Com. v. Valdes, J.

J-S38041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE ANTONIO VALDES, :
:
Appellant : No. 1665 MDA 2014
Appeal from the Judgment of Sentence entered on August 29, 2014
in the Court of Common Pleas of Perry County,
Criminal Division, No. CP-50-CR-0000244-2012
BEFORE: WECHT, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 29, 2015
Jose Antonio Valdes (“Valdes”) appeals from the judgment of sentence
imposed following resentencing for his convictions of two counts each of
robbery (threat of serious bodily injury), robbery (taking property by force),
terroristic threats, unlawful restraint, and simple assault, and three counts of
theft by unlawful taking.1 We affirm.
This Court previously set forth the relevant factual history:
At approximately 8:15 a.m., [on] March 9, 2012, Charlotte
Schlosman (“Schlosman”) and Mindy Group (“Group”) were
working in the Dollar General Store in Marysville, Pennsylvania.
N.T. Trial, 3/28/2013, at 19-20. The first customer of the day, a
man later identified as Valdes, entered the store and purchased
a drink. Id. at 23-24, 55. Schlosman recognized Valdes from
his having shopped in the store on prior occasions. Id. at 24.
After buying the drink, Valdes left the counter area and walked
to the door. Id. at 56. Valdes returned to the checkout counter
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii); 3701(a)(1)(v); 2706(a)(1); 3902(a)(1),
2701(a)(3); 3921(a).
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area, pulled out what appeared to be a black semiautomatic
handgun, and told Group he wanted the money out of the
register. Id. at 57. The two women had a difficult time opening
the cash drawer due to their nerves. Id. at 26, 57. Eventually,
Schlosman, the assistant manager, used her key to open the
register. Id. at 26. After taking the money, Valdes ordered the
two women into the back of the store. Id. at 28. He repeatedly
asked for the combination to the safe. Id. at 27-28. Valdes
attempted to tape each woman’s hands behind her back, but
could not because he could not find the beginning of the tape.
Id. at 31. Eventually, Valdes broke the store phone and took
each woman’s cell phone and keys and left. Id. at 31-32.
Commonwealth v. Valdes, 105 A.3d 790 (Pa. Super. 2014) (unpublished
memorandum at 2-3).
Valdes was arrested and charged with numerous offenses. A jury
found Valdes guilty of the above-mentioned crimes. The trial court
sentenced Valdes to an aggregate sentence of ten to twenty years in prison.2
Valdes filed two Post-Sentence Motions, which were denied on May 20,
2013.
On July 14, 2014, this Court affirmed the convictions, but vacated the
sentence based on Alleyne v. United States, 133 S. Ct. 2151 (2013), and
remanded for resentencing. See Valdes, 105 A.3d 790 (unpublished
memorandum at 3-15). Upon remand, the trial court resentenced Valdes to
an aggregate prison term of six to fourteen years. Valdes filed a timely
Notice of Appeal.
Valdes raises the following issues on appeal:
2
Relevantly, the trial court imposed mandatory minimum sentences under
42 Pa.C.S.A. § 9712.
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1) Whether the [t]rial court erred when it applied a sentence for
robbery threat of serious bodily injury[,] as the jury had not
been asked to conclude that a firearm was present during the
robbery[,] and without a jury concluding the presence of a
firearm[,] there is insufficient evidence to establish a threat
of serious bodily injury[?]
2) Whether or not the [t]rial [c]ourt erred when it applied a
sentence for (2) counts of robbery threat of serious bodily
injury as the harm occurred in one singular event, at one
singular time, at one singular location and[,] therefore[,]
should merge[?]
3) Whether or not the [t]rial [c]ourt abused its discretion by
sentencing [Valdes] at the top end of the sentencing
guidelines when the evidence demonstrates that [Valdes]
was a model prisoner who has successfully availed himself of
available measures to rehabilitate[,] and has a prior record
score of 0[?]
4) Whether or not the [trial] court committed reversible error
by denying the Post-Sentence Motion[s] filed of record on
September 5, 2014[?]
Brief for Appellant at 5-6 (some capitalization omitted).
In his first claim, Valdes asserts that the evidence was insufficient to
support his robbery conviction. Id. at 12. Valdes argues that the jury had
not been asked to conclude that a firearm was present during the robbery.
Id. Valdes contends that without a jury finding the presence of a firearm,
there is insufficient evidence to establish a threat of serious bodily injury.
