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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALFREDO LOPEZ :
:
Appellant : No. 2326 EDA 2019
Appeal from the Judgment of Sentence Entered June 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001806-2018
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 29, 2021
Appellant, Alfredo Lopez, appeals from the judgment of sentence
entered on June 28, 2019, in the Philadelphia County Court of Common Pleas.
After careful review, we affirm in part and vacate in part.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court
summarized the relevant facts in this case as follows:
On November 1, 2017, Appellant smashed Edwardo Perez
Melendez, the victim herein, in the head with a bat at a Speedway
Gas Station located on the 500 block of West Lehigh Avenue in
Philadelphia. The blow rendered the victim unconscious and in a
coma. The victim remained comatose on the date of the trial.
Video equipment at the gas station recorded the incident. It
showed the victim initially standing and then on the ground, while
Appellant was holding a bat. The video recording led to Appellant’s
arrest and pre-trial incarceration. While incarcerated, telephone
recording equipment recorded [Appellant] making references to
the incident and admitting that he struck the victim with a bat.
Trial Court Opinion, 12/23/19, at 2.
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On January 23, 2019, following a waiver trial, this [c]ourt
convicted Appellant of Aggravated Assault, 18 Pa.C.S.
§ 2702[(a)(1)], graded as a felony of the first degree, Recklessly
Endangering Another Person, 18 Pa.C.S. § 2705 graded as
misdemeanor of the second degree, Simple Assault, 18 Pa.C.S.
§ 2701[(a)(1)], graded as a misdemeanor of the second degree,
and Possessing an Instrument of Crime, Generally, 18 Pa.C.S.
§ 907[(a)], graded as a misdemeanor of the first degree. On June
28, 2019, this Court imposed a sentence of ten to twenty years’
incarceration on the Aggravated Assault conviction, along with a
concurrent aggregate sentence of five years’ probation.[1]
Following the imposition of sentence, Appellant filed a Post-
Sentence Motion, which this [c]ourt denied on July 11, 2019.
Appellant thereafter timely filed a pro se notice of appeal from the
judgment of sentence and a court-ordered 1925(b) statement.[2]
Trial Court Opinion, 12/23/19, at 1-2.
On appeal, Appellant presents two issues for our consideration:
[1.] Is the sentence imposed unduly harsh and excessive under
the circumstances of this case?
[2.] Is the sentence imposed for the charge of simple assault
illegal as that count is required to merge with the crime of
aggravated assault for which a sentence was also imposed upon
[Appellant] in this case?
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1 The record reflects that the trial court sentenced Appellant to a term of ten
to twenty years of incarceration for aggravated assault, two years of probation
for recklessly endangering another person, two years of probation for simple
assault, and five years of probation for possessing an instrument of crime.
N.T., 6/28/19, at 17. The trial court ordered Appellant to serve all four
sentences concurrently. Id.
2 On August 14, 2019, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal within twenty-one days.
On September 3, 2019, Appellant filed a “preliminary” Rule 1925(b) statement
and a motion for an extension of time within which to file a final Rule 1925(b)
statement. On September 4, 2019, the trial court granted Appellant a thirty-
day extension, and on October 2, 2019, Appellant timely filed his Rule 1925(b)
statement.
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Appellant’s Brief at 5.
Appellant’s first issue presents a challenge to the discretionary aspects
of his sentence. “The right to appellate review of the discretionary aspects of
a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
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.
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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Here, the first three requirements of the four-part test are met:
Appellant filed a timely appeal; Appellant preserved the sentencing issue in a
post-sentence motion; and Appellant included a statement raising this issue
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in his brief pursuant to Rule 2119(f). Moury, 992 A.2d at 170. Therefore,
we determine whether Appellant raised a substantial question.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted
only when the appellate court determines that there is a substantial question
that the sentence is not appropriate under the Sentencing Code.3
Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A
substantial question exists where an appellant sets forth a plausible argument
that the sentence violates a particular provision of the Sentencing Code or is
contrary to the fundamental norms underlying the sentencing process. Id.
