J-S67029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LUIS ALBERTO CASTRO

                            Appellant                  No. 153 MDA 2015


          Appeal from the Judgment of Sentence November 26, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0001058-2014


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 26, 2016

        Appellant, Luis Alberto Castro, appeals from the judgment of sentence

entered November 26, 2014, in the Court of Common Pleas of Lancaster

County. We affirm.

        The factual history of this matter is well known to the parties, so we

will rely upon the trial court’s recitation of the facts as set forth on pages 1-4

of the March 6, 2015 Rule 1925(a) opinion. Briefly, Castro was charged with

criminal attempt (kidnapping), persons not to possess a firearm, two counts

of terroristic threats, one count of simple assault (domestic violence), and

one count of recklessly endangering another person.1         The charges arose
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 901(a), 6105(a)(1), 2706(a)(1), 2701(a)(3) and 2705,
respectively.
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from an incident in which Castro sent threatening text messages to his wife

in order to persuade her to leave her place of employment and then

attempted to force her into a car at gunpoint. Police responded to the scene

and were able to diffuse the situation and arrest Castro. At the police

station, the victim gave two written statements memorializing the incident,

and showed officers the threating text messages she received from Castro

on the day of the assault.

      On September 11, 2014, Castro entered an open guilty plea to persons

not to possess a firearm. On November 10, 2014, a jury trial commenced

on the remaining charges, and Castro was convicted of one count of

terroristic threats and simple assault.      After reviewing a pre-sentence

investigation report, the trial court sentenced Castro to 5-10 years’

imprisonment for persons not to possess a firearm, 2½ to five years’

imprisonment for terroristic threats, and 1-2 years’ imprisonment for simple

assault.   The convictions were ordered to be served consecutively for an

aggregate sentence of 8½ to 17 years in prison.            Carson filed a timely

motion seeking modification of his sentence, which the trial court denied.

This appeal followed.

      Castro raises the following issues for our review.

      I.    Did the trial court err in denying the Appellant’s post
            sentence motion requesting relief upon review of sentence
            with respect to available mitigating factors, thus
            misapplying the sentencing guidelines, thereby abusing its
            discretion in sentencing the Appellant to an aggregate
            sentence of 8 1/2 to 17 years in a state correctional
            institution?

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      II.    Did the trial court err in denying the Appellant’s Motion in
             Limine    seeking    to    exclude   testimony     privileged
             communication between the Appellant and his wife which
             is protected as confidential communication between
             spouses.

Appellant’s Brief at 6.

      Castro first argues that the trial court erred when it allegedly failed to

consider certain mitigating factors of record in fashioning his sentence. This

argument challenges the discretionary aspects of Castro’s sentence. “A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.”   Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004) (citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [We] 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Castro filed a timely appeal and challenged his sentence in a

post-sentence motion. Castro’s appellate brief also contains the requisite

Rule 2119(f) concise statement, in which he contends that “the [s]entencing

[c]ourt failed to properly take into consideration mitigating factors presented

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by counsel at sentencing.” Appellant’s Brief at 11. We must now determine

whether Castro’s challenge to the discretionary aspects of his sentence

raises a substantial question.

      “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted).        “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”         Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013) (citation omitted).

      Castro’s claim that his sentence was excessive because the trial court

failed to consider mitigating factors which were of record does not raise a

substantial question for our review. “[A]rguments that the sentencing court

failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question whereas a statement that the court failed to consider

facts of record, though necessarily encompassing the factors of § 9721, has

been rejected.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.

Super. 2014) (en banc) (quoting Commonwealth v. Dodge, 77 A.3d 1263,

1272 n.8 (Pa. Super. 2013)).         Here, the trial court had the benefit of

reviewing a pre-sentence investigation report, and thus “we can assume the

sentencing   court   was   aware     of    relevant   information   regarding   the

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defendant’s   character   and    weighed   those   considerations   along   with

mitigating statutory factors.”   Moury, 992 A.2d at 171 (internal citations

omitted).

      Based on the foregoing, we conclude that Castro has not raised a

substantial question that the sentence imposed was inappropriate or

contrary to a fundamental norm underlying the sentencing code.          We are

thus compelled to deny allowance of appeal as to the discretionary aspects

of sentencing. See McAfee.

      Castro also claims that the trial court erred in admitting the

threatening text messages he sent to the victim, his wife, in violation of the

spousal confidential communication privilege.      See Appellant’s Brief at 14.

The “[a]dmission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.

2015) (citation omitted). “An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Ali, 112 A.3d 1210, 1217 (Pa. Super. 2015) (citation

omitted), appeal granted in part by, --- A.3d ----, 2015 WL 7763727 (Pa.

Dec. 2, 2015).

      The spousal communications privilege states as follows.       “Except as

otherwise provided in this subchapter, in a criminal proceeding neither

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husband nor wife shall be competent or permitted to testify to confidential

communications made by one to the other, unless this privilege is waived

upon the trial.” 42 Pa.C.S.A. § 5914.

      Communications between spouses are presumed to be
      confidential, and the party opposing application of the rule
      disqualifying such testimony bears the burden of overcoming this
      presumption. In order for a confidential communication between
      spouses to be protected, knowledge must be gained through the
      marital relationship and in the confidence which that relationship
      inspires. In order to be protected under § 5914, it is essential
      that the communication be made in confidence and with the
      intention it not be divulged. Therefore, whether a particular
      communication is privileged depends upon its nature and
      character of the circumstances under which it was said.
      Accordingly, if the nature of the communication is not imbued
      with an aura of a sharing disclosure precipitated largely due to
      the closeness spouses share, then arguably it is not privileged.

Commonwealth v. McBurrows, 779 A.2d 509, 514 (Pa. Super. 2001)

(internal quotes and citations omitted).

      As this Court noted in McBurrows, the spousal communications

privilege is not absolute.   “[T]here are instances where the circumstances

surrounding marital communications indicate that the communications are

intended to create or further disharmony in the marital relationship; in those

instances, the privilege yields.” Commonwealth v. Spetzer, 813 A.2d 707,

719 (Pa. 2002).     Thus, statements concerning a husband’s actual and

contemplated crimes against his wife are removed from the penumbra of the

privilege. See id. at 721. “It would be perverse, indeed, to indulge a fiction

of marital harmony to shield statements which prove the declarant spouse’s

utter contempt for, and abuse of, the marital union.” Id.


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       Here, the text messages Castro sent to his wife included threats such

as “you wanted psycho, you got it,” “I’m going in shooting,” and “last

chance, come out.”        N.T., Jury Trial, 11/10/14 at 132, 139.   Threats of

physical violence “cannot rationally be excluded on the pretext that

‘considerations of domestic peace and harmony of the marital relation forbid

their disclosure.’” Spetzer, 813 A.2d at 721 (citation omitted).2 As such,

the statements were admissible.

       Judgment of sentence affirmed.

       Judge Bowes joins the memorandum.

       Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2016




____________________________________________


2
  We are unpersuaded by Castro’s assertion that the threats were made in
the spirit of reconciliation.



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