J-S60031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                 Appellee                :
                                         :
                   v.                    :
                                         :
JOSE SANTANA,                            :
                                         :
                 Appellant               :    No. 3796 EDA 2015

          Appeal from the Judgment of Sentence October 12, 2015
               in the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0000260-2015

BEFORE:    SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED SEPTEMBER 30, 2016

     Jose Santana (Appellant) appeals from the judgment of sentence

imposed following his conviction for aggravated assault. We affirm.

     On August 17, 2015, Appellant entered a guilty plea to the

aforementioned crime based on his involvement in an altercation with Luis

Rivera Rojas (Rojas) wherein he stabbed Rojas “at least twice, once in the

abdomen and once in the lower back.”1 N.T., 8/17/2015, at 17. On October

12, 2015, he was sentenced to a term of 10 to 20 years of incarceration.




1
  “[W]hen … Rojas was stabbed the blade went in through the abdominal
cavity, cutting the renal vein, and the blade then went into the spinal cord
and broke” from the handle of the knife. N.T., 8/17/2015, at 18. It appears
that both men were romantically involved with the same woman and that
the altercation occurred outside of her residence. N.T., 10/12/2015, at 5-6.


*Retired Senior Judge assigned to the Superior Court.
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Following the denial of his post-sentence motion,2 Appellant filed his notice

of appeal to this Court. The trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and one was filed. The trial court issued an opinion pursuant to Pa.R.A.P.

1925(a) on January 19, 2016.

      Appellant presents one issue on appeal, wherein he alleges that the

trial court abused its discretion at sentencing by failing to consider all

necessary sentencing factors, including mitigating factors, and failing “to set

forth appropriate reasons for its radical deviation from the standard

sentencing    ranges”   in   imposing    the   statutory   maximum   sentence.

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. 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.


2
  Appellant filed pro se a motion to withdraw his plea and “for ineffective
councel [sic]” on October 19, 2015. On October 22, 2015, Appellant’s
counsel filed supplemental post-sentence motions, which incorporated
Appellant’s pro se motion to withdraw his guilty plea and included a motion
to modify sentence. Counsel also filed a petition for leave to withdraw as
counsel the same day. A hearing was held on November 17, 2015, at which
time it was determined that Appellant did not wish to pursue his motion to
withdraw his guilty plea and wanted to proceed with counsel on his motion
to modify his sentence. N.T., 11/17/2015, at 3-5. As a result, the motion to
withdraw his guilty plea and the petition for leave to withdraw as counsel
were withdrawn. Id. at 5-7; Order, 11/17/2015. As indicated above,
Appellant’s post-sentence motion to modify sentence was denied. N.T.,
11/17/2015, at 7; Order, 11/17/2015.

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        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.[] § 9781(b).

     Objections to the discretionary aspects of a sentence are
     generally waived if they are not raised at the sentencing hearing
     or in a motion to modify the sentence imposed.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533

(Pa. Super. 2006)).

     Here, Appellant filed timely post-sentence motions and a notice of

appeal, and included a statement pursuant to Rule 2119(f) in his brief.

However, because the discretionary-aspects claims Appellant presented in

his post-sentence motions are not identical to those which he presents on

appeal, we must determine which, if any, claims are properly preserved for

our review. In so doing, we observe that

     challenges to a court’s sentencing discretion must be raised
     during sentencing or in a post-sentence motion in order for this
     Court to consider granting allowance of appeal. Moreover, for
     any claim that was required to be preserved, this Court cannot
     review a legal theory in support of that claim unless that
     particular legal theory was presented to the trial court. Thus,
     even if an appellant did seek … to attack the discretionary
     aspects of sentencing in the trial court, the appellant cannot
     support those claims in this Court by advancing legal arguments
     different than the ones that were made when the claims were
     preserved.




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Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations

omitted).

