J-A24003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ABRAHAM R. CORDOVA

                            Appellant                No. 2624 EDA 2014


               Appeal from the Judgment of Sentence May 2, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005840-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 06, 2015

        Appellant, Abraham Cordova, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after Cordova

pled nolo contendere to charges of attempted murder, attempted rape,

burglary, and possession of an instrument of crime.        Cordova argues that

the aggregate sentence of 25 to 50 years of imprisonment imposed by the

trial court was excessive. We disagree, and therefore affirm.

        At Cordova’s nolo contendere colloquy, Cordova did not challenge the

following factual basis for his plea, as presented by the Commonwealth.

        [At around midnight on the night at issue, Cordova] had given a
        woman by the name of Mary a ride home. [Cordova] thought
        that he was owed something by that woman and attempted to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      get into her home. Mary is not the complainant in the case. She
      shut the door on [Cordova], [Cordova] became enraged and
      angry and went around back to the apartment complex in order
      to gain access to that woman’s apartment. Unfortunately, the
      actual complainant in this case, [L.K.,] who is a 63 year old
      woman, … was in her apartment, … getting ready for bed. So at
      this point in time [Cordova] crawled through her kitchen window,
      which was cracked open slightly. The complaining witness at
      that point in time was only wearing her underwear because she
      was changing for bed. [Cordova] then, utilizing brass knuckles,
      beat the complaining witness in the head between five to 10
      times. He also beat her over the rest of her body, her arms, her
      abdomen, her back, he beat her so badly that she actually, as a
      result, lost all vision in her left eye. The doctor advised her it
      will have to be removed and a glass eye would replace it. She
      also had to have multiple staples in her head, as well as stitches.

      In the course of [] beating the complaining witness with the
      brass knuckles [Cordova] also began to attempt to pull down
      and grab the complaining witness’s panties, and at that time that
      was all she was wearing. The beating of the complaining witness
      and her screams were so loud that the neighbor actually heard
      her and called 911. He could hear the beating and the hitting
      through the walls and could also hear the complaining witness
      scream and heard the defendant utter one phrase “mother
      fucker” during the incident.         The police officers arrived,
      [Cordova] left through the back window leaving the complaining
      witness at that point. … When the police officers arrived the
      complaining witness couldn’t move, she could barely talk. The
      blood in the apartment was so extreme that they couldn’t tell
      what happened to her. … Also, she had significant swelling to the
      brain, it was unsure at that point if this was going to cause brain
      damage. As of this time they are still unsure of the extent of
      how the injuries will affect the complainant. She will lose her left
      eye as a result.

      In addition to that she spent approximately over three months in
      the hospital at Jefferson.

N.T., Plea hearing, 1/24/14, at 15-17. Cordova did not contest this factual

summary, but pled nolo contendere to the charges, claiming that he did not,

in fact, intend to either rape or murder L.K. The trial court requested that a

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Pre-Sentence Investigation (“PSI”) be performed and submitted, and

scheduled a sentencing hearing.

      At sentencing, the Commonwealth conceded, for tactical purposes,

that the possession of an instrument of crime conviction merged for

sentencing purposes with the burglary conviction.       The Commonwealth

argued that the circumstances of the convictions called for an aggregate

term of imprisonment of 30 to 60 years. Cordova presented evidence of his

difficult upbringing in Guatemala, his lack of formal education, a harrowing

experience emigrating to the United States, and his inability to find stable

employment here. Cordova then requested an aggregate sentence of 3.5 to

7 years of imprisonment.

      The trial court found that Cordova had utilized a deadly weapon, the

brass knuckles, in the commission of the crimes. As a result, it utilized the

deadly weapon enhancements provided in the guidelines, and imposed the

following consecutive sentences of imprisonment:       15 to 30 years for

attempted murder, 5 to 10 years for attempted rape, and 5 to 10 years for

burglary.

      Cordova filed a timely motion for reconsideration of sentence, which

the trial court denied. This timely appeal followed.

      On appeal, Cordova contends that the trial court abused its discretion

by imposing an excessive sentence. Cordova concedes that this argument




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constitutes a challenge to the discretionary aspects of his sentence.     See

Appellant’s Brief, at 12.

      “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). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.        See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

      “Two requirements must be met before we will review this challenge

on its merits.”   McAfee, 849 A.2d at 274 (citation omitted).        “First, an

appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Id. (citation omitted). “Second, the appellant must show that

there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code.” Id. (citation omitted). That is, “the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Tirado, 870 A.2d at 365 (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts


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underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).

      In the present case, Cordova’s appellate brief contains the requisite

Rule 2119(f) concise statement, and, as such, is in technical compliance with

the requirements to challenge the discretionary aspects of a sentence.

Cordova argues in his Rule 2119(f) statement that the imposition of

consecutive sentences, as opposed to concurrent sentences, by the trial

court was excessive.     Cordova also argues that the trial court failed to

consider his rehabilitative needs.   Finally, Cordova contends that the trial

court did not consider the guidelines in imposing the sentence for burglary,

as it imposed a sentence outside the guideline ranges. We will address these

separate assertions in sequence.

      First, Cordova argues that the trial court abused its discretion in

imposing “virtually a life sentence[,]” which is unlikely to expire during his

natural life span.   Appellant’s Brief, at 12-14.   Cordova concedes that the

sentences for attempted murder and attempted rape were within the

guideline ranges.    While Cordova highlights the fact that the sentence for

burglary was outside the guideline ranges entirely, for purposes of this

argument, he focuses on the aggregate term of the sentence as excessive.

We will address Cordova’s argument regarding the burglary sentence

individually later in this memorandum.




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      “[W]here a sentence is 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). The imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment. See

id., at 171-172. A sentence may be excessive where the term is “unlikely to

end   during   the   defendant’s   natural    lifespan.”      Commonwealth     v.

Coulverson, 34 A.3d 135 (Pa. Super. 2011).

      Under the circumstances of this case, we conclude that Cordova has

successfully raised a substantial question with this argument. However, we

conclude that based upon the nature of the incident, the status of the victim

as a 63 year old stranger, the horrific injuries sustained by the victim, and

the need to protect society from Cordova ever committing such a crime

again, the aggregate sentence is not excessive.

      Turning to his next argument, Cordova asserts that the trial court

violated 42 Pa.C.S.A. § 9721(b) by failing to consider his rehabilitative

needs.    This   raises   a   substantial    question   for   our   review.   See

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). However,

Cordova did not preserve this issue either at the sentencing hearing, or in

his post-sentence motion.      It is therefore waived.        See Pa.R.A.P., Rule


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302(a); Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274 (Pa.

Super. 2006).

     Finally, Cordova argues that the trial court abused its discretion by

imposing a sentence above even the aggravated range of the guidelines for

the burglary conviction without explanation.   This also raises a substantial

question for our review. See 42 Pa.C.S.A. § 9721(b). However, once again,

Cordova failed to properly preserve this issue in the trial court.      It is

therefore waived. See Pa.R.A.P., Rule 302(a); Shugars.

     As none of Cordova’s issues on appeal merit relief, we affirm the

judgment of sentence.

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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