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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

EDWIN VALDEZ,

                             Appellant                      No. 263 EDA 2014


       Appeal from the Judgment of Sentence Entered January 15, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002991-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED OCTOBER 13, 2015

        Edwin Valdez (Appellant) appeals from the judgment of sentence of

seventeen and one-half to thirty-five years’ incarceration, imposed January

15, 2014, following a jury trial resulting in his conviction for aggravated

assault,    possession      of   an   instrument   of   crime   (PIC),   and   criminal

conspiracy.1 We vacate the judgment of sentence and remand.

        We adopt the following statement of facts:

        [Appellant] worked as an assistant electrician for Carlos Molina’s
        construction company.        [Appellant] knew the complaining
        witness, Benito Bravo, as [Appellant] was a regular customer at
        Mr. Bravo’s grocery store at 1646 North 29th Street. When Mr.
        Bravo sought to have construction work done on the 2nd and 3rd
        floors of his store, [Appellant] put him in touch with Mr. Molina.
        A contract was agreed upon and work commenced. [Appellant]
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1
    Respectively, 18 Pa.C.S. §§ 2702(a)(1), 907(b), and 903(a).
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     served as the go[-]between for the parties, often collecting
     payments from Mr. Bravo and supervising the construction work
     on behalf of [Mr.] Molina. Sometime later, the work halted for
     lack of proper permits and a dispute arose over the contract.
     Mr. Bravo had paid approximately $60,000 but had complaints
     about the work and its completion, which he raised with both
     [Mr.] Molina and [Appellant]. Mr. Bravo hired an attorney and
     pursued civil legal action against Mr. Molina based upon the
     contract. Mr. Bravo’s attorney sent numerous demand letters to
     Mr. Molina.     Mr. Bravo then relayed this information to
     [Appellant], who in turn warned Mr. Bravo against such action
     on numerous occasions, indicating that [Mr.] Molina was
     dangerous. On the night of December 23, 2008, [Appellant] and
     Mr. Bravo spoke on the phone. [Appellant] asked Mr. Bravo if he
     had a Christmas present for him, which Mr. Bravo took as a
     strange threat.

     On the morning of December 24, 2008, Mr. Bravo exited his
     house at approximately 7:40 a.m. to go open up his store. He
     was startled to see one man appearing from behind his van. The
     man told Mr. Bravo not to move. Mr. Bravo identified the man
     as [Appellant] by his face and voice. [Appellant] pointed a gun
     at Mr. Bravo.     Mr. Bravo closed his eyes in surprise, and
     expecting to be shot, he backed up. He opened his eyes[] and
     saw two other men, whom he was unable to identify, also
     pointing guns at him. Mr. Bravo then pulled his own concealed
     gun, which he was licensed to carry, and heard one of the men
     say, “Shoot, he’s armed!” Upon hearing this, Mr. Bravo rolled to
     the ground to get behind a trashcan. He then heard multiple
     gun shots hit the trash can, and Mr. Bravo was struck twice in
     the process, in the thigh and groin. The men fled the scene. Mr.
     Bravo shouted at the fleeing men and then shouted for help once
     he realized he was wounded.

     Mr. Bravo’s wife, Andrea Rodriguez, was equally familiar with
     [Appellant] from seeing him at the store as a customer and from
     his presence during the construction project. Ms. Rodriguez
     witnessed part of the events from the kitchen window where she
     stood as her husband left the house that morning. She saw
     three men pointing guns at her husband. When [Appellant] saw
     her watching from the window approximately 8 feet away, he
     turned and pointed a gun at her. She ran away from the window
     to go call the police, but before she placed the call[,] she heard
     multiple shots.     Ms. Rodriguez thought they had killed her

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       husband, but moments later she went outside to find her
       husband alive and writhing on the ground bleeding. The police
       arrived in a few minutes, and Mr. Bravo was transported to the
       hospital by the first officer on the scene. Mr. Bravo identified
       [Appellant] as one of the shooters to this officer after arriving at
       the hospital … and identified [Appellant] again for the detective
       who later interviewed Mr. Bravo at the hospital.

