J-S24044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL CASTRO-JIMENEZ
Appellant No. 1771 MDA 2015
Appeal from the Judgment of Sentence August 28, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000411-2015;
CP-36-CR-0005443-2014
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 12, 2016
Appellant, Daniel Castro-Jimenez, appeals from the judgment of
sentence entered in the Lancaster County Court of Common Pleas, following
his open guilty plea to two (2) counts of burglary and one (1) count each of
invasion of privacy, criminal trespass, simple assault, theft by unlawful
taking or disposition, and theft of property lost, mislaid, or delivered by
mistake.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On July 9, 2014, Appellant entered the home of one of the victims (“Victim
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1
18 Pa.C.S.A. §§ 3502(a)(1), 7507.1(a)(1), 3503(a)(1), 2701(a)(1),
3921(a), 3924, respectively.
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1”) without permission. Victim 1 woke up and saw Appellant standing near
her bed. Appellant began to remove his belt and told Victim 1, “I’ve been
waiting for you.” Victim 1 screamed, at which point Appellant punched
Victim 1 in the face and took $69.00 from her purse before fleeing. In a
separate incident involving a different female victim (“Victim 2”), Appellant
found a set of keys that belonged to Victim 2 and used them to enter her
apartment. Approximately three weeks later, on October 29, 2014,
Appellant entered Victim 2’s apartment without permission again and
watched her take a shower. The Commonwealth charged Appellant at
docket No. CP-36-CR-0000411-2015 with burglary, simple assault, and theft
by unlawful taking in connection with the incident on July 9, 2014, involving
Victim 1. At docket No. CP-36-CR-0005443-2014, the Commonwealth
charged Appellant with burglary, criminal trespass, invasion of privacy, and
theft of property lost, mislaid, or delivered by mistake, in connection with
the October 29, 2014 incident involving Victim 2.
Appellant pled guilty to all charges on June 16, 2015. The court
sentenced Appellant on August 28, 2015, to consecutive terms of three (3)
to ten (10) years’ incarceration for each of the two burglary counts, one (1)
to (2) years’ incarceration for theft of property lost, mislaid, or delivered by
mistake, and one (1) to two (2) years’ incarceration for simple assault. The
court merged the remaining charges for sentencing. Thus, Appellant
received an aggregate sentence of eight (8) to twenty-four (24) years’
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incarceration. Appellant filed a timely post-sentence motion on September
8, 2015 (the day after Labor Day). The court denied the post-sentence
motion on September 10, 2015. Appellant filed a timely notice of appeal on
October 9, 2015. The court ordered Appellant to file a concise statement of
errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely
complied.
Appellant raises the following issues for our review:
WAS THE SENTENCE IMPOSED FOR COUNT ONE ON
DOCKET 5443-2014, BURGLARY, AND COUNT ONE ON
DOCKET 411-2015, BURGLARY, SO MANIFESTLY
EXCESSIVE AS TO CONSTITUTE TOO SEVERE A
PUNISHMENT WHERE THE [COURT] SENTENCED IN THE
AGGRAVATED RANGE OF THE SENTENCING GUIDELINES
BASED ON THE INADEQUATE REASONING THAT THE
SENTENCING GUIDELINES CONTEMPLATE A BURGLARY
WHERE THE INTENDED CRIME IS THEFT, AS OPPOSED TO
THE CRIMES PLEADED TO IN THE INSTANT CASE?
WAS THE SENTENCE IMPOSED FOR COUNT FOUR ON
DOCKET 5443-2014, THEFT OF PROPERTY LOST, SO
MANIFESTLY EXCESSIVE AS TO CONSTITUTE TOO SEVERE
A PUNISHMENT WHEN THE SENTENCING GUIDELINES
RECOMMEND A SENTENCE OF RESTORATIVE SANCTIONS
(RS) AND THE SENTENCE IMPOSED WAS ONE TO TWO
YEARS IN A STATE CORRECTIONAL INSTITUTE BASED ON
THE INADEQUATE REASONING BY THE [COURT] THAT THE
MISLAID PROPERTY WAS USED TO COMMIT A SEPARATE
OFFENSE FOR WHICH…APPELLANT ALSO PLED GUILTY
AND ON WHICH APPELLANT WAS SENTENCED
SEPARATELY?