In his Pa.R.A.P. 2119(f) statement, Appellant challenges only the
sentence imposed for his conviction of aggravated assault. Appellant’s Brief
at 21. Appellant asserts that the trial court abused its discretion when it
imposed a sentence in the aggravated range of the Sentencing Guidelines and
failed to consider certain mitigating factors, resulting in an excessive
sentence. Id. at 25. We conclude that Appellant raised a substantial question.
See Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (finding
a substantial question where the appellant averred that the trial court failed
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3 42 Pa.C.S. § 9701, et seq.
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to consider certain sentencing factors in conjunction with an assertion that the
sentence imposed was excessive).
Sentencing is a matter vested in the sound discretion of the trial court,
and a sentence will not be disturbed on appeal absent a manifest abuse of
that discretion. Commonwealth v. Kitchen, 162 A.3d 1140, 1146 (Pa.
Super. 2017). It is well settled that when the trial court has the benefit of a
presentence investigation (“PSI”) report, it is presumed that the court was
both aware of and appropriately weighed all relevant information contained
therein. Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002).
Moreover, when a sentence is within the standard range of the Sentencing
Guidelines, the appellant must demonstrate that the “application of the
guidelines was clearly unreasonable” pursuant to 42 Pa.C.S. § 9781(c)(2).
Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa. Super. 2009).
Our Supreme Court in Commonwealth v. Walls, 592 Pa.
557, 568-9, 926 A.2d 957, 964 (2007) determined that a sentence
can be deemed unreasonable after a review of the trial court’s
application of the factors contained in 42 Pa.C.S.A. §§ 9721(b)
and 9781(d). Section 9721(b) states:
The court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with
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 as
well as any guidelines for sentencing.
42 Pa.C.S.A. § 9721(b). Section 9781(d) provides that when we
review the record, we must have regard for:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the
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opportunity of the sentencing court to observe the
defendant, including any presentence investigation; (3) the
findings upon which the sentence was based; [and] (4) the
guidelines promulgated by the sentencing commission.
42 Pa.C.S.A. § 9781(d).
Ventura, 975 A.2d at 1134-1135.
The trial court addressed Appellant’s challenge to the discretionary
aspects of his sentence as follows:
First, the sentence imposed was a standard range sentence.
Appellant had a Prior Record Score of RFEL. Aggravated Assault
carries an Offense Gravity Score of eleven. The Deadly Weapon
Used sentencing matrix applied here, provides for a standard
range sentence of 102 to 120 months, plus/minus 12 months,
incarceration. (N.T. 6/28/19, 4). Therefore, the sentence of
incarceration of ten to twenty years imposed was not an
aggravated range sentence.
Under the law, when a sentence is within the standard
guideline ranges, it must be determined whether the sentence is
“clearly unreasonable.” 42 Pa. C.S.A. § 9781(c)(2).
Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa. Super.
2008). The reasonableness inquiry is based in part on the factors
set forth in 42 Pa. C.S.A. § 9781(d). Under that statute, the
reviewing court must consider the nature and circumstances of
the offense and the history and characteristics of the defendant;
the opportunity of the sentencing court to observe the defendant,
including any pre-sentence investigation; the findings upon which
the sentence was based; and the guidelines promulgated by the
commission. Id.; Dodge, supra. In addition, a sentence may be
unreasonable if the sentencing court fails to consider the factors
set forth in 42 Pa. C.S.A. § 9721(b): i.e., the protection of the
public; the gravity of the offense in relation to the impact on the
victim and the community; and the rehabilitative needs of the
defendant. [Commonwealth v. ]Walls, [926 A.2d 957, 962 (Pa.
2007)].
