J-S68032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID RIVERA

                            Appellant                No. 2951 EDA 2014


             Appeal from the Judgment of Sentence June 13, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002554-2014


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 23, 2015

        Appellant, David Rivera, appeals from the June 13, 2014 judgment of

sentence of 20 to 40 months of incarceration, imposed by the trial court

after Appellant entered an open guilty plea to stalking. 1,2     After careful

review, we affirm.

        The trial court summarized the evidence presented at the sentencing

hearing as follows.

                    On July 29, 2013, Appellant pled guilty to
              simple assault and terroristic threats against Maria
              Tull.  While incarcerated for th[ese] offense[s],
              Appellant made 132 phone calls to Ms. Tull between
____________________________________________


1
    18 Pa.C.S.A. §2709.1.
2
 The same day, at a separate docket, the trial court sentenced Appellant to
a consecutive two and one-half to five years of incarceration relative to a
probation violation. Appellant did not appeal that sentence.
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          November 2 and November 21, 2013. Her phone
          number was subsequently blocked from his calls on
          November 23[, 2013]. Appellant also sent fourteen
          letters to Ms. Tull between November 12, 2013, and
          May 9, 2014. Ten of the letters were sent from the
          Philadelphia prison system with Appellant’s name
          and prison identification number. The letters were
          sent both to Ms. Tull’s home address and her post
          office box.

                These letters, which were entered into
          evidence, contained threats against Ms. Tull and
          others. Several excerpts were read at sentencing:

                Letter Postmarked 11/9/13: “You’ll know what
                I’m capable of. This will not remain like this.
                Thanks for all the damage you’ve done to my
                life. I imagine you must be happy at having
                played my feelings and mean [sic]. Because of
                you I have fallen into a deep depression and
                have tried to slit my wrists thanks to you. But
                you will pay for all this you done to me.”

                Letter Postmarked 11/12/13: “To Maria the
                miserable whore: You should not have played
                with me.       You should not have taken
                advantage of me.       I am your worse [sic]
                enemy. All of this love I have for you will turn
                to hate. I want to see you dead. All this is for
                the moron you are with: Get ready to face
                me. He and his family are sentenced. You
                know I just don’t talk. I am a real man. When
                I get out of here I’m going to look for you and
                you already know what will happen to you.”

                 Ms. Tull testified in front of the indicting grand
          jury regarding this correspondence. Following her
          testimony she continued to receive threatening
          letters.

                Letter Postmarked 2/25/14: “What the f[***]
                do you have against me that you only play
                with me? Why do you not answer my letters
                or phone? I will found [sic] out what is going
                on with you and Tommy again. I will find out if
                you are seeing him again.”

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                  Letter Postmarked 3/1/14: “And I will tell you
                  if you are pregnant it is better for you to abort
                  it. I am telling you you will find out who I am.
                  Tell the one who you are with to get ready
                  because I won’t let things go. I hope you stop
                  hurting me and stop calling the bitch DA who
                  keep singing [sic] me. Stop sending letters I
                  send you to that bitch.”

                  Letter Postmarked 3/7/14: “I’m telling you if
                  you hid that you are pregnant I swear either
                  you have a miscarriage and tell the other
                  person that his days are numbered. You know
                  I know your date of birth and your social
                  security number. I don’t want to hurt you but
                  you decide if you come see me; otherwise I
                  will not allow any more mockery.”

                   Appellant pled guilty to the present charge of
            stalking and was sentenced on the same day. His
            mother, Maria Rivera, addressed the court during
            sentencing. Appellant’s sister, Gina Sepulveda, also
            testified on his behalf. Both women’s statements
            insisted that Ms. Tull was largely to blame for
            Appellant’s actions. When Appellant spoke on his
            own behalf, he also blamed Ms. Tull for his actions.

Trial Court Opinion, 12/15/14, at 2-3 (citations to notes of testimony

omitted).

     In addition to the foregoing evidence, the Commonwealth stated at the

sentencing hearing as follows.

                   What is especially concerning for the
            Commonwealth is [Appellant’s] prior history with
            another woman. And I know Your Honor will take
            this for what it is, he was arrested, he was convicted
            after Municipal Court trial for simple assault and
            resisting arrest. The simple assault was domestic in
            nature.    [The v]ictim in that case was Barbara
            Maldanado.



