Com. v. Acevedo-Solano, P. ( 2023 )

J-S20039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PEDRO LUIS ACEVEDO-SOLANO :
:
Appellant : No. 1793 EDA 2022
Appeal from the Judgment of Sentence Entered April 8, 2022
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001896-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PEDRO LUIS ACEVEDO-SOLANO :
:
Appellant : No. 3170 EDA 2022
Appeal from the Judgment of Sentence Entered April 8, 2022
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001899-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 28, 2023
Pedro Luis Acevedo-Solano appeals from the judgment of sentence
imposed following a negotiated guilty plea that resulted in him pleading guilty,
across a total of three docket numbers, to one count of conspiracy to commit
robbery, one count of illegally possessing a small amount of marijuana, and
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 Retired Senior Judge assigned to the Superior Court.
J-S20039-23
one count of carrying a firearm without a license.1 Prior to sentencing,
negotiations between Acevedo-Solano and Commonwealth yielded an
agreement that the marijuana and firearm sentences would run concurrent
with his conspiracy to commit robbery sentence. The lower court resultantly
sentenced Acevedo-Solano to an eight-to-twenty-year term of incarceration,
which, specifically at the conspiracy offense, was beyond the aggravated
range of Pennsylvania’s relevant sentencing guidelines. On appeal, Acevedo-
Solano challenges the discretionary aspects of this sentence, suggesting that
the lower court abused its discretion in: (1) failing to provide adequate
reasoning for deviating from the sentencing guidelines; and (2) neglecting to
consider mitigating circumstances. After a detailed review of the record, we
conclude that the lower court did not abuse its discretion in sentencing and
therefore affirm.
As cogently summarized by the lower court:
Case No. 1999/2020 stems from a motor vehicle stop on
Rou[t]e 22 in the area of the Airport Road exit, Hanover Township,
Lehigh County on October 17, 2019. [Acevedo-Solano] was
observed operating a white Honda Accord. His brake lights
illuminated and flashed at an irregular interval. Trooper Taylor
Dietrich of the Pennsylvania State Police initiated a traffic stop.
During the stop, Trooper Dietrich noticed a handgun laying on the
floor behind the passenger seat. [Acevedo-Solano] was asked to
exit the vehicle and was interviewed. [Acevedo-Solano] indicated
he was not the registered owner of the gun and he did not have
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1 See 18 Pa.C.S. § 903 (conspiracy), 18 Pa.C.S. § 3701(a)(1)(i); 35 P.S. §
780-113(a)(31)(i); and 18 Pa.C.S. § 6106(a)(2), respectively. Although
Acevedo-Solano was convicted at three docket numbers, only two are the
subject of this appeal, as discussed, infra.
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[a] permit to carry it. He indicated it was not his and that it
belonged to an individual named Ricardo Martin. Police were
unable to locate any record of Ricardo Martin. The firearm was last
identified as having been sold to Franciso Javier Rivera Andujar.
Case No. 1896/2020 involves a homicide which occurred in
the early-morning hours of March 3, 2020. [Acevedo-Solano]
offered a detailed account of the events in this case. On March, 2,
2020, [Acevedo-Solano] was working at Bakerly, a French breads
company, when he received a text inviting him to hang out with
Nikolas Acevedo (“Acevedo”) and Jamett Rivera (“Rivera”).
[Acevedo-Solano] initially declined because he had obligations
with his two-month-old daughter. However, he eventually agreed
to smoke marijuana with them and drive around. He indicated he
would not be able to hang out with them until closer to midnight.
At or about 12:00 a.m. on March 3, 2022, [Acevedo-Solano]
texted Acevedo and Rivera to see where they were. They arrived
shortly thereafter and [Acevedo-Solano] entered their vehicle.
However, it was too small so [Acevedo-Solano] suggested they
get into his vehicle, a red Dodge Durango, in which he was sitting
while waiting for their arrival. [Acevedo-Solano] offered to drive.
His fiancé[e] called and asked him to pick up an online food order
at the Wawa located on 15th Street in Allentown. [Acevedo-
Solano] indicated he did not notice that both Acevedo and Rivera
were armed.
While driving, [Acevedo-Solano] indicated that Acevedo and
Rivera produced and showed him their guns, which made
[Acevedo-Solano] nervous because they were already driving
around at night in a vehicle with tinted windows smoking
marijuana. [Acevedo-Solano] proceeded to the Wawa, picked up
the food order, and drove the food to his fiancé[e].
