Com. v. Rivera, L.

• Court: Superior Court of Pennsylvania
• Decided: January 21, 2026
• Docket: 657 EDA 2025
• Status: Unpublished
• Author: Bender

Opinion

J-S43042-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUIS RIVERA : : Appellant : No. 657 EDA 2025

Appeal from the Judgment of Sentence Entered January 15, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006964-2023

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 21, 2026

Appellant, Luis Rivera, appeals from the judgment of sentence of five to

ten years’ incarceration, followed by 20 years’ probation, imposed after he

pled guilty to possession with intent to deliver (PWID), 35 P.S. § 780-

113(a)(30), and criminal conspiracy, 18 Pa.C.S. § 903. On appeal, Appellant

solely challenges the discretionary aspects of his sentence. We affirm.

The facts underlying Appellant’s convictions are not pertinent to the

issue he raises herein. Procedurally, we note that Appellant pled guilty to the

above-stated offenses on September 6, 2024. On January 15, 2025, the court

sentenced him to the aggregate term set forth supra.1 Appellant filed a timely

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1 Appellant’s convictions in this case constituted a violation of his probation in

another case, docketed at CP-51-CR-0003621-2021 (hereinafter, “case 3621”). His probation was ultimately revoked in case 3621, and he was resentenced to a term of one to two years’ incarceration, imposed to run consecutively to his term of incarceration in the instant case. J-S43042-25

post-sentence motion, which the court denied. He then filed a timely notice

of appeal, and he and the court have complied with Pa.R.A.P. 1925. 2 Herein,

Appellant states the following issue for our review:

[I.] Was the sentence excessive and an abuse of discretion, for the following reasons:

A. It was more than necessary to protect the public where … [A]ppellant’s history is comprised of non-violent offenses, to include the instant matter;

B. [T]he period of 20 years of probation consecutive to incarceration was excessive[,] as … [A]ppellant will be 65 years old when he has completed his supervision, which is much more than [that which is] necessary to rehabilitate … [A]ppellant and he will have long since aged-out of anti- social and criminal behavior;

C. [T]he consecutive nature of this sentence with [his violation of probation] sentence[] was more than [that which is] necessary to rehabilitate … [A]ppellant and protect the public;

2 We note that, initially, Appellant filed two pro se notices of appeal, each listing both the trial court docket number for case 3621, as well as the docket number for the instant case, CP-51-CR-0006964-2023 (hereinafter, “case 6964”). The appeals were assigned docket numbers 657 EDA 2025 and 658 EDA 2025. At docket number 657 EDA 2025, on April 3, 2025, this Court entered an order directing Appellant to comply with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (requiring appellants to file separate notices of appeal when single order resolves issues arising on more than one lower court docket). This Court’s order directed Appellant to file an amended notice of appeal in case 6964 listing only the docket number for that case in the caption. On April 11, 2025, counsel for Appellant complied. At docket number 658 EDA 2025, on April 3, 2025, this Court entered a show cause order why the appeal from the judgment of sentence imposed in case 3621 should not be quashed as untimely filed. On April 11, 2025, at docket number 658 EDA 2025, counsel for Appellant filed a “Praecipe To Discontinue Appeal.” Accordingly, that appeal was discontinued.

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D. [The s]entence imposed was more than that requested by the Commonwealth;

E. … [A]ppellant, who candidly explained his reasons for selling drugs, nonetheless accepted responsibility by pleading guilty, and his candor was not meant to disrespect the [c]ourt[,] but to explain harsh circumstances;

F. [A]ppellant’s brash courtroom behavior was a human response ([that] he acknowledges [was] inexcusable) to a lifetime of tragic events, to include being in the dependency system, [the] murder of a sibling, and the death of his infant daughter;

G. [A]lthough an admitted repeat drug dealer, [A]ppellant nonetheless has a history of meaningful and legal employment?

Appellant’s Brief at 4.

Essentially, Appellant argues that the trial court abused its discretion by

imposing an excessive sentence which “was more than necessary to protect

the public and rehabilitate … [A]ppellant.” Id. at 13. He claims that the court

failed to properly consider the mitigating factors in his case, such as his

“acceptance of responsibility, … the death of his daughter, [the] murder of his

brother, [Appellant’s] being in the dependency system as a child[,] and his

work history.” Id. Appellant insists that the court instead premised its harsh

sentence on an emotional outburst he had during the sentencing hearing,

which demonstrates “that the court exhibited ill-will toward … [A]ppellant

because of the outburst.” Id. at 21.3 According to Appellant, “[w]hile the ill- ____________________________________________

3 Specifically, the record indicates that during the sentencing proceeding, Appellant left the courtroom and was “cursing” and loudly calling the judge a “bitch” while he was in the “cell room” just outside the courtroom. See N.T. Sentencing, 1/15/25, at 24-25. When Appellant returned to the courtroom, (Footnote Continued Next Page)

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will is rather understandable, it still amounts to an abuse of discretion because

the length of the sentence was excessive,” and the mitigation evidence he

presented outweighed his courtroom misconduct. Id. at 24.

