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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                    v.                 :
                                       :
EDDY PINERO,                           :         No. 3676 EDA 2016
                                       :
                         Appellant     :


          Appeal from the Judgment of Sentence, September 8, 2016,
               in the Court of Common Pleas of Monroe County
              Criminal Division at No. CP-45-CR-0000256-2016


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JUNE 27, 2017

        Eddy Pinero appeals from the September 8, 2016 judgment of

sentence entered in the Court of Common Pleas of Monroe County after a

jury convicted him of simple assault.1 The trial court imposed a sentence of

12 to 24 months of imprisonment. We affirm.

        The record reflects that appellant’s conviction stemmed from an

incident that occurred on January 1, 2016.    On that date, appellant; the

victim, who is the mother of appellant’s five children; a woman with whom

appellant was also romantically involved; and the victim’s friend went to a

motel room. While the four “partied” in the motel room, appellant told the

victim that he wanted her to engage in a “threesome” with appellant and



1
    18 Pa.C.S.A. § 2701(a)(1).
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his other romantic interest.    The victim refused.    At this point, appellant

“started growling like a dog like he always does” and punched the victim in

her left eye, causing her to lose consciousness and fall to the floor.    As a

result of the blow inflicted by appellant, the victim sustained a fracture of

her left orbital bone. (Notes of testimony, 4/26/16 at 6-7, 9-10.)

      The trial court set forth the following procedural history:

            After failing to appear at his scheduled sentencing
            hearing on September 1, 2016, a bench warrant was
            issued for [appellant]. Following execution of the
            bench warrant on September 8, 2016, [appellant]
            was sentenced to twelve (12) months to twenty-four
            (24) months in a State Correctional Institution with a
            time credit of twenty (20) days. On September 19,
            2016, [appellant] filed a Motion for Modification of
            Sentence which we denied following a hearing on
            October 25, 2016.        On November 28, 2016,
            [appellant] filed a Notice of Appeal to the
            Pennsylvania Superior Court. We issued an order
            pursuant to Pa.R.A.P. 1925(b) requesting a Concise
            Statement of Errors Complained of on Appeal and
            [appellant] filed his concise statement within the
            twenty-one (21) day period.

Trial court opinion, 1/10/17 at 1-2.

      Appellant raises the following issue for our review:

            Whether the [t]rial [c]ourt erred and abused its
            discretion by sentencing [appellant] to the statutory
            maximum penalty and high end of the standard
            range sentencing guideline by failing to appropriately
            consider the particular circumstances of the offense,
            thereby creating an excessive and unnecessarily
            punitive sentence beyond that appropriate under the
            circumstances[?]

Appellant’s brief at 4.



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      Appellant challenges the discretionary aspects of his sentence.

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

(citation omitted; brackets in original).

            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


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                   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).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

      Here, appellant filed a timely notice of appeal. Although appellant filed

a timely motion for modification of sentence, he sought reconsideration

based on his contentions that the trial court “sentenced [appellant] on

incorrect sentencing guidelines as a result of an incorrect prior record score”

and because the trial court “sentenced [appellant] while taking into account

inaccurate   information    regarding    the   non-presence   of   the   victim.”

(Appellant’s motion for modification of sentence, 9/19/16 at 2, ¶ 7.)         In

reviewing appellant’s statement of questions involved, appellant complains

that his sentence was excessive. Indeed, within the argument section of his

brief, appellant complains that his sentence was excessive for a variety of

reasons, including his contention that the victim is violent and appellant

could have been justified in fracturing her left orbital bone; the victim’s

injury “was not severe” and only “appeared more severe than it was because

the victim sneezed following the injury”; and because the victim can “see

fine out of the eye.” (Appellant’s brief at 8-9.) Appellant did not properly

preserve a challenge to the excessiveness of his sentence in his motion for

modification of sentence.     Appellant, therefore, has failed to invoke this

court’s jurisdiction.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017




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