WAS THE SENTENCE IMPOSED FOR COUNT THREE ON
DOCKET 411-2015, SIMPLE ASSAULT, ILLEGAL, AS THIS
CHARGE SHOULD HAVE MERGED WITH COUNT ONE,
BURGLARY?
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(Appellant’s Brief at 6-7).
In issues one and two, Appellant argues his sentences for burglary and
theft of property lost were manifestly excessive. Appellant asserts the court
focused exclusively on the seriousness of the offenses, i.e., the sexual
connotations of the offenses, when it imposed sentences in or above the
aggravated range of the sentencing guidelines. Appellant contends the
court’s reasoning was inadequate because the burglary statute and
sentencing guidelines do not contemplate an increased penalty for burglary
if the intended crime is something other than theft. Appellant further claims
no facts of record supported the court’s determination that at the time
Appellant took Victim 2’s keys, he intended to use them to commit a more
serious offense. Appellant emphasizes he has no prior record, has been
continuously employed since 2005, pled guilty to his crimes, and was not
found to be a sexually violent predator. Appellant concludes he is entitled to
resentencing on his convictions for burglary and theft of property lost. As
presented, Appellant challenges the discretionary aspects of his sentence.
See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating
claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing); Commonwealth v. Downing, 990 A.2d 788 (Pa.Super.
2010) (stating claim that court relied on improper factor when imposing
sentence implicates discretionary aspects of sentencing); Commonwealth
v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
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653, 676 A.2d 1195 (1996) (stating claim that sentencing court failed to
consider or did not adequately consider certain factors challenges
discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[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 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
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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 to the fundamental norms which underlie
the sentencing process.” Sierra, supra at 912-13 (quoting
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),
appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a
sentence is manifestly excessive might raise a substantial question if the
appellant’s Rule 2119(f) statement sufficiently articulates the manner in
which the sentence imposed violates a specific provision of the Sentencing
Code or the norms underlying the sentencing process. Mouzon, supra at
435, 812 A.2d at 627. A claim that the court relied on an improper factor
during sentencing raises a substantial question. Downing, supra.
Generally, “[a]n allegation that a sentencing court failed to consider or did
not adequately consider certain factors does not raise a substantial question
that the sentence was inappropriate.” Cruz-Centeno, supra at 545.
“[A] trial court judge has wide discretion in sentencing and can, on the
appropriate record and for the appropriate reasons, consider any legal factor
in imposing a sentence in the aggravated range.” Commonwealth v.
Hardy, 939 A.2d 974, 980 (Pa.Super. 2007). On appeal, this Court will not
disturb the judgment of the sentencing court absent an abuse of discretion.
Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006). “An abuse of
discretion may not be found merely because an appellate court might have
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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.” Commonwealth v. Walls, 592 Pa.
557, 564, 926 A.2d 957, 961 (2007).
Instantly, in his Rule 1925(b) statement, Appellant asserted (1) his
aggregate sentence was manifestly excessive because it was inconsistent
with the protection of the public, the gravity of the offense, and Appellant’s
rehabilitative needs, and (2) the trial court failed to impose an individualized
sentence that took into account Appellant’s personal circumstances.
Appellant failed to raise his claim that when the court imposed sentence, it
improperly relied on a finding that the burglaries and theft of Victim 2’s keys
had sexual connotations. Therefore, that claim is waived. See
Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating
any issued not raised in Rule 1925(b) statement is waived for appellate
review).
Moreover, when imposing sentence, the court was free to consider the
sexual connotations inherent in Appellant’s burglaries. With respect to theft
of property lost conviction, the record supported the court’s determination
that Appellant stole Victim 2’s keys with the intent to enter her home and
commit a more serious crime. The factual basis for Appellant’s guilty plea
established Appellant found the keys and used them to enter Victim 2’s
apartment with the intent to commit a crime. Appellant made no effort to
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return the keys despite knowing they belonged to Victim 2. Instead,
Appellant held onto the keys for three weeks and then used them to enter
Victim 2’s apartment a second time to watch her in the shower. Thus,
Appellant’s claim would merit no relief even if he had properly preserved it.
See Hardy, supra.
Appellant also waived his claim that the court imposed an excessive
sentence by focusing solely on the seriousness of the crimes because
Appellant failed to raise it in his post-sentence motion or at sentencing. See
Evans, supra. Moreover, the court had the benefit of a presentence
investigation (“PSI”) report, so we can assume the court was aware of the
relevant information regarding Appellant’s character and weighed those
considerations along with mitigating factors. See Commonwealth v.
