Com. v. Calderon-Derodriguez, A.

• Court: Superior Court of Pennsylvania
• Decided: April 15, 2025
• Docket: 1483 MDA 2024
• Status: Unpublished

Opinion

J-A11016-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ARICELYS CALDERON-DERODRIGUEZ : : Appellant : No. 1483 MDA 2024

Appeal from the Judgment of Sentence Entered September 9, 2024 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000562-2023

BEFORE: MURRAY, J., KING, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY KING, J.: FILED APRIL 15, 2025

Appellant, Aricelys Calderon-Derodriguez, appeals from the judgment of

sentence entered in the Berks County Court of Common Pleas, following her

bench trial convictions for two counts of aggravated assault, four counts of

simple assault, and one count each of recklessly endangering another person

and harassment.1 We affirm.

The relevant facts and procedural history of this case are as follows. On

July 22, 2024, Appellant was convicted of the above-mentioned offenses in

connection with an assault by Appellant and her husband against their

neighbor. The court sentenced Appellant on September 9, 2024, to an

aggregate term of 4.5 to 9 years’ imprisonment. The court entered an ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1), (a)(4); 2701(a)(1), (a)(2), (a)(3); 2705; and

2709, respectively. J-A11016-25

amended sentencing order on September 26, 2024.2 Appellant did not file

post-sentence motions. Appellant timely filed a notice of appeal on October

8, 2024. On October 17, 2024, the court ordered Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant

complied on November 7, 2024.

Appellant raises one issue for our review:

Did the Trial Court err when it imposed a sentence inconsistent with the Sentencing Code and/or contrary to the fundamental norms which underlie the sentencing process, in that said sentence constituted an abuse of discretion because the sentence imposed represented an unreasonable and excessive sentence which failed to consider mitigating factors?

(Appellant’s Brief at 5).

Preliminarily, a challenge to the discretionary aspects of sentencing is

not automatically reviewable as a matter of right. Commonwealth v.

Hunter, 768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796

A.2d 979 (2001). Prior to reaching the merits of a discretionary sentencing

issue, we conduct a four-part test 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). ____________________________________________

2 The amended sentencing order pertained to restitution and ordered that restitution would be joint and several with Appellant’s co-defendant husband.

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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Significantly, objections to the discretionary aspects of a sentence are

waived if they are not raised at the sentencing hearing following imposition of

sentence or in a timely filed post-sentence motion. Commonwealth v.

Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d

538 (2013). “This failure cannot be cured by submitting the challenge in a

Rule 1925(b) statement.” Commonwealth v. McAfee, 849 A.2d 270, 275

(Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004).

Instantly, Appellant did not file any post-sentence motions or preserve

her sentencing challenge orally at the sentencing hearing following imposition

of sentence. Rather, Appellant raised her sentencing claim for the first time

in her Rule 1925(b) statement. Thus, Appellant’s sole claim on appeal is

waived. See Griffin, supra; McAfee, supra. Accordingly, we affirm and

strike this case from the argument list.3

Judgment of sentence affirmed. Case stricken from argument list.

____________________________________________

3 Even if Appellant had preserved her sentencing claim on appeal, we would

see no reason to disturb the court’s sentencing discretion based on the reasoning provided by the court on the record and in its opinion. (See N.T. Sentencing, 9/9/24, at 19; R.R. at 92; Trial Court Opinion, filed 12/3/24, at 5-6). See also Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62 (2007) (discussing rationale behind broad sentencing discretion afforded to trial courts).

-3- J-A11016-25

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/15/2025

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