Com. v. Berrios, I. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ISRAEL ZEBULUN BERRIOS :
:
Appellant : No. 1532 EDA 2022
Appeal from the Judgment of Sentence Entered December 20, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000038-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 24, 2023
Appellant, Israel Zebulun Berrios, appeals from the December 20, 2021
judgment of sentence entered in the Monroe County Court of Common Pleas
following his guilty plea to Second-Degree Murder. Appellant challenges the
discretionary aspects of his sentence. After careful review, we affirm.
The relevant facts and procedural history are as follows. On December
11, 2017, then-17-year-old Appellant and two accomplices, Salvador Roberts
and Carolina Carmona,1 agreed to rob a Domino’s Pizza deliveryman. During
the commission of the robbery, Appellant shot and killed the victim. The next
day, during an interview by Pennsylvania State Police detectives, Appellant
admitted to these crimes. The Commonwealth subsequently charged
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1Carmona was Appellant’s then-girlfriend and Roberts is Carmona’s brother.
Both Carmona and Roberts were adults at the time of this crime.
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Appellant with numerous crimes, including Murder and Robbery, arising from
this event.
While Appellant was in jail pending disposition of these charges, the
Commonwealth also charged Appellant with five additional felonies (the “Prior
Felonies”), all of which Appellant committed over a period of three months
immediately prior to the crimes charged at the instant docket number.2
On October 8, 2021, Appellant pleaded guilty to Second-Degree Murder.
Appellant also pleaded guilty to the Prior Felonies.3 The court deferred
sentencing pending preparation of a pre-sentence investigation (“PSI”) report.
On December 20, 2021, the trial court held a joint hearing to sentence
Appellant, Roberts, and Carmona. With respect to Appellant, the trial court
meticulously explained the factors it considered in determining his sentence,
including Appellant’s “youth and age,”4 Appellant’s guilty plea, the facts of this
crime, his extensive prior criminal history and the record and files pertaining
to that history, and the PSI report. N.T. Sentencing Hr’g, 12/20/21, at 74-
84. The court emphasized that it considered the expert reports prepared for
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2 These crimes included three robberies, an aggravated assault committed
with Carmona, and a burglary committed with Roberts. Appellant committed
the Prior Felonies and the instant robbery-homicide shortly after he was
released from a secure state-run juvenile facility in which he had been placed
after admitting to an unrelated robbery.
3 The court sentenced Appellant to an aggregate term of 10½ to 22 years of
incarceration for the Prior Felony convictions.
4 With respect to “youth and age” considerations, the trial court made specific
reference to 18 Pa.C.S. § 1102.1 and relevant case law pertaining to
sentences for murders committed by offenders under the age of 18.
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the Commonwealth and Appellant,5 which the court summarized as indicating
that Appellant “had some hard knocks early on in life” and “had some issues
that really did need and still do need to be addressed.” Id. at 85-86. The
court noted, however, that prior “attempts at rehabilitation through
delinquency and other school and home were unsuccessful.” Id. at 91. The
court further considered, on the record, the impact of the offense on the victim
and his family, the impact on the community, the threat posed by Appellant
to public safety, the degree of Appellant’s culpability, Appellant’s “age-related
characteristics,”6 the level of planning involved in this crime, and that the
murder was unnecessary to effectuate the robbery. Id. at 87-92.
Thus, after considering the PSI report, counsels’ arguments, and
testimony from Appellant, his grandmother, and numerous members of the
victim’s family, and each of the factors listed above, the court sentenced
Appellant to a term of incarceration of 50 years to life7 to run consecutively to
the sentences imposed for his convictions of the Prior Felonies.8
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5 Reports prepared by experts for the Commonwealth and Appellant were
appended to the PSI report. Appellant retained an expert to explore the
possibility of requesting that the court decertify this case to juvenile court and
to determine the existence of potential mental health and other mitigating
factors for consideration at sentencing, and the report referenced those
mitigating factors.
6The court noted that the age-related factors it considered include Appellant’s
chronological age, maturity, mental capacity.
7 This sentence is within the standard range of the sentencing guidelines.
8 The court imposed a total aggregate sentence of 60½ years to life in prison.
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On December 29, 2021, Appellant filed a post-sentence motion in which
he asserted that the sentencing court erred by ordering his sentences to run
consecutively. He also averred that, in ordering his sentences to run
consecutively, the court imposed an illegal de facto life sentence in violation
of “Miller v. Alabama[, 567 U.S. 460 (2012),] and all subsequent related
cases.”9 Post-Sentence Motion, 12/29/2021, at 1 (unpaginated).
Following extensive supplemental briefing and a hearing, on May 17,
2022, the trial court denied Appellant’s post-sentence motion.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Did the trial court abuse its discretion in sentencing [Appellant]
to a total aggregate of 60.5 years reflecting a lack of
consideration of required factors including Appellant’s youth,
history, and rehabilitative needs and err by not considering
mandatory socio-scientific factors?