[Acevedo-Solano] indicated he parked outside his residence
and took the food to his fiancé[e] while Acevedo and Rivera waited
in the Durango. While he did so, he passed Elijaah Rodriguez
([“]Rodriguez[”]) walking westbound on the 1200 block of Turner
Street in Allentown, Lehigh County. [Acevedo-Solano] denied
knowing who Rodriguez was and the two nodded at one another.
After dropping off the food, [Acevedo-Solano] returned to the
vehicle. When he entered, he heard Acevedo and Rivera arguing
with each other and Rivera was making statements about
Rodriguez, threatening to get Rodriguez before Rodriguez could
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get Rivera.
According to [Acevedo-Solano], he tried to dissuade the
others, particularly Rivera, from doing anything, citing the
fact that his young daughter was asleep in his residence.
[Acevedo-Solano] indicated Rivera pumped his shotgun and said,
“We’re doing it.” This made [Acevedo-Solano] fearful.
Rivera directed [Acevedo-Solano] to circle the block, and
[Acevedo-Solano] complied. Acevedo and Rivera exited the
vehicle after they saw Rodriguez. They were armed with a rifle
and a shotgun, respectively. [Acevedo-Solano] remained in the
vehicle. Rivera and Acevedo approached Rodriguez. [Acevedo-
Solano] heard gunshots and immediately thereafter, River[a] and
Acevedo returned to the vehicle. [Rodriguez had been fatally
shot.] Rivera had a handgun, which he indicated he took from
Rodriguez. [Acevedo-Solano] dropped Rivera and Acevedo off at
their respective residences. [Acevedo-Solano] recounted that
Acevedo apologized profusely to [Acevedo-Solano]. [Acevedo-
Solano] did not report the crime to the police.
Case No. 1898/2020 also took place on March 3, 2020.
During the daytime hours of March 3, 2020, [Acevedo-Solano]
was stopped by Officer Michael Hammer of the Allentown Police
Department for dark window tint on a white Honda Accord he was
operating while traveling northbound in the 600 block of Noth 12 th
Street in Allentown, Lehigh County. During the stop, Officer
Hammer smelled a strong odor of fresh marijuana. [Acevedo-
Solano] handed the officer a plastic bag with marijuana residue.
A search of the vehicle and of [Acevedo-Solano] was conducted
and a second bag with a green leafy substance was found in his
pocket. [Acevedo-Solano] was taken into custody for questioning
about the shooting and subsequently charged along with Acevedo
and Rivera following a police investigation.
After [Acevedo-Solano] was stopped and questioned on
March 3, 2020, police arrested Acevedo and Rivera as well.
Acevedo indicated the intent was to rob Rodriguez of his gun, and
that he fired into the air with the intent of scaring Rodriguez.
[Acevedo-Solano] indicated he learned that Acevedo and Rivera
were at Cabela’s earlier in the day on March 2, 2020. They
purchased ammunition from the store. They also were at a bar
where they consumed alcohol prior to meeting up with him.
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Trial Court Opinion, 8/15/22, at 1-4 (unpaginated).
As illuminated, supra, Acevedo-Solano pleaded guilty to conspiracy to
commit robbery, carrying a firearm without a license, and possessing a small
amount of marijuana. Pursuant to Acevedo-Solano’s agreement with the
Commonwealth, the sentences associated with the firearms and marijuana
offenses were to run concurrent with the robbery conspiracy sentence. At
sentencing, for that latter offense, the court imposed a term of incarceration
of eight to twenty years. As to the firearms and marijuana offenses, Acevedo-
Solano received a six-to-twenty-four-month term of incarceration, within the
aggravated guideline range for this offense, and a $100 fine, respectively.
After he was sentenced, Acevedo-Solano filed two motions for
reconsideration, one at the robbery conspiracy sentence and one at the
firearms sentence, which were denied. Resultantly, Acevedo-Solano filed a
timely notice of appeal,2 and the relevant parties have complied with their
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2 Despite having been sentenced at three trial court docket numbers, Acevedo-
Solano originally only filed a singular notice of appeal listing those three
numbers. Moreover, Acevedo-Solano did not file a post-sentence motion at
the docket number involving his marijuana conviction. Pursuant to
Pennsylvania Rule of Appellate Procedure 341(a) and Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018) (requiring separate notices of appeal when
a single order resolves issues at more than one docket number), this Court
issued a rule to show cause, which directed Acevedo-Solano to demonstrate
why the present appeal should not be quashed. Our order also required
Acevedo-Solano to show why his appeal from the marijuana docket number
should not be quashed given that, in the absence of a post-sentence motion,
his appeal with respect to that offense, filed more than thirty days after the
sentence’s imposition, was untimely. See Pa.R.Crim.P. 720(A)(3). Ultimately,
(Footnote Continued Next Page)
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respective obligations under Pennsylvania Rule of Appellate Procedure 1925.