Under these standards, the sentence of incarceration
imposed on the Aggravated Assault charge was not unreasonable
and did not constitute an abuse of discretion. All of the factors
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above were considered by the [c]ourt, along with the applicable
law. This [c]ourt carefully considered the information in the pre-
sentence report, along with the mitigating factors presented by
Appellant during the sentencing hearing and thus, was well aware
of Appellant’s personal history. …
This [c]ourt also considered Appellant’s criminal history,
Appellant’s rehabilitative needs and the effect the crime herein
had on the community. The facts of the instant matter showed
that Appellant consciously committed a vicious crime that left the
victim in what appears to be a permanent coma. Moreover, during
the sentencing hearing, the prosecution presented evidence
indicating that Appellant made comments while incarcerated and
awaiting trial telling the person [to whom] he was speaking to get
the “snitch.” (N.T. 6/28/19, 14).
The facts of the instant case, when viewed in conjunction
with Appellant’s prior criminal record and previous incarceration,
showed that he is not amenable to rehabilitation. Appellant
represents a threat to law-biding citizens. Appellant’s prior
criminal record is abominable, consisting of twenty-six arrests and
fifteen convictions at the time of sentencing. Appellant had been
either incarcerated or under the court supervision continuously
from 1993 to the present, except for a two-month period. (N.T.
6/28/19, 12-13). While incarcerated, Appellant had numerous
misconduct charges lodged against him. Id.
Appellant’s actions in the instant matter and in his past show
a pattern of complete disregard for the law, civilized society and
the citizens of Philadelphia. It is imperative for the safety of the
community that he receive a lengthy sentence. Although the
Appellant has a history of mental health problems and drug abuse,
Appellant was lucid enough to remember the details of the crime
and express disdain for the “snitch.” While this Court understands
that mental illness and drug abuse often lead to criminal behavior,
in this case the defense presented no evidence that the incident
resulted from those maladies. Even if they did, Appellant’s
criminal history and disregard for the well-being of the residents
of the community weighed against imposing a lesser sentence.
Finally, as noted above, the sentence imposed did not
constitute an abuse of discretion. The sentences imposed reflected
a consideration of all relevant factors and applicable law. See
Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 2002) (where a
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judge who makes a discretionary sentencing decision has been
fully informed of pertinent facts, his discretion should not be
disturbed). Thus, it is suggested that relief be denied with respect
to this claim.
Trial Court Opinion, 12/23/19, at 2-5.
We agree with the trial court’s rationale and conclusion. The minimum
standard-range sentence applicable to Appellant for his aggravated assault
conviction was between 102 to 120 months, plus or minus twelve months.
204 Pa. Code. § 303.17(b). Thus, Appellant’s sentence of ten to twenty years
of incarceration for aggravated assault was a standard-range sentence. Id.;
see also Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004)
(stating that the Sentencing Guidelines provide for minimum and not
maximum sentences). Moreover, the trial court was apprised of the
Sentencing Guidelines and the maximum sentences available, stated that it
had reviewed and considered the PSI report, noted Appellant’s mental health
issues and struggles with alcohol and drugs, considered the injuries to the
victim, relayed its duty to protect the community, and concluded that
Appellant was incapable of rehabilitation. N.T., 6/28/19, at 16-17. The trial
court was aware of the appropriate sentencing factors and relevant mitigating
evidence via its consideration of the PSI report. Griffin, 804 A.2d at 8. After
review, we discern no abuse of discretion in the standard-range sentence
imposed on Appellant’s conviction for aggravated assault. Accordingly, we
conclude that Appellant is due no relief on his first issue.
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In his second issue, Appellant contends that simple assault and
aggravated assault should have merged for purposes of sentencing.
Appellant’s Brief at 31. The record reflects that Appellant did not raise this
issue in his Pa.R.A.P. 1925(b) statement. Generally, any issue not raised in a
Pa.R.A.P. 1925(b) statement is deemed waived for purposes of appellate
review. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005);
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Appellant
recognizes that he failed to present the merger issue in his Pa.R.A.P. 1925(b)
statement; however, Appellant asserts that this issue should not be deemed
waived on appeal. Appellant’s Brief at 32. We agree. See Commonwealth
v. Pettersen, 49 A.3d 903, 911 (Pa. Super. 2012) (holding that “merger is a
nonwaivable challenge to the legality of the sentence.”). Accordingly, we
proceed with our discussion of Appellant’s challenge to the legality of his
sentence.