       While Mr. Bravo was transported to the hospital, Ms. Rodriguez
       remained with their two children at the house. A few hours
       later, while visiting her husband in the emergency room, Ms.
       Rodriguez spoke with the detective and identified [Appellant] as
       one of the shooters.

Trial Court Opinion, 01/30/2015, at 2-4.

       In August 2013, a jury convicted Appellant of the charges set forth

above.2     Thereafter, in October 2013, the trial court held a sentencing

hearing.     At the sentencing hearing, Appellant’s daughter and pastor

testified on Appellant’s behalf; the victim, Mr. Bravo, testified on behalf of

the Commonwealth. See generally Notes of Testimony (N.T. Sentencing),

10/16/2013.

       Appellant had a prior record score of zero, and his most severe crime,

aggravated assault (including a deadly weapon enhancement), carried an
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2
  In March 2009, the Commonwealth filed formal charges against Appellant
for his assault upon Mr. Bravo that also included criminal attempt (murder of
the first degree), 18 Pa.C.S. § 901(a); simple assault, 18 Pa.C.S. § 2701(a);
recklessly endangering another person, 18 Pa.C.S. § 2705; and additional
weapons offenses. See Bill of Information, 3/12/2009. A first jury trial,
which commenced in February 2012, resulted in a mistrial. See Notes of
Testimony, 02/17/2012, at 6. A second jury trial commenced in August
2013. At some point prior to commencement of the second trial, the
Commonwealth nolle prossed these charges. See Notes of Testimony,
08/19/2013, at 8; see also Criminal Docket CP-51-CR-0002991-2009 at 6.



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offense gravity score of ten. The sentencing guidelines suggested: (1) forty

to fifty-four months’ incarceration, plus or minus twelve months, for the

aggravated assault; (2) restorative sanctions to three months’ incarceration,

plus or minus three months, for PIC; and (3) thirty to forty-two months’

incarceration, plus or minus twelve months, for the conspiracy.     See Trial

Court Opinion at 5-6.

      Nevertheless, following testimony, the court imposed sentence in the

following manner: (1) for aggravated assault, ten to twenty years’

incarceration; (2) for PIC, two and one-half to five years’ incarceration; and

(3) for conspiracy, five to ten years’ incarceration. The court directed each

sentence to be served consecutively, for an aggregate sentence of seventeen

and one-half to thirty-five years.

      The court acknowledged the severity of the sentencing, explaining:

      What I do know is you were sent there to do a job for Mr.
      [Molina] to take this man out who had filed a lawsuit against
      him. … [Y]ou knew where he lived and you knew that he held
      cash there and you went there to rob him with two other people
      armed with the full intent of taking him out.

      I do mean I believe you would have gone as far as killing him. I
      believe that is how cold your heart is. When you knew he was
      coming down the stairs at 7:00 to go to work, I think you would
      have gone as far as killing him. If it is not for the fact that he
      [was carrying] a weapon, he wouldn’t be sitting here.

      …

      And I believe when you took him out, death or incapacitation,
      you were going upstairs [into the house] and you were going to
      take out the wife and the kids and anyone else it took to get to
      the money, because you wanted the money for you or Mr.

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      [Molina], I don’t know. But you went there as [an] assault team
      and you went there with weapons of destruction and went there
      to kill or take him out by permanently disabling him for the
      money.

      …

      This calls for a severe sentence and no mitigation. [Five] to
      [ten] is not enough. You are a man … who is capable of cold[-]
      blooded murder.

      …

      Sir, you deserves [sic] every moment of this sentence because
      you went in there to take out [four] bodies one way or another.

N.T. Sentencing at 16-17.

      Following imposition of sentence, Appellant challenged the court,

suggesting that “there is really no evidence to support what you have stated

with regard to going there to commit one murder much less four.”      Id. at

17.   The court responded, stating, “I said one way or the other death or

incapacitation and I believe he would have done it.” Id.

