J-S64003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ALEX O’NEIL FIGUEROA                    :
                                         :
                   Appellant             :   No. 1075 EDA 2018

          Appeal from the Judgment of Sentence March 12, 2018
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0003240-2017

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 01, 2019

     Alex O’Neil Figueroa appeals from the judgment of sentence of ten to

twenty years of imprisonment imposed after he entered an open guilty plea

to aggravated assault. We affirm.

     The factual basis for Appellant’s guilty plea was as follows.    On the

afternoon of May 20, 2017, teenager Alberto Justiniano brought an ATV to

Allentown in the back of his truck. While driving around the streets of the

city, Mr. Justiniano was spotted by Appellant, who was eighteen years old at

the time. There is a history of bad blood between the families of Appellant

and Mr. Justiniano, apparently related to the younger sister of the latter

having a child with Appellant’s brother. Appellant ran towards Mr. Justiniano

while clasping the firearm tucked into his waistband. Appellant approached

Mr. Justiniano at his truck, they exchanged words, Appellant drew the firearm

and fired multiple shots at Mr. Justiniano at close range, and Appellant fled.
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Police responded and took Mr. Justiniano to the hospital, where he was treated

for a wound to his forearm. Mr. Justiniano had lasting issues with his hand,

which affected his ability to perform his work painting cars.   See N.T. Guilty

Plea, 1/17/18, at 7-12.

      Appellant was charged with attempted homicide, two counts of

aggravated assault (serious bodily injury and bodily injury, respectively), and

one count of firearms not to be carried without a license. Appellant agreed to

plead guilty to aggravated assault (serious bodily injury) in exchange for a

dismissal of the remaining charges, with no agreement as to sentencing. The

trial court accepted the plea and scheduled sentencing for March 12, 2018.

      At the sentencing hearing, the trial court viewed video footage of the

incident and heard from Appellant and the mother of his girlfriend.         Thus

informed, as well as having the benefit of a presentence investigation report,

the trial court sentenced Appellant to the statutory maximum of ten to twenty

years of imprisonment. Appellant filed a timely post-sentence motion seeking

modification of his sentence, which the trial court denied on March 23, 2018.

Appellant filed a timely notice of appeal, and both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant presents the following question for this Court’s consideration:

      Whether the lower court abused its discretion in imposing a
      manifestly excessive and unreasonable sentence for the
      aggravated assault charge which is at the statutory maximum
      limit when the court failed to consider any significant mitigating
      factors, failed to apply and review any of the necessary factors as
      set forth in 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c)

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      and (d) or otherwise failed to set forth appropriate reasons for its
      deviation from the standard sentencing ranges and sentenced
      [Appellant] based upon the court’s perceived belief as to the
      seriousness of the crime and factors that were already considered
      in the calculation of the appropriate sentencing guidelines?

Appellant’s brief at 7 (unnecessary capitalization omitted).

      Appellant challenges the discretionary aspects of his sentence. As such,

the following principles apply to our consideration of whether review of the

merits of his claim is warranted.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (1) whether appellant has filed a timely notice of
            appeal; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal
            defect; and (4) whether there is a substantial question
            that the sentence appealed from is not appropriate
            under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

      Appellant filed a motion for reconsideration of his sentence and a timely

notice of appeal. Appellant’s brief contains a statement of reasons relied upon

for his challenge to the discretionary aspects of his sentence as required by

Pa.R.A.P. 2119(f). Appellant claims that a substantial question is presented

by the facts that the trial court failed to set forth factually-supported reasons

for sentencing him above the aggravated guidelines range, based its sentence


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upon an improper factor, and ignored mitigating evidence. Appellant’s brief

at 10.

         We conclude that Appellant has raised substantial questions, and hence

proceed to address the merits of his arguments. See, e.g., Commonwealth

v. Downing, 990 A.2d 788, 792 (Pa.Super. 2010) (“Appellant’s claim the trial

court relied on an improper factor raises a substantial question permitting

review.”); Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super.

2005) (concluding substantial question raised by allegation that sentencing

court imposed aggravated-range sentence without considering mitigating

factors); Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003)

(holding substantial question was presented by allegation that trial court failed

to state sufficient reasons for the sentence imposed).

         The following principles apply to our substantive review of Appellant’s

claim.     “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009).         “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Rather,

we review the trial court’s determination for an abuse of discretion.

         In this context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish, by

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      reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      A trial court’s sentence “should call for confinement that is consistent

with the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S. § 9721(b). “When imposing sentence, a

court is required to consider the particular circumstances of the offense and

the character of the defendant. In considering these factors, the court should

refer to the defendant’s prior criminal record, age, personal characteristics

and potential for rehabilitation.”   Antidormi, supra at 761 (citations and

quotation marks omitted).

