Com. v. Calderon, T.

• Court: Superior Court of Pennsylvania
• Decided: October 31, 2025
• Docket: 17 EDA 2025
• Status: Unpublished

Opinion

J-S37008-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRENCE CALDERON : : Appellant : No. 17 EDA 2025

Appeal from the Judgment of Sentence Entered July 24, 2024 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000122-2024

BEFORE: DUBOW, J., KUNSELMAN, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 31, 2025

Appellant, Terrence Calderon, appeals from the July 24, 2024 judgment

of sentence of 4 to 8 years of incarceration entered in the Montgomery County

Court of Common Pleas following his conviction of Strangulation, Simple

Assault, and Harassment.1 Appellant challenges the sufficiency of the

evidence in support of his Strangulation conviction and the discretionary

aspects of his sentence. After careful review, we affirm.

The relevant facts and procedural history are as follows. On November

6, 2023, Appellant’s wife (“Victim”), obtained a temporary protection from

abuse (“PFA”) order against Appellant that, inter alia, evicted him from the

home he shared with Victim and their teenage children. Nevertheless, at

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2718(a)(1), 2701(a)(1), and 2709(a)(1), respectively. J-S37008-25

approximately 7:00 AM on December 6, 2023, Appellant entered Victim’s

home. When Victim encountered Appellant, she informed him that he was not

permitted to be there due to the PFA order and asked him to leave three or

four times.

Appellant refused to leave and positioned himself very close to Victim,

at which time Victim, fearful for her safety, struck Appellant with a plastic

figurine. When Victim then turned to walk up the stairs, Appellant grabbed

her from behind by the neck with two hands and began to strangle her,

causing the impairment of Victim’s breathing. Appellant then forced Victim up

the stairs and into their son’s (“Son”) bedroom. Appellant and Victim fell onto

Son’s bed, causing Son to wake up and observe Appellant strangling victim.

Son physically restrained Appellant and instructed Appellant to get off Victim.

M.C. (“Daughter”), who had witnessed the entire event, assisted Son by

hitting Appellant and yelling at him to remove his hands from Victim’s neck. 2

Appellant eventually stopped strangling Victim and fled from the home.

Victim, feeling dizzy and out of breath, fled the home and called the

police. While investigating the incident, authorities took pictures of Victim’s

neck, which showed bruising and nail and finger marks.

At the commencement of Appellant’s April 30, 2024 bench trial, the

Commonwealth moved to amend the bills of information to re-grade the

Strangulation charge to a first-degree felony because Appellant was subject ____________________________________________

2 Son and Daughter were 18 years old and 15 years old, respectively, at the

time of Appellant’s trial.

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to an active PFA order at the time of the strangulation. 3 The trial court granted

the motion over Appellant’s objection.

The Commonwealth then presented the testimony of Victim, Son, and

Daughter, who testified in accordance with the above facts. Daughter also

testified that the physical altercation between her parents lasted for

approximately 8 minutes. N.T. Trial, 4/30/24, at 49. In addition to witness

testimony, the trial court also admitted into evidence a copy of the temporary

PFA order that evicted Appellant from the family home. On cross-examination,

Victim testified that she told emergency medical services staff that she felt

fine, she did not need medical attention, and that Appellant did not grab her

by the front of her neck.

Appellant testified on his own behalf. He acknowledged knowing about

the PFA order and that he was not supposed to be in Victim’s home. Id. at

64, 70. He admitted grabbing Victim by the back of her neck after she had

hit him with a figurine or ornament in an attempt “to restrain her after she hit

[him] multiple times,” but denied choking or intentionally trying to strangle

her. Id. at 67-68. He testified that he used “only one hand.” Id. at 68.

After considering the evidence and arguments of counsel, the trial court,

finding “the testimony of [Victim] more credible than [Appellant’s]

testimony[,]” convicted Appellant of the above charges. Id. at 83. In ____________________________________________

3 Strangulation is graded as a misdemeanor of the second degree unless “at

the time of the commission of [the] offense, the defendant is subject to an active [PFA] order[,] in which case it is graded as a first-degree felony.” 18 Pa.C.S. § 2718(d)(1), (3).

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particular, the court credited Victim’s testimony that Appellant “impeded her

breathing[.]” Id. The court also found that “[t]here was testimony that there

was an active PFA and [Appellant] admitted notice of it.” Id. The trial court

was unpersuaded by Appellants assertion that he was acting in self-defense

to restrain Victim after she hit him, noting, “if [Appellant] had grabbed

[Victim] from the front, then, yes, I would agree, perhaps, it was self-defense

at that point and she would be coming at him. But all the testimony was, and

[Appellant] confirmed, that he did it from behind, so at that point in time she’s

not coming at him.” Id.