As such, this matter is ripe for review.
On appeal, Acevedo-Solano presents two related issues:
1. Did the court abuse its discretion in failing to provide any
reasons for its sentence, which exceeded the aggravated range
of the sentencing guidelines?
2. Did the court abuse its discretion when it failed to consider any
of the mitigating circumstances presented at the time of
sentencing?
See Appellant’s Brief, at 8.
As with all discretionary aspects of sentencing claims, we utilize a well-
settled set of precepts:
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.
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test to
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Acevedo-Solano conceded that an appeal from the marijuana docket number
was untimely, which resulted in our partial quashal of his appeal. However, in
accordance with Commonwealth v. Young, 265 A.3d 462 (Pa. 2021), and
its progeny, Commonwealth v. Young, 208 A.3d 1049 (Pa. Super. 2022),
we allowed for Acevedo-Solano to perfect the appeal by filing two amended
notices of appeal for his appeals at the robbery conspiracy and firearms
sentences, with each notice listing only one trial court docket number.
Acevedo-Solano complied with our instructions, and as such, this now
consolidated appeal is properly before this Court.
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invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the issue
was properly preserved at sentencing or in a motion to reconsider
and modify sentence; (3) whether appellant’s brief has a fatal
defect[, see 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.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted) (indentations altered).
A “substantial question” is one that sets “forth a plausible argument that
the sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (citations omitted); see also 42
Pa.C.S. § 9721(b) (mandating that a sentence of confinement must be
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[ ]”). If the four-part test is satisfied,
then we review an appellant’s substantive claim, which requires inquiry into
whether the lower court, at any point, abused its discretion in sentencing. See
Commonwealth v. Akhmedov, 216 A.3d 307, 328-29 (Pa. Super. 2019) (en
banc).
Acevedo-Solano filed a timely notice of appeal, properly preserved his
contentions via post-sentence motion, and included a Rule 2119(f) statement
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in his brief. Accordingly, we are tasked with evaluating whether he has raised
a substantial question.
Distilled down, Acevedo-Solano argues that he has presented at least
one substantial question because: (1) the lower court failed to state its
reasons for deviating from the sentencing guidelines and imposing a sentence
above the aggravated range; and (2) the lower court neglected to consider
mitigating factors. See Appellant’s Brief, at 19-21. As “[t]his court has found
that a claim that the trial court failed to state its reasons for deviating from
the guidelines presents a substantial question for review,” Commonwealth
v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009), Acevedo-Solano has
therefore presented a substantial question. Moreover, although implicit in his
argument, Acevedo-Solano’s Rule 2119(f) statement suggests that his
sentence is excessive given the court’s lack of consideration into mitigating
factors associated with him as a person and in the context of the facts
underpinning his robbery conspiracy conviction. This argument, too, raises a
substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa. Super. 2015) (“This Court has held that an excessive sentence claim–in
conjunction with an assertion that the court failed to consider mitigating
factors–raises a substantial question.”); see also Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (“[A] claim that the court
erred by imposing an aggravated range sentence without consideration of
mitigating circumstances raises a substantial question.”).
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Acevedo-Solano believes that “the sentencing court failed to provide any
reasons for deviating beyond the aggravated range sentence as it pertains to
his [c]onspiracy conviction.” Appellant’s Brief, at 25. Acevedo-Solano also
baldly attacks his aggravated-range sentence for the firearms offense.
Preliminarily, we emphasize that because the lower court judge, here,
had the benefit of a presentence investigation report, “it will be presumed that
he or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004).
As to sentencing above the guidelines:
The court may deviate from the recommended guidelines; they
are merely one factor among many that the court mut consider in
imposing a sentence. A court may depart from the guidelines if
necessary, to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the impact
on the life of the victim and the community. When a court chooses
to depart from the guidelines, however, it must demonstrate on
the record, as a proper starting point, its awareness of the
sentencing guidelines. Further, the court must provide a
contemporaneous written statement of the reasons for the
deviation from the guidelines.
