Com. v. Pinero, E. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDDY PINERO, : No. 3676 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, September 8, 2016,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0000256-2016
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 27, 2017
Eddy Pinero appeals from the September 8, 2016 judgment of
sentence entered in the Court of Common Pleas of Monroe County after a
jury convicted him of simple assault.1 The trial court imposed a sentence of
12 to 24 months of imprisonment. We affirm.
The record reflects that appellant’s conviction stemmed from an
incident that occurred on January 1, 2016. On that date, appellant; the
victim, who is the mother of appellant’s five children; a woman with whom
appellant was also romantically involved; and the victim’s friend went to a
motel room. While the four “partied” in the motel room, appellant told the
victim that he wanted her to engage in a “threesome” with appellant and
1
18 Pa.C.S.A. § 2701(a)(1).
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his other romantic interest. The victim refused. At this point, appellant
“started growling like a dog like he always does” and punched the victim in
her left eye, causing her to lose consciousness and fall to the floor. As a
result of the blow inflicted by appellant, the victim sustained a fracture of
her left orbital bone. (Notes of testimony, 4/26/16 at 6-7, 9-10.)
The trial court set forth the following procedural history:
After failing to appear at his scheduled sentencing
hearing on September 1, 2016, a bench warrant was
issued for [appellant]. Following execution of the
bench warrant on September 8, 2016, [appellant]
was sentenced to twelve (12) months to twenty-four
(24) months in a State Correctional Institution with a
time credit of twenty (20) days. On September 19,
2016, [appellant] filed a Motion for Modification of
Sentence which we denied following a hearing on
October 25, 2016. On November 28, 2016,
[appellant] filed a Notice of Appeal to the
Pennsylvania Superior Court. We issued an order
pursuant to Pa.R.A.P. 1925(b) requesting a Concise
Statement of Errors Complained of on Appeal and
[appellant] filed his concise statement within the
twenty-one (21) day period.
Trial court opinion, 1/10/17 at 1-2.
Appellant raises the following issue for our review:
Whether the [t]rial [c]ourt erred and abused its
discretion by sentencing [appellant] to the statutory
maximum penalty and high end of the standard
range sentencing guideline by failing to appropriately
consider the particular circumstances of the offense,
thereby creating an excessive and unnecessarily
punitive sentence beyond that appropriate under the
circumstances[?]
Appellant’s brief at 4.
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Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
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.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[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
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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 (citation omitted; brackets in original).
Here, appellant filed a timely notice of appeal. Although appellant filed
a timely motion for modification of sentence, he sought reconsideration
based on his contentions that the trial court “sentenced [appellant] on
incorrect sentencing guidelines as a result of an incorrect prior record score”
and because the trial court “sentenced [appellant] while taking into account
inaccurate information regarding the non-presence of the victim.”
(Appellant’s motion for modification of sentence, 9/19/16 at 2, ¶ 7.) In
reviewing appellant’s statement of questions involved, appellant complains
that his sentence was excessive. Indeed, within the argument section of his
brief, appellant complains that his sentence was excessive for a variety of
reasons, including his contention that the victim is violent and appellant
could have been justified in fracturing her left orbital bone; the victim’s
injury “was not severe” and only “appeared more severe than it was because
the victim sneezed following the injury”; and because the victim can “see
fine out of the eye.” (Appellant’s brief at 8-9.) Appellant did not properly
preserve a challenge to the excessiveness of his sentence in his motion for
modification of sentence. Appellant, therefore, has failed to invoke this
court’s jurisdiction.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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