Id. at 13.
Since Valdes is on direct appeal following remand for the limited
purpose of resentencing, we may not reach the merits of his first challenge.
See Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002)
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(stating that following remand for resentencing, the only issues subject to
appellate scrutiny are challenges to the sentence imposed on remand);
Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super. 2001) (stating
that “where a case is remanded to resolve a limited issue, only matters
related to the issue on remand may be appealed”).3
In his second claim, Valdes argues that the trial court erred when it
imposed sentences on two counts of robbery (threat of serious bodily injury)
because the harm occurred in “one singular event, at one singular time, and
at one singular location.” Brief for Appellant at 13. Valdes contends that the
sentences for each count should merge. Id. Valdes contends that the
doctrine of merger should be applied equally when a defendant is convicted
of multiple crimes arising out of the same act, where all the crimes are equal
in degree. Id.“A claim that the trial court imposed an illegal sentence by failing to
merge sentences is a question of law. Accordingly, our standard of review is
plenary." Commonwealth v. Williams, 958 A.2d 522, 527 (Pa. Super.
2008). Further, the merger doctrine provides that “[n]o crimes shall merge
for sentencing purposes unless the crimes arise from a single criminal act
3
Even if we could address the merits of his claim, the above facts were
sufficient to support Valdes’s robbery convictions. Further, contrary to
Valdes’s argument, the presence of a firearm is not a necessary element for
robbery (threat of serious bodily injury). Rather, the jury must only find
that Valdes threatened the two store clerks or intentionally placed them in
fear of immediate serious bodily injury to sustain his conviction. See 18
Pa.C.S.A. § 3701(a)(1)(ii).
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and all of the statutory elements of the other offense are included in the
statutory elements of the other offense.” 42 Pa.C.S.A. § 9765.
Here, we conclude that two distinct criminal acts resulted because
Valdes threatened Schlosman and Group separately by pointing his gun at
each of them and demanding money. Accordingly, the trial court properly
sentenced Valdes on two counts of robbery (threat of serious bodily injury).
See Commonwealth v. Rozplochi, 561 A.2d 25, 30 (Pa. Super. 1989)
(stating that “where a defendant threatens to inflict serious bodily injury on
two employees in order to effectuate a theft of property from their common
employer, the defendant may be convicted of two counts of robbery.”).
In his third claim, Valdes challenges the discretionary aspects of his
sentence. Brief for Appellant at 14-15. Valdes asserts that his sentence is
manifestly excessive where Valdes has demonstrated himself to be a model
prisoner, rehabilitated himself, and had a prior record score of zero. Id. at
14. Valdes contends that the trial court did not properly account for the
protection of the public and his rehabilitation needs. Id. at 14-15.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] 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
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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).
Moury, 992 A.2d at 170.
Here, Valdes has failed to include the required concise statement
under Pa.R.A.P. 2119(f), and the Commonwealth objects to this omission.
Brief for Commonwealth at 5; see also Commonwealth v. Robinson, 931
A.2d 15, 19 (Pa. Super. 2007) (stating that if a defendant fails to include an
issue in his Rule 2119(f) statement, and the Commonwealth objects, then
the issue is waived and this Court may not review the claim). Thus, we
cannot address Valdes’s sentencing claim.4
In his fourth issue, Valdes baldly claims that his Post-Sentence Motions
were improperly denied. Brief for Appellant at 15. Valdes merely
incorporates by reference his prior sentencing claims. It is well settled that
4
Even if we addressed his sentencing claim, we would conclude that the trial
court did not abuse its discretion in imposing the sentence upon remand.
See Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010)
(stating that “[s]entencing is vested in the discretion of the trial court, and
will not be disturbed absent a manifest abuse of that discretion.”). Here, the
trial court was informed by a pre-sentence investigation report. See Trial
Court Opinion, 12/22/14, at 9-10; see also Downing, 990 A.2d at 794(stating that “where the trial court is informed by a pre-sentence report, it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”). The trial court also stated that Valdes’s actions
were “cold and calculating” based on the video footage and the victims were
clearly terrified by the incident. Id. at 10. The trial court also mentioned
Valdes’s drug addiction and that the rehabilitation efforts should continue in
prison. Id. Thus, the trial court did not abuse its discretion in imposing the
sentence.
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incorporation by reference “is an unacceptable manner of appellate
advocacy[.]” Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011).
Thus, this claim is waived. Id. at 343.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
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