      Appellant timely filed a post-sentence motion, asserting that his

sentence was excessive because: (1) the court failed to credit evidence of

mitigation; (2) regarding both the aggravated assault and PIC convictions,

the court imposed the statutory maximum sentence; (3) regarding the PIC

conviction, the court failed to consider and/or place on the record the

sentencing guidelines range; and (4) the reasons articulated by the court

were based upon speculation. See Motion for Reconsideration of Sentence,

10/28/2013, at 2. Appellant further asserted that his sentence violated the


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Eighth and Fourteenth Amendments to the United States Constitution as

cruel and unusual punishment.           Id.    The court denied Appellant’s motion.

See Trial Court Order, 12/17/2013.

       Appellant timely appealed.        However, in September 2014, this Court

dismissed his appeal for failure to file a brief.            See Order of Court,

09/10/2014. Appellant sought and was granted reinstatement of his appeal.

See    Application    to   Reinstate     Appeal,   09/22/2014;    Order   of   Court,

09/26/2014. Thereafter, Appellant sought remand to the lower court to file

a Pa.R.A.P. 1925(b) statement nunc pro tunc. See Application for Remand,

10/28/2014. This Court granted Appellant relief and directed the lower court

to file a responsive opinion. See Order of Court, 11/14/2014.

       Appellant filed a Rule 1925(b) statement in which he asserted error on

the following grounds: (1) the court stated inadequate reasons for its

deviation from the sentencing guidelines; (2) the court violated Appellant’s

due process rights; and (3) the court erred in denying Appellant’s motion for

a mistrial based upon the cumulative effects of inappropriate statements and

actions of the prosecutor.3 See Appellant’s Pa.R.A.P. 1925(b) Statement at



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3
  Appellant has abandoned the third issue raised in his Rule 1925(b)
statement regarding his motion for a mistrial. See generally Appellant’s
Brief (stating no question and failing to develop any argument in this
regard).




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2. The lower court complied with the order of this Court, filing a responsive

opinion. Accordingly, this matter is now ripe for review.

      Appellant raises the following, compound issue:

      Did not the lower court err as a matter of law and abuse its
      discretion in imposing a sentence of incarceration totaling
      [seventeen] and one-half to [thirty-five] years[,] inasmuch as
      the sentence was manifestly excessive and unreasonable[;] the
      court failed to adequately consider [A]ppellant’s background[;]
      the court ostensibly punished him for crimes the court believed
      he would have committed, but which were not charged, nor
      proven[;] and the court failed to state sufficiently adequate,
      legal reasons for the grave deviation from the sentencing
      guidelines[;] and was not such an excessive sentence a violation
      of defendant’s right to due process under the Pennsylvania and
      United States Constitutions?

Appellant’s Brief at 3. Essentially, Appellant contends that the lower court

(1) abused its discretion and (2) violated his right to due process, by

imposing a manifestly excessive sentence. Id.

      Appellant challenges discretionary aspects of his sentence. See, e.g.,

Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008)

(recognizing   that   a   claim   that   a   sentence   is   excessive   challenges

discretionary aspects of the sentence). Such appeals “are not guaranteed by

right.” Commonwealth v. Grimes, 982 A.2d 559, 565 (Pa. Super. 2009).

      It is well-settled that issues challenging the discretionary aspects
      of sentencing must be raised in a post-sentence motion or by
      raising the claim during the sentencing proceedings. Absent
      such efforts, an objection to a discretionary aspect of a sentence
      is waived.

Commonwealth v. Oree, 911 A.2d 169, 172 (Pa. Super. 2006) (citation

omitted).   “This failure is not cured by submitting the challenge in a Rule

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1925(b) statement.” Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.

Super. 2003).

       Following our review of the record, we note that Appellant failed to

articulate a due process claim at his sentencing hearing or, thereafter, in his

post-sentence motion. Its subsequent inclusion in Appellant’s Rule 1925(b)

statement does not cure these failures.          Id.   Accordingly, we deem this

claim waived.4

       This does not end the procedural prerequisites to substantive review.

