is an
                  abuse of discretion. . . . [A]n abuse of
                  discretion is more than a mere error of
                  judgment; thus, a sentencing court will
                  not have abused its discretion unless the
                  record discloses that the judgment
                  exercised was manifestly unreasonable,
                  or the result of partiality, prejudice, bias
                  or ill-will. In more expansive terms, our
                  Court recently offered: An abuse of
                  discretion may not be found merely
                  because an appellate court might have
                  reached a different conclusion, but


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                requires    a     result      of    manifest
                unreasonableness,          or      partiality,
                prejudice, bias, or ill-will, or such lack of
                support so as to be clearly erroneous.

                The    rationale    behind   such     broad
                discretion    and     the   concomitantly
                deferential standard of appellate review
                is that the sentencing court is in the best
                position to determine the proper penalty
                for a particular offense based upon an
                evaluation       of     the       individual
                circumstances before it.

          [Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
          2007)] (internal citations omitted).

          Challenges to the discretionary aspects of sentencing
          do not entitle an appellant to review as of right.
          Commonwealth v. Sierra, 752 A.2d 910, 912
          (Pa.Super. 2000).       An appellant challenging the
          discretionary aspects of his sentence must invoke
          this Court’s jurisdiction by satisfying a four-part test:

                [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, 909 A.2d 303
          (Pa. 2006) (internal citations omitted). Objections to
          the discretionary aspects of a sentence are generally
          waived if they are not raised at the sentencing


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            hearing or in a motion to modify the sentence
            imposed. Commonwealth v. Mann, 820 A.2d 788,
            794 (Pa.Super. 2003), appeal denied, 831 A.2d
            599 (Pa. 2003).

            The determination of what constitutes a substantial
            question must be evaluated on a case-by-case basis.
            Commonwealth v. Paul, 925 A.2d 825, 828
            (Pa.Super. 2007).     A substantial question exists
            “only when 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 912-913.

            As to what constitutes a substantial question, this
            Court does not accept bald assertions of sentencing
            errors. Commonwealth v. Malovich, 903 A.2d
            1247, 1252 (Pa.Super. 2006). An appellant must
            articulate the reasons the sentencing court’s actions
            violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).

     Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Second, appellant filed a motion for reconsideration of sentence

on June 18, 2014, in which he averred that the trial court failed to

adequately consider mitigating circumstances surrounding his mental illness.

Upon further review of his brief, appellant also appears to raise the issue as

to whether the trial court imposed an excessive sentence by deviating from

the sentencing guidelines. (See appellant’s brief at 17-19.)




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      Upon our review of the record, we find that appellant, in his motion for

reconsideration of sentence, did not raise any issue pertaining to the trial

court’s deviation from the sentencing guidelines and has thus waived this

issue. It is well settled that an appellant may not raise an issue for the first

time on appeal. Pa.R.A.P. 302; Commonwealth v. Baez, 169 A.3d 35, 41

(Pa.Super. 2017) (“issues not raised in the lower court are waived and

cannot be raised for the first time on appeal”).        We shall continue our

analysis pertaining only to appellant’s contention that the trial court failed to

adequately consider mitigating circumstances surrounding his mental illness.

      The third procedural prong set forth in Evans requires us to determine

whether appellant’s brief has a fatal defect—or put another way, fails to

include a statement containing the reasons relied on for an allowance of an

appeal “with respect to the discretionary aspects of the sentence.”         See

Pa.R.A.P. 2119(f). Appellant includes such a statement in his brief, in which

he alleges that his sentence is excessive because the trial court failed to

adequately consider the mitigating circumstances surrounding his mental

illness. (Appellant’s brief at 15.)