       In his post-sentence motion, Appellant challenged the imposition of

the statutory maximum sentence as excessive and manifestly unjust based

on mitigating factors present herein, the circumstances of the case,

Appellant’s personal circumstances, and the trial court’s alleged failure to

take into consideration Appellant’s rehabilitative needs.        Supplemental

Post-Sentence Motions, 10/22/2015, at ¶¶ 9-14. Appellant did not include a

claim based on the trial court’s alleged failure to provide adequate reasons

for the sentence and, therefore, that claim is waived.    Rush, 959 A.2d at

949.

       Moreover, the only discretionary-aspects claim Appellant included in

his Rule 1925(b) statement was that “the sentence imposed was harsh and

manifestly excessive as the court imposed the maximum legal sentence

permitted without justification or proper explanation of the reasons for the

sentence or why the court deviated from the sentencing guidelines by

imposing the sentence that was nearly double the aggravated range.” Rule

1925(b)     Statement,   1/7/2016    (unnecessary    capitalization   omitted).

Because Appellant failed to include any issue with respect to the trial court’s

failure to consider appropriate mitigating or other sentencing factors, those




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claims are also waived.3 See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included

in the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”); Commonwealth v. Schutzues, 54 A.3d

86,   98   (Pa.   Super.   2012)   (holding   defendant   waived   challenge   to

discretionary aspects of sentencing where he failed to preserve claim in Rule

1925(b) statement).

      Notwithstanding our conclusion that Appellant has waived his claims

for failing to preserve them properly, our review of the merits of the claims

reveals that he is not entitled to relief. In so doing, we turn to consideration

of whether Appellant has raised a substantial question worthy of appellate

review.4 The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions


3
   We further note that, though Appellant included in his Rule 1925(b)
statement the claim relating to whether the trial court provided adequate
reasons for its sentence on the record, such action does not rectify his
failure to raise the claim at sentencing or in his post-sentence motion.
Commonwealth v. Tejada, 107 A.3d 788, 790, 799 (Pa. Super. 2015)
(finding specific challenges to discretionary aspects of sentence waived
where raised for the first time in a Rule 1925(b) statement rather than at
sentencing or in a post-sentence motion).
4
  “[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. Provenzano, 50 A.3d 148, 154 (Pa. Super.
2012).



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were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Griffin, 65 A.3d at 935 (citation and internal quotation

marks omitted).

      Appellant’s Rule 2119(f) statement in its entirety is as follows:

             [Appellant] is requesting the review of his sentence based
      upon his belief that the sentencing court abused its discretion
      when it imposed a harsh and excessive sentence contrary to the
      fundamental norms of the sentencing guidelines. The sentence
      imposed was the maximum legally allowable sentence and was
      more than double the standard sentencing range as applied to
      [Appellant]. The deviation from the guideline range must be
      supported by appropriate and factually justifiable reasons and
      [Appellant] does not believe that the court presented such
      justification.

Appellant’s Brief at 11 (unnecessary capitalization omitted).         Appellant’s

claim raises a substantial question. See Commonwealth v. Antidormi, 84

A.3d 736, 759 (Pa. Super. 2014) (“This Court has held that claims that the

sentencing court imposed a sentence outside the standard guidelines without

stating adequate reasons on the record presents a substantial question.”).

Although not included in his 2119(f) statement, Appellant’s issue as it relates

to the court’s alleged failure to consider the necessary sentencing factors,

including   mitigating   factors,   also   raises   a   substantial    question.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“It is

well-established that a sentencing court’s failure to consider mitigating

factors raises a substantial question.”); Commonwealth v. Cartrette, 83



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A.3d 1030, 1042 (Pa. Super. 2013) (concluding that Appellant’s argument

that the sentencing court did not consider the appropriate sentencing factors

raises a substantial question).

      In addressing the merits of Appellant’s claims, we begin with our

well-settled standard of review.