      Appellant argues that the trial court did not attempt to balance the

mitigating considerations against the seriousness of the offense in imposing a

sentence beyond the aggravated range of the guidelines. Appellant’s brief at

15. Appellant contends that the trial court improperly concentrated on its

belief that the shooting appeared to be an attempted homicide, and “the

possibility that there were other individuals, perhaps children[,] nearby who

could have been struck by a bullet[,]” yet “failed to consider that [Appellant]

may have reasonably acted in the belief that the victim was reaching into the

cab of the pickup truck to obtain a gun to use against him.” Id. Appellant

further complains that the trial court determined that Appellant posed an

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“extreme danger to others even though [his] past history had only limited

incidences of any violence or public danger.” Id. at 16.

      From our review of the sentencing hearing transcript, we discern no

abuse of the trial court’s discretion. First, the trial court reviewed Appellant’s

presentence investigation report, and thus is presumed to have properly

considered and weighed all relevant sentencing factors.              See, e.g.,

Commonwealth v. Kitchen, 162 A.3d 1140, 1147 (Pa.Super. 2017). The

court’s weighing of the mitigating evidence Appellant presented is further

borne out by the record. The court entertained the testimony of Rose Allen,

the mother of Appellant’s girlfriend, that Appellant’s family was “completely

shattered” when his mother had died before Appellant was a teenager, that

he knew that he needed to change, and that, since he had moved into her

home, he had started to change under her guidance.             N.T. Sentencing,

3/12/18, at 6-8. However, the trial court rejected her testimony on the basis

that she had only known Appellant for one year, that Appellant had been

involved in criminal activity since 2010 (including another aggravated assault

in 2014), and that Appellant clearly had not changed, given that he admitted

to the presentence investigator that he was still an active gang member in

prison. Id. at 7-8, 17.

      The court also listened to Appellant’s contentions that Mr. Justiniano was

known to carry a gun, that he had threatened Appellant’s father, and that

Appellant only fired his weapon because he believed Mr. Justiniano was


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reaching into the truck for his own firearm. Id. at 11-12. The trial court did

not find this supported by the video of the incident, which it described as

follows: “This guy on the video stood in the center of the street with kids

freaking running everywhere, aimed that gun just like this and pulled off three

shots.” Id. at 10. Thus, the trial court did not decline to consider Appellant’s

mitigating factors; rather, it determined that they were entitled to little or no

weight under the circumstances. This Court “cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Macias, supra at 778.

      Nor did the trial court fail to place on the record its reasons for imposing

the statutory maximum sentence, which was above the aggravated range of

ninety-six months of incarceration.         The court offered the following

explanation for its decision:

              So [Appellant], whatever the background, whatever you
      thought and were wrong about, it was broad daylight. There were
      little children running everywhere right near the Boys and Girls
      Club, and, you know, just pulled out a gun and started shooting.
      Just imagine how you'd feel if one those bad shots that you made
      hit a kid and killed them. So this, except for your bad aim, would
      have ended your life as well with a life sentence likely.

            So your benefit is they allowed you to plead guilty to the
      aggravated assault. I'm not willing to do anything more for you
      than that. And sometimes the statutory max is there for a reason.
      You fired three shots, not one, and that, to me, is an intent to kill,
      but I will accept your plea bargain as an open plea to the
      aggravated assault . . . . This case is beyond the aggravated
      range for the following reasons:

           [Appellant] is an extreme danger to the community, also a
      danger to other children in the area, [Appellant’s] prior record

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      includes a prior assault, an aggravated assault. [Appellant] took
      multiple shots at the victim with a handgun, and his actions rise
      to the level of attempted homicide.

N.T. Sentencing, 3/12/18, at 19-20 (unnecessary capitalization omitted).

      It is clear that the trial court did not improperly punish Appellant for

charges that had been dismissed in addition to the aggravated assault to

which he had pled guilty, but rather properly considered the extremely

dangerous circumstances of the aggravated assault in determining that the

most severe penalty allowable for that crime was warranted.           Compare

Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.Super. 2005)

(remanding for resentencing where trial court indicated it was imposing

aggravated-range sentence for statutory sexual assault because two counts

of involuntary deviate sexual intercourse and another count of sexual assault

had been nolle prossed as part of the plea agreement), with Commonwealth

v. Miller, 965 A.2d 276, 280 (Pa.Super. 2009) (finding no abuse of discretion

for court to consider risk posed to firefighters and police by fire in murder

victim’s house when sentencing on guilty plea to third-degree murder

although arson charge had been nolle prossed as part of the plea agreement).

      Thus, the record establishes that trial court took into accont the relevant

factors and explained the reasons for its sentence. Appellant had been leading

a life of crime since he was a young boy and previous attempts at rehabilitation

had obviously been unsuccessful, given his escalating violence and adherence

to his gang affiliation while in prison awaiting sentencing.     The particular


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circumstances of this aggravated assault showed not only the intent to kill Mr.

Justiniano, but an indifference to the risk of death or serious injury posed to

others in the city street in the middle of the afternoon. Accordingly, the trial

court acted within its discretion in sentencing Appellant to the statutory

maximum for aggravated assault. No relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/19




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