Devers, 519 Pa. 88, 546 A.2d 12 (1988). Further, the court also remarked
at sentencing:
I’ve reviewed the [PSI report] myself, and it’s relatively
vanilla. There’s nothing bad in there. And, you know,
[Appellant has] been working for the last several years.
So, I mean, there are some things for him, nothing that
jumps out one way or the other.
(N.T. Sentencing, 8/28/15, at 3). Thus, the record belies Appellant’s claim
that the court failed to consider factors other than the gravity of the offense.
Had they been properly preserved, Appellant’s discretionary sentencing
challenges would not entitle him to relief.
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In his third issue, Appellant argues he burglarized Victim 1’s residence
with the intent to commit both the theft and the simple assault, so the theft
and simple assault convictions should have merged with burglary for
sentencing. Appellant contends the court improperly noted Appellant might
have had other criminal intentions of a sexual nature when he entered
Victim 1’s home, even though Appellant pled guilty only to burglary, simple
assault, and theft by unlawful taking. Appellant concludes the court properly
merged the theft offense with burglary but erred when it sentenced him
separately on the simple assault conviction. We disagree.
“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730,
70 A.3d 810 (2013) (citing Commonwealth v. Allen, 24 A.3d 1058, 1062
(Pa.Super. 2011)). The burglary statute states in relevant part:
§ 3502. Burglary
(a) Offense defined.—A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
(1) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the
time of the offense any person is present[.]
* * *
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(d) Multiple convictions.—A person may not be
sentenced both for burglary and for the offense which it
was his intent to commit after the burglarious entry or for
an attempt to commit that offense, unless the additional
offense constitutes a felony of the first or second degree.
18 Pa.C.S.A. § 3502. “The Commonwealth is not required to allege or prove
what particular crime a defendant intended to commit after his forcible entry
into the private residence.” Commonwealth v. Lambert, 795 A.2d 1010,
1022 (Pa.Super. 2002) (en banc), appeal denied, 569 Pa. 701, 805 A.2d 521
(2002). “The intent to commit a crime after entry may be inferred from the
circumstances surrounding the incident.” Id.
Instantly, Appellant pled guilty to burglary, theft by unlawful taking,
and simple assault in connection with the incident involving Victim 1. The
theft and simple assault convictions were graded as second-degree
misdemeanors. At the guilty plea hearing, the Commonwealth set forth the
factual basis for the plea, which stated that Appellant unlawfully entered the
residence of Victim 1, assaulted her by punching her in the face, and took
$69.00 from her purse. The factual basis for the plea was silent regarding
what specific crime(s) Appellant had intended to commit when he entered
Victim 1’s residence. In light of Section 3502(d), the court then had to
determine what Appellant intended to do when he entered the residence.
At sentencing, the Commonwealth placed the facts of the incident in
broader context, explaining that Victim 1 awoke to find Appellant standing
near her bed; Appellant told Victim 1 he had been waiting for her and
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started to take off his belt. Appellant lodged no objection to the
Commonwealth’s recitation of facts, which amplified rather than contradicted
anything established during Appellant’s plea. Further, these facts were
consistent with the affidavit of probable cause supporting the criminal
complaint. The affidavit stated Victim 1 screamed after Appellant said, “I’ve
been waiting for you” and began to remove his belt, at which point Appellant
suddenly punched Victim 1 in the face repeatedly and fled with her money.
The court sentenced Appellant separately on the simple assault count,
finding that Appellant had not formed the intent to punch Victim 1 in the
face, when he first entered Victim 1’s residence. Appellant’s initial words
and actions reasonably suggested his intent to commit a different offense.
The simple assault (face punching) occurred suddenly as a result of Victim
1’s scream. The record supports this determination.
Moreover, the court did merge Appellant’s convictions for burglary and
theft by unlawful taking, concluding Appellant most likely intended to
commit the theft offense when he entered Victim 1’s home. The record
supports this determination as well. Nevertheless, the court was not
compelled to find Appellant also intended to commit the simple assault at
the time of entry. Based on the foregoing, Appellant’s sentence for simple
assault was lawful. See 18 Pa.C.S.A. § 3502(d); Lambert, supra.
Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2016
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