2. Considering all the factors discussed, should the sentence in
this case have been run concurrently to the sentence in the
present case in order to allow the juvenile a chance at
rehabilitation within his natural life?
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9 As Appellant acknowledges in his Brief to this Court, recent changes in our
jurisprudence have rendered his legality of sentence claim moot. See
Appellant’s Brief at 4 (where Appellant concedes that “the decisions in
[Commonwealth v.] Felder[, 269 A.3d 1232 (Pa. 2022)] and Jones [v.
Mississippi, 141 S. Ct. 1307 (2021),] have largely rendered these
discussions moot.”) In particular, our Supreme Court explained in Felder that
as long as a juvenile defendant’s “sentence was the product of a discretionary
sentencing system that included consideration of the juvenile’s youth” his de
facto life sentence does not violate the U.S. Constitution. Felder, 269 A.3d
at 1246.
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Appellant’s Brief at 4.
Appellant’s issues challenge the discretionary aspects of his sentence.
An appellant raising such a challenge is not entitled to review as of right;
rather, a challenge in this regard is properly viewed as a petition for allowance
of appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d
17, 18-19 (Pa. 1987); Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265
(Pa. Super. 2014).
In order to obtain this Court’s review, an appellant challenging the
discretionary aspects of his sentence must comply with the following
requirements: (1) file a timely notice of appeal; (2) preserve the issue at
sentencing or in a motion to reconsider and modify sentence; (3) include
within his brief a concise statement of the reasons relied upon for allowance
of appeal as required by Pa.R.A.P. 2119(f); and (4) raise a substantial
question that the sentence is inappropriate under the Sentencing Code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013).
To preserve a challenge to the discretionary aspects of his sentence, an
Appellant must preserve the particular legal theory that he asserts on appeal
either at sentencing or in a post-sentence motion, so that the sentencing court
has “the opportunity to reconsider the imposition of the sentence[.]”
Commonwealth v. Tejada, 107 A.3d 788, 798 (Pa. Super. 2015); see also
Pa.R.Crim.P. 720(B)(1)(a) (requiring that post-sentence motions state claims
for relief “with specificity and particularity”). Thus, an appellant who
challenges the discretionary aspects of his sentence in a post-sentence motion
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may only argue on appeal the specific arguments he included in his post-
sentence motion. See, e.g., Commonwealth v. Rivera, 238 A.3d 482, 499
(Pa. Super. 2020) (finding Appellant waived discretionary aspects of sentence
claim because, “while he filed a post-sentence motion raising a discretionary[]
claim, that claim differ[ed] from the claim he present[ed] on appeal”).
Here, Appellant filed a timely notice of appeal and has included a Rule
2119(f) Statement in his appellate brief. With respect to his first issue—that
the court failed to weigh in Appellant’s favor alleged “mitigating factors”10—
our review reveals that Appellant failed to preserve this issue with specificity
in his post-sentence motion. We, thus, find this issue waived.11
Appellant did, however, preserve his claim that the court abused its
discretion in ordering his sentences to run consecutively. Having found that
Appellant preserved this issue, we consider whether he has raised a
substantial question.
The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. Commonwealth v.
Bishop, 831 A.2d 656, 660 (Pa. Super. 2003). “In order to establish a
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10See Appellant’s Brief at 19-20 (where Appellant acknowledges that the trial
court discussed “the factors necessary under the act” but asserts that the
court failed to recognize that any of the factors were mitigating).
11Even if Appellant had not waived it, we would conclude that this claim does
not raise a substantial question for our review. See Commonwealth v.
Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (“This Court has held on
numerous occasions that a claim of inadequate consideration of mitigating
factors does not raise a substantial question for our review.” (citation
omitted).
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substantial question, the appellant must show actions by the sentencing court
inconsistent with the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.” Id. Generally, a challenge to the
imposition of consecutive sentences does not raise a substantial question.
Commonwealth v. Radecki, 180 A.3d 441, 468-69 (Pa. Super. 2018).
In addition, it is well-settled that “where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code. Commonwealth v. Moury, 992
A.2d 162, 171 (Pa. Super. 2010).
Appellant argues that, in sentencing him to “top-end standard range
sentences consecutive to one another resulting in a minimum aggregate
sentence of 60.5 years[] to life,” the court deprived him of the “opportunity
for rehabilitation, reflection[,] or correction.” Appellant’s Brief at 22.
Appellant asserts that the court should have run his sentences concurrently
“to at least give [Appellant] the opportunity to mature and rehabilitate and
someday be eligible for parole.” Id. Appellant has not, however, informed
this Court how his aggregate sentence, which he concedes is comprised of
individual sentences falling within the standard range of the sentencing
guidelines, is inconsistent with the sentencing code or contrary to the
fundamental norms underlying the sentencing process. Accordingly, this
argument fails to raise a substantial question.
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Because Appellant has failed to present a substantial question, this
Court has no jurisdiction to review Appellant’s challenge to the discretionary
aspects of his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2023
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