The trial court deferred sentencing pending preparation of a presentence

investigation (“PSI”) report.

On July 24, 2024, after considering the sentencing guidelines, the PSI

report, victim impact testimony4 and character letters, Appellant’s allocution,

a mitigation report from Appellant’s social worker, and argument of counsel,

and specifically finding Appellant’s family’s support as a mitigating factor, the

trial court sentenced Appellant to a term of 4 to 8 years of incarceration for

the Strangulation conviction, a concurrent term of 6 to 12 months of

4 Notably, Victim, Son, and Daughter each urged the court to impose a county

sentence. The court noted, however, that a county sentence would be “well below mitigated,” and decline to impose a county sentence. N.T. Sent’g, 7/24/24, at 25.

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incarceration for the Simple Assault conviction, 5 and a concurrent term of 60

days of incarceration for the Harassment conviction. The court noted that “the

sentence is at the bottom of the mitigated range.” N.T. Sent’g, 7/24/24, at

25.

Appellant filed a post-sentence motion in which he asserted that his

sentence was excessive, the court placed insufficient reasons on the record in

support of the sentence, and the court failed to give proper weight to the

mitigating factors set forth in the PSI report, character letters, and testimony.

Appellant also claimed that the court mis-graded the Strangulation and Simple

Assault offenses because it did not make a specific finding at trial that

Appellant committed those offenses against a family member or while subject

to a PFA order. On November 22, 2024, the trial court denied this motion. 6

This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.

1925(b) statement in which he asserted that the: (1) Commonwealth failed

to prove that (a) he committed the offense of Strangulation against a family

or household member as defined in 23 Pa.C.S. § 6102, thereby increasing the

grading of the offense and the offense gravity score; (b) he committed the

offense of Strangulation while subject to an active PFA order; and (c) he ____________________________________________

5 At the sentencing hearing, the court explained that it would not apply the

domestic violence enhancement for the Strangulation conviction because the grading of the offense was already increased because Appellant committed the offense against a family member while a PFA order was in effect, but that the court would apply the enhancement to the Simple Assault conviction. 6 Appellant filed a second post-sentence motion challenging the weight of

the evidence. This trial court also denied this motion.

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committed the offense of Simple Assault against a family or household

member as defined in 23 Pa.C.S. § 6102, thereby increasing the grading of

the offense; and (2) that the trial court imposed an excessive sentence. The

trial court filed a responsive opinion.

Appellant raises the following three issues on appeal:

1. Whether the [t]rial [c]ourt’s guilty verdict as to Count 1, Strangulation (F-1), was unsupported where the evidence was insufficient to show that [] Appellant had the specific intent to knowingly or intentionally impede the breathing or circulation by applying pressure to the throat or neck of [Victim]?

2. Whether the [t]rial [c]ourt’s guilty verdict as to Count 1, Strangulation (F-1), was unsupported where the evidence was insufficient to show that [Victim’s] breathing or circulation was impeded?

3. Whether the trial court’s sentence of 4 to 8 years of incarceration was manifestly excessive and where the [t]rial [c]ourt failed to state sufficient reasons [] on the record for the sentence?

Appellant’s Brief at 5.

In Appellant’s first issue, he contends that the Commonwealth’s

evidence was insufficient to prove beyond a reasonable doubt that he

possessed the requisite intent to strangle Victim. Id. at 18. He highlights his

own testimony that Victim’s conduct prompted him to grab Victim by the back

of the neck in order to restrain her and that he never intended to strangle or

choke Victim. Id.

Before we address the merits of this issue, we first consider whether

Appellant has preserved it for review. It is well-settled that any issues not

raised in a Rule 1925(b) statement will be deemed waived. Commonwealth

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v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Pennsylvania Rule of Appellate

Procedure 1925(b) provides, inter alia, that in a statement of matters

complained of on appeal, an appellant “shall concisely identify each error that

the appellant intends to assert with sufficient detail to identify the issue to be

raised for the judge[,]” and issues that are not properly raised are deemed

waived. Pa.R.A.P. 1925(b)(4). “In order to preserve a challenge to the

sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement

must state with specificity the element or elements upon which the appellant

alleges that the evidence was insufficient.” Commonwealth v. Garland, 63

A.3d 339, 344 (Pa. Super. 2013). Compliance with Rule 1925(b) is mandatory

and we do not have authority to permit departures from the rule’s

requirements. Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

In his Rule 1925(b) Statement, Appellant did not raise the issue he now

sets forth in his brief challenging the sufficiency of Commonwealth’s evidence

proving the mens rea element of the offense of Strangulation. Rather, as set

forth supra, Appellant challenged the sufficiency of the evidence

demonstrating that he committed the offense of Strangulation against a family

or household member, thereby increasing the grading of the offense and the

offense gravity score.