When evaluating whether crimes merge for sentencing purposes, our
standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Talley, 236 A.3d 42, 52 (Pa. Super. 2020). The
Sentencing Code provides:
Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
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42 Pa.C.S. § 9765. Thus, Section 9765 “prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single criminal act; and 2) all of
the statutory elements of one of the offenses are included in the statutory
elements of the other.” Talley, 236 A.3d at 52-53 (citation omitted).
The crimes of simple assault and aggravated assault are defined in
pertinent part, as follows:
Simple assault
(a) Offense defined.--Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]
18 Pa.C.S. § 2701(a)(1).
Aggravated assault
(a) Offense defined.--A person is guilty of aggravated assault if
he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life[.]
18 Pa.C.S. § 2702(a)(1).
It is evident from the statutory definitions that the elements of simple
assault are included within the elements of aggravated assault. See
Commonwealth v. Boettcher, 459 A.2d 806, 811 (Pa. Super. 1983)
(holding that the statutory elements of simple assault are included in the
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statutory elements of aggravated assault).4 Moreover, in the instant case,
both simple assault and aggravated assault arose from Appellant’s single act
of intentionally striking the victim in the head with a baseball bat and causing
the victim serious bodily injury.
After review, we conclude that the trial court imposed an illegal sentence
for simple assault because simple assault merged with aggravated assault for
sentencing purposes. Talley, 236 A.3d at 52-53; 42 Pa.C.S. § 9765.
Therefore, although we do not disturb Appellant’s conviction for simple
assault, we vacate the sentence imposed for that conviction. See
Commonwealth v. Tucker, 143 A.3d 955, 958 (Pa. Super. 2016) (affirming
the conviction but holding that the illegal sentence must be vacated).
However, we conclude that we need not remand for re-sentencing because
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4 Although Boettcher remains precedential with respect to the merger of
simple assault and aggravated assault, we are cognizant that Boettcher also
held that recklessly endangering another person, simple assault, and
aggravated assault all merged for sentencing purposes. Boettcher, 459 A.2d
at 811. However, 42 Pa.C.S. § 9765 and subsequent case law now distinguish
recklessly endangering another person from simple assault and aggravated
assault. See Commonwealth v. Cianci, 130 A.3d 780, 783 (Pa. Super.
2015) (stating that merger law has evolved substantially, and 42 Pa.C.S.
§ 9765 now provides an “elements approach” in deciding if crimes merge;
aggravated assault and recklessly endangering another person do not merge
for sentencing purposes as each offense requires proof of an element that is
absent from the other offense, and one offense can be committed without
committing the other offense); see also Commonwealth v. Calhoun, 52
A.3d 281, 287 (Pa. Super. 2012) (finding that simple assault and recklessly
endangering another person did not merge because “the mischiefs to be
remedied” were not identical). Accordingly, we conclude that only simple
assault merges with aggravated assault for sentencing purposes.
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our decision does not upset the trial court’s sentencing scheme, which
consisted of entirely concurrent sentences. See Commonwealth v. Thur,
906 A.2d 552, 570 (Pa. Super. 2006) (holding that where the appellate court
can vacate an illegal sentence without upsetting the trial court’s overall
sentencing scheme, it need not remand for resentencing); see also
Commonwealth v. Klein, 795 A.2d 424, 430-431 (Pa. Super. 2002) (“where
a case requires a correction of sentence, this [C]ourt has the option of either
remanding for resentencing or amending the sentence directly.”).
For the reasons set forth above, Appellant is entitled to no relief on his
challenge to the discretionary aspects of his sentence for aggravated assault.
However, although we do not upset Appellant’s conviction for simple assault,
we vacate Appellant’s sentence for that crime because it merges with
aggravated assault for sentencing purposes. The sentences for aggravated
assault, recklessly endangering another person, and possessing an instrument
of crime remain undisturbed.
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/21
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