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N.T., 6/13/14, at 29. The Commonwealth noted that Appellant appealed the

conviction and it was nolle prossed, although Appellant was arrested for a

second offense against Ms. Maldonado, and that case was withdrawn at the

Municipal Court level.       Id. at 30-31.     Appellant’s counsel objected to the

Commonwealth’s references to Appellant’s history with Ms. Maldanado, but

the trial court responded, “I think it is rel[evant] to determine [an]

appropriate sentence, like I heard about a lot of other things today.” Id. at

30.

       At the conclusion of the June 13, 2014 sentencing hearing, the trial

court sentenced Appellant on the stalking charge to 20 to 40 months of

incarceration.       On    June    23,    2014,   Appellant   filed   a   motion   for

reconsideration of sentence, which the trial court denied on September 10,

2014. Appellant filed a timely notice of appeal on October 10, 2014.3

       On appeal, Appellant presents the following issue.

              Did not the lower court err and abuse its discretion
              when it imposed an aggravated sentence based on
              an impermissible factor, specifically, [A]ppellant’s
              prior arrests, which did not result in convictions, but
              were nonetheless treated as establishing criminal
              conduct?

Appellant’s Brief at 3.


____________________________________________


3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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      We initially note that Appellant’s argument on appeal pertains to the

discretionary aspects of his sentence.   “Pennsylvania law makes clear that

by entering a guilty plea, the defendant waives his right to challenge on

direct appeal all non[-]jurisdictional defects except the legality of the

sentence and the validity of the plea.”    Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d

319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea,

he does not waive claims regarding the discretionary aspects of the sentence

“because there was no agreement as to the sentence [the defendant] would

receive.”   Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013)

(citation omitted).   Nevertheless, “[t]here is no absolute right to appeal

when challenging the discretionary aspect of a sentence.” Commonwealth

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an

appellant advances an argument pertaining to the discretionary aspects of a

sentence, this Court considers such an argument to be a petition for

permission to appeal.    Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal denied, 104

A.3d 1 (Pa. 2014).      “[A]n [a]ppeal is permitted only after this Court

determines that there is a substantial question that the sentence was not

appropriate under the sentencing code.” Commonwealth v. Cartrette, 83

A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted).


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      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether   a     petition   for   permission   to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

              (1) [W]hether appellant has filed a timely notice of
              appeal, Pa.R.A.P. 902, 903; (2) whether the issue
              was properly preserved at sentencing or in a motion
              to reconsider and modify sentence, 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).

Id.

      Instantly, Appellant filed a timely motion for modification of sentence

and notice of appeal. Also, he has included a Rule 2119(f) statement in his

brief. Appellant’s Brief at 8-9. We therefore proceed to determine whether

Appellant has raised a substantial question for our review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “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


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to the fundamental norms which underlie the sentencing process.”              Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

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

whether a substantial question exists.”    Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

      In this case, Appellant avers that the trial court abused its discretion,

and asserts that the trial court “erred when it treated [Appellant’s] prior

arrests as having established criminal conduct.”         Appellant’s Pa.R.A.P.

2119(f) Statement, Appellant’s Brief at 9; see also Appellant’s Statement of

the Question Involved, id. at 3 (stating that the trial court erred in relying

on Appellant’s prior arrests “which did not result in convictions, but were

nonetheless treated as establishing criminal conduct”). Given these claims,

we   conclude    that   Appellant   has    raised   a   substantial   question.

Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006) (holding a

claim that the trial court relied on impermissible factors, such as uncharged

conduct in imposing its sentence, raises a substantial question), appeal

denied, 906 A.2d 542 (Pa. 2006); see also Commonwealth v. Bowen,

975 A.2d 1120, 1122 (Pa. Super. 2009) (holding a substantial question is

raised when an appellant alleges that the sentencing court considered

improper factors when rendering an aggravated range sentence).           Upon

review, however, we are not persuaded that Appellant is entitled to relief.




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      At sentencing, Appellant had an offense gravity score of 6 and a prior

record score of 1, resulting in a guideline sentence of 6 to 14 months, plus

or minus 6 months. N.T., 6/13/14, at 11, 23. Appellant’s counsel requested

a sentence of 6 to 23 months. Id. at 24, 26. The Commonwealth requested

a sentence of “two to four years … because [Appellant] has essentially been

terrorizing this woman since February of 2013. … [Appellant] actually got out

when he pled guilty on July 29 of 2013 for committing crimes against this

woman. And within two weeks, he was stalking her again, following her to

her place of work, waiting in the parking lot, vandalizing her car.” Id. at 27.

