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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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