      Finally, we must now determine whether appellant has raised a

substantial question.     Here, appellant devotes a vast majority of his

argument to his contention that the trial court deviated from the sentencing

guidelines. As we stated supra, this issue has been waived on appeal. The

only reference appellant makes in his argument pertaining to his mental



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illness is as follows:    “The excessiveness claim can only be considered

together with the claim that the court failed to consider mitigating

circumstances.” (Appellant’s brief at 19.) We have specifically held that an

averment that the trial court failed to adequately consider mitigating

circumstances does not raise a substantial question.        Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa.Super. 2010), citing Commonwealth v.

Matroni, 923 A.2d 444, 455 (Pa.Super. 2007), appeal denied, 952 A.2d

675 (Pa. 2008).     Additionally, the trial court had the benefit of a mental

health evaluation and a pre-sentence report.           We therefore find that

appellant failed to raise a substantial question. Accordingly, we do not have

jurisdiction to decide appellant’s first issue on the merits.

      For his second issue on appeal, appellant contends that the trial court

erred when it allowed color photographs of Ramon’s injuries to be shown to

the jury. (See appellant’s brief at 19-20.) When reviewing an admission of

photographs of a victim’s injuries at trial, we are subject to the following

standard:

            “The admission of evidence is solely within in the
            discretion of the trial court, and a trial court’s
            evidentiary rulings will be reversed on appeal only
            upon an abuse of discretion.” Commonwealth v.
            Reid, 99 A.3d 470, 493 (Pa. 2014). An abuse of
            discretion will not be found based on a mere error of
            judgment, but rather occurs where the court has
            reached a conclusion that overrides or misapplies the
            law, or where the judgment exercised is manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. Commonwealth v. Davido, 106
            A.3d 611, 645 (Pa. 2014).


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           When the Commonwealth seeks to introduce
           photographs of a [victim’s injuries] into evidence,
           the trial court must engage in a two-part analysis.
           First, the trial court must examine whether the
           particular      photograph      is     inflammatory.
           Commonwealth v. Murray, 83 A.3d 137, 156 (Pa.
           2013). If the photograph is not inflammatory, the
           trial court must determine whether the photograph is
           of such essential evidentiary value that its need
           clearly outweighs the likelihood of inflaming the
           minds and passions of the jurors. Id.

Commonwealth        v.   Woodard,     129     A.3d   480,   494   (Pa.   2015),

cert. denied, 137 S.Ct. 92 (2016).

     Here, appellant specifically argues that the photographs in question

were “unnecessarily gruesome” and that the “prejudice outweighed the

probative value.”    (Appellant’s brief at 20.)      The record reveals that

appellant only sought to exclude any color photographs of Ramon’s injuries.

(Notes of testimony, 2/28/14 at 4.)       The color photographs in question

depict the nature and extent of Ramon’s injuries, which would not have been

as detectable in a black and white photograph. See Woodard, 129 A.3d at

494-495.    The trial court determined that the photographs were not

inflammatory, and that the need of the photographs outweighed the

likelihood of inflaming the minds and passions of the jury.       We therefore

hold that the trial court did not abuse its discretion when it denied

appellant’s motion in limine and permitted the Commonwealth to introduce

color photographs of Ramon’s injuries into evidence.




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     In his third and final issue, appellant avers that the trial court erred

when it permitted the Commonwealth to introduce evidence of appellant’s

prior bad acts pursuant to Pa.R.E. 404(b). As noted supra, the admission of

evidence is within the discretion of the trial court, and such decisions will

only be overturned upon a finding that the trial court abused its discretion.

See Woodard, 129 A.3d at 494.

           The particular Pennsylvania Rule of Evidence
           governing the admission of “prior bad acts” is
           Pa.R.E. 404(b) which provides, in relevant part:

           (b)   Other crimes, wrongs, or acts.

                 (1)   Evidence of other crimes, wrongs,
                       or acts is not admissible to prove
                       the character of a person in order
                       to show action in conformity
                       therewith.

                 (2)   Evidence of other crimes, wrongs,
                       or acts may be admitted for other
                       purposes, such as proof of motive,
                       opportunity, intent, preparation,
                       plan,   knowledge,    identity  or
                       absence of mistake or accident.