The requirement that the court provide a contemporaneous
written statement is satisfied when the judge states his reasons
for the sentence on the record and in the defendant’s presence.
Commonwealth v. Durazo, 210 A.3d 316, 320-21 (Pa. Super. 2019)
(citations and internal quotation marks omitted) (cleaned up). This Court
“shall” vacate sentences that are “outside the sentencing guidelines … and
unreasonable.” 42 Pa.C.S. § 9781(c)(3); see also 42 Pa.C.S. § 9781(c)(1)-
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(2) (requiring this Court to vacate sentences within the sentencing guidelines
if the lower court “applied the guidelines erroneously” or if “the application of
the guidelines [is] clearly unreasonable[]”).
In fully evaluating his brief, Acevedo-Solano’s argument morphs from
averring that the lower court provided no reasons for deviating from the
guidelines to claiming that the court predicated its sentence “solely on the
seriousness of the offense without considering all relevant factors[.]”
Appellant’s Brief, at 30. Relatedly, notwithstanding the fact that he was
originally charged with criminal homicide, see id., at 9 (“[Acevedo-Solano]
was charged with [c]riminal [h]omicide[.]”), Acevedo-Solano contends that a
court may not sentence “on the basis of offense[s] or conduct not charged or
pled.” Id., at 30.
Acevedo-Solano also believes, as his ancillary assertion,3 that the court
failed to consider his age, remorse, cooperation with prosecution, and his lack
of prior record. See id., at 32. Instead, it “relied solely on the seriousness of
the offenses and discredited the mitigating factors[.]” Id.
At sentencing, the court fully apprised Acevedo-Solano of the possible
sentence ranges for the crimes in which he pleaded guilty. Specifically, as to
the conspiracy to commit robbery offense, Acevedo-Solano had a prior record
score of zero, but the offense had a gravity score of eleven. Therefore,
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3 Although Acevedo-Solano presented two questions for our review, his brief
is limited to one omnibus argument section.
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“[s]tandard range for the minimum period of incarceration [was] 45 to 63
months. Mitigated is 33 to 45. Aggravated is 63 to 75.” Sentencing Hearing,
4/8/22, at 5. As to the firearms offense, which carried an offense gravity score
of four, the standard range was identified as “probation to 3 months.
Mitigated, nothing below probation. Aggravated 3 to 6 months.” Id., at 6.
Immediately preceding the imposition of its sentence, the court
explained:
The record should reflect I have consulted or thoroughly
reviewed the contents of the pre[]sentence investigation report,
taking into account Mr. Acevedo-Solano’s statement here in court
today as well as his cooperation with the police from the very
beginning of the investigation as well as [the mother of the
victim’s] comments here in court today.
Two things stand out to me, Mr. Acevedo-Solano. First off is
that while you and your lawyer have requested a certain amount
of leniency, in my mind, that’s already been provided by not
having you plead guilty on the homicide charge as an accomplice.
That you aided and abided [sic] the commission of this offense
whether you completely foresaw the ultimate outcome or not.
You drove, you stopped, you let them out. You waited for
them to come back and you didn’t go immediately to the police.
You didn’t go back to the scene where [the victim] lay on the
ground. So in my mind, you have already received significant
consideration by allowing you to plead guilty to the conspiracy to
robbery charge instead of a more serious offense.
Secondly, one of the other cases you pled guilty to back on
January 27th was for the firearms charge as a person who would
otherwise have been entitled to possess a firearm but you did not
legally have the ability to possess. This was from a situation that
occurred in October of 2019, some six months before this offense
occurred. So you appeared not to have been a stranger to being
in contact with firearms albeit those for which you did not legally
have a right to possess them.
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So taking into account all those actions as well as your
behavior relevant to this particular investigation, I will sentence
you as follows …
Sentencing Hearing, 4/8/22, at 19-21.
After announcing its sentences, the court stated:
[The court] note[s] for the record the sentence for the
conspiracy to [commit] robbery charge is beyond the aggravated
range. It is one-half of what the other co-defendant, Mr. Acevedo,
received as is an accurate reflection in my view as to the
appropriateness of the sentence for the behavior which resulted
on the night which led to the death of [the victim]. The firearms
charge is at the top of the aggravated range.