Because Appellant did not raise any issue pertaining to the sufficiency

of the Commonwealth’s evidence in support of the mens rea element of the

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offense of Strangulation in his Rule 1925(b) statement, his first issue is

waived.7, 8

In his second issue, Appellant argues that the Commonwealth presented

insufficient evidence to prove that Appellant committed the offense of

Strangulation while subject to an active PFA order and, as such, the trial court

should not have applied “the enhancement.”9 Appellant’s Brief at 19-21.

Appellant did not, however, include this issue in his statement of questions ____________________________________________

7 Even if Appellant had preserved this claim it would fail as our de novo review

of the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, indicates that Appellant grabbed Victim by the neck with two hands, which left marks on Victim’s neck and caused her to have difficulty breathing. This evidence is sufficient to prove that Appellant possessed the requisite mens rea to support a Strangulation conviction. See Commonwealth v. Weitzel, 304 A.3d 1219, 1225 (Pa. Super. 2008) (affirming Strangulation conviction where the defendant squeezed his victim’s neck with both hands, leaving red marks, and causing the victim to have trouble breathing, explaining that “testimony of the victim that the defendant put pressure on her neck that caused difficulty breathing is [] sufficient to prove the elements of [S]trangulation”).

8 Appellant also claims, relying on Victim’s testimony that she informed EMS

workers immediately after the incident that she felt fine, was breathing fine, and did not need medical attention, that the Commonwealth did not prove beyond a reasonable doubt that he impaired Victim’s breathing. Appellant’s Brief at 19. Appellant likewise did not preserve this issue in his Rule 1925(b) statement, so it too is waived. 9 Appellant appears here to conflate the increased grading of the Strangulation

offense pursuant to 18 Pa.C.S. § 2718(d) with the “domestic violence enhancement” for sentencing purposes. Here, the court expressly stated that while grading the offense as a first-degree felony was appropriate given Appellant’s status as a person subject to a PFA order at the time he committed the offense, because the grading of the offense was already increased because of this status, it was not applying the “domestic violence enhancement” when sentencing Appellant for his Strangulation conviction. N.T. Sent’g at 3-4.

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involved and it not “fairly suggested thereby” as required by Pa.R.A.P. 2116.

See Pa.R.A.P. 2116(a) (providing “[n]o question will be considered unless it

is stated in the statement of questions involved or is fairly suggested

thereby”); see also Commonwealth v. Harris, 979 A.2d 387, 397 (Pa.

Super. 2009) (“[I]ssues to be resolved must be included in the statement of

questions involved.”); Thomas v. Elash, 781 A.2d 170, 176-77 (Pa. Super.

2001) (“[A]n appellant must present all issues on appeal in the [s]tatement

of [q]uestions involved section of his brief. This rule is to be considered in the

highest degree mandatory, admitting of no exception[.]”) (internal quotation

marks omitted). Accordingly, Appellant has waived this issue by failing to

include it in his statement of questions involved. 10

In his final issue, Appellant challenges the discretionary aspects of his

sentence. Appellant’s Brief at 21-23. In his statement of questions involved,

Appellant contends that his sentence is excessive because the court failed to

state sufficient reasons on the record to support the sentence. Id. at 5. In

the argument section of his brief, however, Appellant argues that his sentence

is excessive because the court “failed to adequately consider that [his] prior

record score was fueled by a conviction for robbery approximately 25 years ____________________________________________

10 Moreover, even if he had not waived it, this issue would lack merit. The record reflects that Appellant admitted at trial that he knew he was subject to an active PFA order that prevented him from entering Victim’s home on the day of the incident and the trial court admitted into the record a copy of the PFA order. Thus, contrary to Appellant’s assertion, the Commonwealth did present evidence to support its contention that he was subject to a PFA order when he strangled Victim.

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ago.” Id. at 23 He asserts that “without this decades[-]old conviction, []

Appellant was facing a much lesser sentence.” Id. Because Appellant failed

to include in the statement of questions involved the specific discretionary

aspects of sentencing claim upon which he presents his appellate argument,

nor is it fairly suggested thereby, we find that Appellant has waived it. 11

Judgment of sentence affirmed.

Date: 10/31/2025

11 Even if Appellant had not waived his discretionary aspects of sentencing claim, it would not entitle him to relief as our review of the notes of testimony from Appellant’s sentencing hearing indicates that the court both considered, and fashioned Appellant’s mitigated-range sentence based on, the presence of mitigating factors and the court placed its reasons for the sentence on the record. See N.T. Sent’g at 4, 23-25.

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