       Pa.R.A.P. 2119(f) requires an appellant to set forth in his brief a
       concise statement of reasons relied upon in support of granting
       allowance of appeal with respect to the discretionary aspects of
       his or her sentence. The concise statement must show that
       there is a substantial question that the sentence imposed was
       not appropriate under the Sentencing Code in order for this
       Court to grant an allowance of appeal. A substantial question
       exists where the appellant presents a plausible argument that
       the sentence violates a provision of the Sentencing Code or is
       contrary to the fundamental norms underlying our sentencing
       scheme.

Grimes, 982 A.2d at 566 (quotation marks and citations omitted). Whether

an appellant presents “a substantial question is to be evaluated on a case-

by-case basis.”       Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.

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4
  Appellant also fails to develop an argument in support of this claim. See
Appellant’s Brief at 15-19. Thus, it is waived for this reason as well. See,
e.g., Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”), cert. denied, 562 U.S. 906
(2010); Pa.R.A.P. 2119(a).



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Super. 2013) (quoting Commonwealth v. Ferguson, 893 A.2d 735, 737

(Pa. Super. 2006)).

         Appellant complied with Rule 2119(f), including a statement of the

reasons for allowance of appeal in his brief to this Court.     See Appellant’s

Brief at 9-12. Therein, Appellant purports to raise two substantial questions,

asserting that the lower court imposed an excessive sentence because (1) it

failed to consider his rehabilitative needs by disregarding mitigating

evidence, see id. at 10, 11-12; and (2) it failed to put legitimate reasons on

the record to support its deviation from the sentencing guidelines. See id.

at 11.

         However, the Commonwealth contends that Appellant has waived

consideration of his claim that the lower court failed to consider his

rehabilitative needs, noting that Appellant failed to reference this claim in his

Rule 1925(b) statement. We agree.

         Rule 1925(b)(4)(ii) provides, in relevant part, that “[t]he [s]tatement

shall concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the judge.”

Failure to raise an issue in a Rule 1925(b) statement will result in waiver.

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)); see also

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (finding

waiver where Rule 1925(b) statement was too vague).


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       Here, Appellant raised three issues in his Rule 1925(b) statement,

asserting (1) the court stated inadequate reasons for its deviation from the

sentencing guidelines; (2) the court violated Appellant’s due process rights;

and (3) the court erred in denying Appellant’s motion for a mistrial.      See

Appellant’s Pa.R.A.P. 1925(b) Statement at 2. Appellant failed to identify his

contention that the lower court failed to consider his rehabilitative needs.

This deprived the court of an opportunity to address this issue. Accordingly,

we deem it waived. Castillo, 888 A.2d at 780.5

       Appellant’s remaining claim, that the lower court failed to put

legitimate reasons on the record to support its deviation from the sentencing

guidelines, establishes a substantial question. Commonwealth v. Rodda,

723 A.2d 212, 214 (Pa. Super. 1999) (en banc); Commonwealth v. Hoch,

936 A.2d 515, 519 (Pa. Super. 2007); Commonwealth v. Hanson, 856




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5
  Absent waiver, we note that Appellant frames his contention as a failure to
consider his rehabilitative needs, citing 42 Pa.C.S. § 9721(b) (requiring the
sentencing court to balance “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”). However, upon
closer inspection, it is apparent that Appellant actually contends that the
court failed to credit certain mitigating facts of record. See Appellant’s Brief
at 10-11 (suggesting the court discounted testimony from Appellant’s pastor
introduced as mitigating evidence). This Court has previously determined
that such claims do not establish a substantial question. Commonwealth
v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc).




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A.2d 1254, 1257 (Pa. Super. 2004).6                Because Appellant has raised a

substantial question, we may proceed to review the merits of his claim.

       Appellant contends that his sentence is manifestly excessive and

unreasonable, citing 42 Pa.C.S. § 9781. According to Appellant, the lower

court failed to reference legitimate reasons for its departure from the

sentencing guidelines, instead inferring from the facts adduced at trial that

Appellant intended to kill Mr. Bravo, Ms. Rodriguez, and their two children in

order to rob him and settle a business dispute. Thus, Appellant concludes

that the court punished him for crimes he did not commit.