* * *
It’s a combined sentence of 8 to 20 years. Eight years on
the conspiracy to robbery charge. As [the court] said, that is
beyond the aggravated range. It is one-half of what [Acevedo-
Solano’s] co-defendant, … Mr. Acevedo received and a little less
than that of what Mr. Rivera received. The firearms charge is at
the top of the aggravated range and runs concurrent, 6 to 24
months so [Acevedo-Solano does not] pick up any additional
period of incarceration or punishment for that.
Id., at 22-24. The corresponding sentencing order reflects the same deviation
from the sentencing guidelines and attendant explanation for that divergence.
See Sentencing Order, 4/8/22 (“This sentence is beyond the aggravated
range due to [Acevedo-Solano’s] actions the night of the incident that resulted
in the death of [the victim].”).
The court, armed with a presentence investigation report, expressly
reflected on all relevant factors associated with Acevedo-Solano and the
discrete circumstances of his criminality, as well as his impact on the victim’s
family and the community more broadly. As made evident in its subsequent
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opinion, the court “took into consideration [Acevedo-Solano’s] relative
cooperativeness with police, and his comparatively limited role in the events
which led to the death of [the victim].” Trial Court Opinion, 8/15/22, at 9
(unpaginated). However, it also found that “[t]he mitigating factors must be
balanced against the fact that [he] was found to be in unlawful possession of
a firearm just over four months prior to the date of [the victim’s] death.” Id.
Moreover, as the driver, Acevedo-Solano became aware of Acevedo and
Rivera’s possession of firearms prior to the shooting death of the victim. See
id. Despite knowing that he was in the presence of firearms, Acevedo-Solano
“continued to associate with them. By [his] own account, when Rivera directed
him to circle the block looking for [the victim], [Acevedo-Solano] complied.”
Id.
After the shooting death of the victim, Acevedo-Solano waited and
dropped off Rivera and Acevedo at their respective residences. See id.
Acevedo-Solano did not call emergency services to assist the victim, nor did
he call police to report the homicide that had just taken place. See id.
The court, after taking all of these factual underpinnings into account,
which it measured alongside the presentence investigation report as well as
statements made by both Acevedo-Solano and the victim’s mother,
determined that, in imposing a sentence for robbery conspiracy outside of the
sentencing guidelines, Acevedo-Solano still clearly received the benefit of his
plea bargain with the Commonwealth “which spared him from the homicide
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charge.” Id. The record reflects that the court expressed these determinations
contemporaneous with its imposition of Acevedo-Solano’s sentences, explicitly
indicating its consideration of mitigating factors. While Acevedo-Solano would,
perhaps, desire a reweighing of the lower court’s considerations, that action
is not within our purview. We afford wide latitude to the lower court’s
sentencing determinations, and when the record reflects adequate
consideration of the relevant factors, such as it does here, we will not disturb
the court’s discretion.
Acevedo-Solano received a term of incarceration that, at its minimum,
will amount to ninety-six months. Based on the sentencing guidelines, the
aggravated range for conspiracy to commit robbery maxed out at seventy-
five months. Juxtaposed against the facts of this case, we perceive no
unreasonableness to this sentence. The lower court adequately considered:
(1) Acevedo-Solano’s specific role in the events that led to the shooting death
of the victim; (2) Acevedo-Solano’s background and his prior record score of
zero; (3) Acevedo-Solano’s willingness to ultimately cooperate with police
officers; (4) Acevedo-Solano’s presentence investigation report; and (5) the
effects that Acevedo-Solano’s actions on the victim, the victim’s family, and
the community at large. Moreover, we highlight that the court was in the
position to be able to observe Acevedo-Solano. See 42 Pa.C.S. § 9781(d)(2).
In total, then, the court adequately made its findings part of the record and
presented a reasonable basis to deviate from the sentencing guidelines at the
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conspiracy to commit robbery offense given that, inter alia, Acevedo-Solano
pleaded guilty to a lesser charge than the homicide-related charge he was
alternatively facing. Accordingly, Acevedo-Solano is due no relief because the
court provided adequate reasons to deviate from the sentencing guidelines
and, too, clearly considered mitigating factors at sentencing. Furthermore, for
the reasons already stated given the court’s complete consideration of all
relevant factors at sentencing, Acevedo-Solano has presented no basis to
depart from the aggravated-range sentence that the court imposed at the
firearms offense. Therefore, we affirm Acevedo-Solano’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2023
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