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be disturbed
         on appeal absent a manifest abuse of discretion. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish, by
         reference to the record, that the sentencing court ignored
         or misapplied the law, exercised its judgment for reasons
         of partiality, prejudice, bias or ill will, or arrived at a
         manifestly unreasonable decision.

      In every case in which the court imposes a sentence for a felony
      or a misdemeanor, the court shall make as a part of the record,
      and disclose in open court at the time of sentencing, a statement
      of the reason or reasons for the sentence imposed.            The
      sentencing guidelines are not mandatory, and sentencing courts
      retain broad discretion in sentencing matters, and therefore,
      may sentence defendants outside the [g]uidelines. In every
      case where the court imposes a sentence ... outside the
      guidelines adopted by the Pennsylvania Commission on
      Sentencing ... the court shall provide a contemporaneous written
      statement of the reason or reasons for the deviation from the
      guidelines. However, [t]his requirement is satisfied when the
      judge states his reasons for the sentence on the record and in
      the defendant’s presence. Consequently, all that a trial court
      must do to comply with the above procedural requirements is to
      state adequate reasons for the imposition of sentence on the
      record in open court.

            When imposing sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should
      refer to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation. Where pre-


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     sentence reports exist, we shall ... presume that the sentencing
     judge was aware of relevant information regarding the
     defendant’s character and weighed those considerations along
     with mitigating statutory factors. A pre-sentence report
     constitutes the record and speaks for itself.

Antidormi, 84 A.3d at 760–61 (internal quotation marks and citations

omitted).

     The sentencing court provided the following reasoning for its sentence:

            All right. I’ve taken into account everything that happened
     at the hearings that we’ve had. I’ve taken into account the
     content of the pre-sentence investigation report [(PSI)]. I’ve
     taken into account the guidelines. I would point out among
     those things that this man almost died and has gone through
     terrible recovery since the date of this incident. [Appellant] has
     shown an absolute callousness about the injuries sustained by
     this victim and actually his own actions.

           From what I read here, [Appellant] left the victim
     unconscious after stabbing him. From what I read, I understand
     [Appellant] then fled and had to be picked up, was actually
     arrested I think it was in Manhattan and brought back to
     Pennsylvania. Hardly the actions of a remorseful person. And
     then also on the day of the stabbing, where does he go after the
     stabbing? He goes to the casino to try to win some money.

           This is a dangerous man that’s standing before me that
     almost killed this victim here, and there may have been some
     events done by this woman with her various boyfriends, but
     none of that factors into what ultimately happened here in terms
     of the stabbing.

           This was intentional.        This was cold-blooded as
     demonstrated by [Appellant’s] actions during the stabbing and
     following the stabbing. There are cases where the [c]ourt should
     deviate from the guidelines, and there are cases where the
     maximum punishment is in order. This is a dangerous man. The
     community needs to be protected from him. Accordingly, the
     maximum sentence is imposed.



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N.T, 10/12/2015, at 17-18.

      Upon review, we conclude that the above-stated reasons are adequate

to support the imposition of the statutory-maximum sentence. “The court is

not required to parrot the words of the Sentencing Code, stating every factor

that must be considered under Section 9721(b).... [T]he record as a whole

must reflect due consideration by the court of the statutory considerations.”

Antidormi, 84 A.3d at 761 (internal quotation marks and citation omitted).

Here, the court noted its consideration of “everything that happened at the

hearings [it held],” the PSI, and the guidelines, and it made specific

observations with respect to Appellant’s lack of remorse, the impact on the

victim, the particular circumstances of the crime, and the protection of the

community.    N.T., 10/12/2015, at 17-18.       Moreover, we conclude that

Appellant’s claim that the court failed to consider the necessary sentencing

factors, including mitigating facts, is meritless in light of the fact that the

court had the benefit of a PSI.         See Antidormi, 84 A.3d at 761;

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (“Our

Supreme Court has determined that where the trial court is informed by a

[PSI], it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.”). Based on the foregoing, we discern

no abuse of discretion.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/30/2016




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