      After hearing from counsel, the trial court commented on the record at

length.

                  I have considered the presentence, mental
            health report, the arguments of counsel, the history
            of the underlying cases, and of course what
            [Appellant] has to say and what the witnesses have
            had to say here.

                  This case started with a negotiated – well, my
            involvement started with a negotiated guilty plea I
            believe it was July 29th of 2013 in which [Appellant]
            pled guilty to simple assault. I gave [Appellant] 3 to
            23 months with immediate parole and …, 3 years
            reporting probation.     [Appellant] was to go to
            Menergy for battered intervention program, stay-
            away domestic violence supervision.

                  I believe that within a short period of time, it
            was August, an incident occurred, and [Appellant
            was] taken into custody. And we had a VOP hearing
            in October. And [the] original incident, [Appellant
            was] on I-95 going after her, and some other things,
            I found [Appellant] in violation October 18, 2013.
            And I gave [Appellant] back time on simple assault
            and five years’ probation.

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                By December 5, 2013, I believe that was when
          [Appellant was] arrested for what occurred after I
          sentenced [him] on the probation. I don’t know,
          [Appellant], what causes all this. What I hear from
          your family is that the complainant is a horrible
          person who caused this, that she is the one, and you
          are shaking your head as I’m saying this, that
          somehow she is the demon who teases you like a
          dog with red meat or something, and everything that
          has occurred here is because of what she has done.

                                   ***

               … And the decision that is going to be made
          here is going to be made on the evidence that I
          heard, the standard of law that we have in the
          Commonwealth of Pennsylvania.         And I don’t
          understand why you can’t stay away from her.

                I understand there [are] some mental health
          issues and I read about those. But this is beyond
          anything I have seen in the case. The way these
          cases end, you know how they usually end
          eventually?    Murder-suicide.  And [Appellant is]
          shaking [his] head “yes” as I’m saying that. That I
          don’t want to happen here. …

               And I don’t know what to do to protect the
          complainant except to give [Appellant] the following
          sentence …

                 On the VOP case, terroristic threats, it’s going
          to be two and a half to five years in state prison. …
          As to the new case that [Appellant] pled guilty to
          today, which is the stalking case, in which guidelines
          call for 6 to 14 months, on that case I am going to
          give [Appellant] a sentence of 20 to 40 months
          which will be consecutive to the two-and-a-half to
          five years. …

               I don’t know what else can be done except I
          hope that by the time when [Appellant is] released,
          [Appellant], you will not be doing this, and the
          complainant will be somewhere else. You have had
          numerous chances. But all I’m hearing is [it is] the
          complainant’s fault, it is [the] complainant who did

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           this.   Those letters were a window into who
           [Appellant was].   And unfortunately [Appellant’s]
           other actions were another window. A window is –
           what happened with the previous woman is also a
           window.

                                   ***

                 And I don’t know what else to do with
           [Appellant].   It is with reluctance that I give
           [Appellant] this sentence.    But I’m fearful that
           without this sentence, there would be a murder-
           suicide because of the way [Appellant] think[s] and
           act[s] and what I have seen while I have had
           [Appellant] under my supervision.

N.T., 6/13/14, at 35-40.

     Upon review, we conclude that the trial court’s reasoning is supported

by both the record and established case law.   We have explained that “a

proceeding held to determine sentence is not a trial, and the court is not

bound by the restrictive rules of evidence properly applicable to trials.”

Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999)

(citations omitted), appeal denied, 749 A.2d 468 (Pa. 2000). “Rather, the

court may receive any relevant information for the purposes of determining

the proper penalty.” Id. (citations omitted); see also Commonwealth v.

duPont, 730 A.2d 970, 986 (Pa. Super. 1999) (“in sentencing, a court is not

limited to consideration of information which would be admissible evidence

at trial”), appeal denied, 749 A.2d 466 (Pa. 2000), cert. denied, duPont v.

Pennsylvania, 530 U.S. 1231 (2000).        Such information may include

evidence of prior arrests or criminal conduct, even where a conviction did

not arise from that behavior. See P.L.S., supra (“the fact that a defendant

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is guilty of prior criminal conduct for which he escaped prosecution has long

been an acceptable sentencing consideration”).

     Based on the foregoing, we discern no error by the trial court and thus

affirm the June 13, 2014 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




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