                 (3)   Evidence of other crimes, wrongs,
                       or acts proffered under subsection
                       (b)(2) of this rule may be admitted
                       in a criminal case only upon a
                       showing that the probative value of
                       the    evidence     outweighs    its
                       potential for prejudice.

           Pa.R.E. 404(b)(1)-(3).      Under this rule, the
           admission of prior “bad acts” is inadmissible for the
           sole purpose of proving the defendant has a bad
           character,    or     a     “criminal    propensity.”
           Commonwealth v. Powell, 956 A.2d 406, 419 (Pa.


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            2008).      Nevertheless, this rule permits the
            admissibility of such evidence for other relevant
            purposes such as:

                  showing the defendant’s motive in
                  committing the crime on trial, the
                  absence of mistake or accident, a
                  common scheme or design, . . . to
                  establish identity [,][or] where the acts
                  were part of a chain or sequence of
                  events that formed the history of the
                  case and were part of its natural
                  development.

            Id.   However, admission for these purposes is
            allowable only whenever the probative value of the
            evidence exceeds its potential for prejudice. Pa.R.E.
            404(b)(3).

Commonwealth        v.   Briggs,   12   A.3d   291,   336-337   (Pa.   2011),

cert. denied, 565 U.S. 889 (2011).

      The Commonwealth contends that it sought to introduce evidence of

appellant’s prior bad acts in order to establish E.P.’s lack of consent

pertaining to the rape charge and to establish “the sequence of events that

was part of the history of the case and that formed the natural development

of the facts.” (Commonwealth’s brief at 20.) We shall begin with the use of

prior bad acts to establish lack of consent. Our supreme court has held that

a trial court may admit evidence of a defendant’s prior verbal or physical

intimidation of a victim.   Commonwealth v. Richter, 711 A.2d 464, 467

(Pa. 1998).    Similar to the instant case, our supreme court found that

evidence of prior verbal and physical intimidation was “properly admitted to

prove the element of forcible compulsion or threat of forcible compulsion


                                    - 12 -
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where the victim testifies that she did not consent to the act of intercourse.”

Id. at 468.

      Here, E.P. testified at trial that she used to date appellant. (Notes of

testimony, 3/4/14 at 22-23.) E.P. also testified that over the course of her

relationship with appellant, appellant had physically abused her. (Id. at 41.)

During trial, E.P. further testified that she did not consent to appellant

having sex with her. (See id. at 33-34.) Accordingly, we find that the trial

court properly admitted evidence of appellant’s prior physical abuse of E.P.

in order for the Commonwealth to establish lack of consent pertaining to the

rape charge.

      The Commonwealth also contends that evidence of appellant’s prior

bad acts was admissible in order to establish a sequence of events and to

form the natural development of facts.          (Commonwealth’s brief at 20.)

Indeed, our supreme court has stated that “evidence may also be admitted

where the acts were part of a chain or sequence of events that formed the

history   of   the   case   and   were   part   of   its   natural   development.”

Commonwealth v. Powell, 956 A.2d 406, 419 (Pa. 2008), cert. denied,

556 U.S. 1131 (2009), citing Commonwealth v. Kemp, 753 A.2d 1278,

1284 (Pa. 2000).

      Here, the trial court stated that “the Commonwealth presented

evidence that [E.P.] had recently ended a romantic relationship with

[appellant].   Evidence of [appellant’s] prior assaultive behavior explained



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why [E.P.] asked Luis Ramon and his brother to accompany her while she

packed clothes to bring to her mother’s house[.]”         (Trial court opinion,

3/13/17 at 20.)

        We therefore hold that the trial court did not abuse its discretion when

it admitted evidence of appellant’s prior bad acts pursuant to Pa.R.E. 404(b).

Accordingly, appellant’s third issue is without merit.

        Judgment of sentence affirmed.



        Dubow, J. did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/6/18




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