       It is well settled that we review a sentence imposed for an abuse of

discretion.     Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011)

(quoting Commonwealth v. Walls, 926 A.2d 956, 961 (Pa. 2007)).

Generally, an 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.” Id. (internal quotation marks

omitted); see also Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.

Super. 2015) (en banc).          However, where a sentencing court imposes a

sentence outside the sentencing guidelines, our General Assembly has


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6
 The Commonwealth concedes this point. See Commonwealth’s Brief at 10
(merely addressing the merits of Appellant’s claim).



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directed that we vacate the sentence and remand, if “the sentence is

unreasonable.” 42 Pa.C.S. § 9781(c)(3).

      Our   Supreme      Court has noted that “what makes        a sentence

‘unreasonable’ is not defined.” Walls, 926 A.2d at 963. Our evaluation is

informed by factors set forth in Section 9781(d), including:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d); see also Walls, 926 A.2d at 963 (“Indeed, based

upon the very factors set out in Section 9781(d), it is clear that the General

Assembly intended the concept of unreasonableness to be inherently a

circumstance-dependent concept that is flexible in understanding and lacking

precise definition.”).

      This Court has observed that “[a] sentencing court may consider any

legal factor in determining that a sentence in the aggravated range should

be imposed.”     Commonwealth v. Stewart, 867 A.2d 589, 592-93 (Pa.

Super. 2005) (emphasis added) (citing Commonwealth v. Duffy, 491 A.2d

230, 233 (Pa. Super. 1985)). However, we have also cautioned that notions

of fundamental fairness suggest that a defendant should not be sentenced

for crimes he did not commit, for which he was not convicted, or, in the case


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of a plea bargain, for crimes nolle prossed.       Id. (citing United States v.

Metz, 470 F.2d 1140, 1143 (3d Cir. 1972), cert. denied, 411 U.S. 919

(1973)).     Certainly, this principle is no less important where a sentencing

court imposes a sentence beyond the aggravated range.

       With these standards in mind, the lower court’s explanation for its

sentence exhibits an abuse of its discretion.         In our view, it was not

appropriate for the court to sentence Appellant based upon its belief that

Appellant intended to kill or “take out” not only the victim, but also the

victim’s wife and children.       The facts of record do not support the court’s

inference.

       Of course, this case is quite different from others we have reviewed, in

which a sentencing court has appreciated the nature and circumstances

surrounding a criminal act.         For example, in Caldwell, a case involving

aggravated assault and robbery, we affirmed an aggravated range sentence

where the sentencing court noted the defendant’s lack of concern for

innocent bystanders. See Caldwell, 117 A.3d at 771 (“But for the grace of

God that no one was killed.”).7 In Commonwealth v. Miller, 965 A.2d 276

(Pa. Super. 2009), we affirmed a standard range sentence for third degree

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7
   The aggravated range sentence in Caldwell required a slightly different
determination. Id. at 775 (Wecht, J., concurring) (noting that “[a] trial
court abuses its discretion when it orders an aggregate sentence that is
‘clearly unreasonable’ within the meaning of 42 Pa.C.S. § 9781(c)”) (quoting
Commonwealth v. Coulverson, 34 A.3d 135, 139 (Pa. Super. 2011)).



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murder where the sentencing court referenced a fire caused by the

defendant. Id. at 280.8

       Here the lower court imposed a sentence outside the sentencing

guidelines based upon facts not of record, asserting crimes for which

Appellant was neither charged nor convicted.       Accordingly, the sentence

imposed was not reasonable.

       Sentence vacated. Case remanded for resentencing. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2015




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8
  In Miller, the defendant was originally charged with arson; however, the
charge was nolle prossed pursuant to the defendant’s plea agreement. We
concluded that “the court’s mere reference” to the fire did not indicate “that
the court specifically considered the charge of arson and enhanced [the
appellant’s] sentence based thereon.” Id. By contrast, here, the lower
court enhanced Appellant’s sentence expressly based upon crimes for which
he was not charged or convicted.



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