No relief is due. Initially, Appellant’s assertions implicate the

discretionary aspects of his sentence.

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:

We conduct a four-part analysis to determine: (1) whether [the] 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 [the] 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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)…. Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)….

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question exists “only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent ____________________________________________

the judge called his behavior a “temper tantrum” and “contemptuous[,]” to which Appellant replied, “You know, I don’t give a fuck.” Id. at 25. The court then stated, “I know, I can clearly see that, but as you can see, I’m not changing your sentence as a result. You have 10 days from today’s date to ask me to reconsider.” Id. Appellant responded, “All right. You done? I’m done.” Id. The proceeding then continued.

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with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Here, the Commonwealth initially argues, and we agree, that Appellant’s

sentencing issue is waived, as he failed to properly preserve it at sentencing

or in his post-sentence motion. See Commonwealth’s Brief at 9-10. Therein,

Appellant stated: [Appellant], by and through his attorney, Andrew J. Levin, Esquire, hereby files this Motion for Reconsideration of Sentence and avers the following:

1. On January 15, 2025, [Appellant] was sentenced … on Manufacture, Delivery or Possession with Intent to Manufacture or Deliver, Conspiracy-Manufacture, Delivery or Possession with Intent to Manufacture or Deliver and Possession of a Controlled Substance and received an aggregate 5 to 10 years to be a served in a State Correctional Institution.

2. [Appellant] wishes to present further mitigation to Your Honor for reconsideration of sentence.

Motion for Reconsideration of Sentence, 1/22/25, at 1 (single page). At no

point in this motion did Appellant argue that his sentence is excessive because

the court failed to consider the mitigating factors, that the court improperly

focused on his courtroom outburst, or that his sentence exceeds that which is

necessary to protect the public or meet his rehabilitative needs. Instead, he

simply requested the opportunity to present further mitigation evidence to

the court. Accordingly, Appellant has not preserved his instant sentencing

claim for our review. See Griffin, supra. See also Pa.R.A.P. 302(a) (“Issues

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not raised in the trial court are waived and cannot be raised for the first time

on appeal.”).

In any event, even if not waived, we would agree with the

Commonwealth that Appellant’s main assertion — that the court failed to

properly consider the mitigating factors in his case — does not present a

substantial question for our review. See Commonwealth’s Brief at 12 (citing

Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super. 2021) (“This

Court repeatedly has held that ‘a claim of inadequate consideration of

mitigating factors does not raise a substantial question for our review.’”)

(citation omitted)).4

Moreover, even if Appellant had raised a substantial question, we would

discern no abuse of discretion in the court’s sentencing decision. The trial

court ultimately imposed a mitigated range sentence for Appellant’s PWID

offense. Specifically, the court recognized that Appellant’s prior record score

was a five, and the offense gravity score for his PWID offense was an 11,

“making the guidelines a 72 to 90[,] plus or minus 12.” N.T. Sentencing at 3.

4 We note that Appellant also argues, in his Rule 2119(f) statement, that “the

unnecessary consecutive structure of the sentence against the [violation of probation] resentencing … rais[es] a substantial question.” Appellant’s Brief at 16. However, the trial court did not impose Appellant’s instant sentence to run consecutively to his sentence in case 3621; rather, the court instead imposed his sentence in case 3621 to run consecutively to his sentence in the instant case. See Sentencing Order Case 3621, 1/16/25, at unnumbered 1 (“This sentence is to run consecutive to CP-51-CR-6964-2023.”). Because Appellant discontinued his appeal from his judgment of sentence in case 3621, the imposition of consecutive sentences across his two cases is not before us, and cannot constitute a substantial question herein.

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The court imposed a minimum sentence of 60 months’ incarceration, which

was therefore in the mitigated range of the guidelines. Accordingly, the record

contradicts Appellant’s assertion that the court failed to take into account the

mitigating factors in fashioning his sentence.

It is also well-settled that “when a court possesses a pre-sentence

report, it is presumed the court was aware of and weighed all relevant

information contained in the report along with any mitigating sentencing

factors.” Commonwealth v. Velez, 273 A.3d 6, 10 (Pa. Super. 2022)

(citation and internal quotation marks omitted; emphasis added). Here, the

court had a pre-sentence investigation report and explicitly stated that it

considered it. See N.T. Sentencing at 15. The court also stated that it

considered a mental health report, the gravity of the offense, the need to

protect the community, and Appellant’s rehabilitative needs. Id. at 11, 15.

Further, the court explained that it took into account the comments by

Appellant and his counsel, id. at 11, during which they detailed all the

mitigating factors that Appellant highlights herein, id. at 4-10. The weight

that the court chose to give those factors was exclusively for it to decide.

Velez, 273 A.3d at 10 (stating that “the weight accorded to the mitigating

factors or aggravating factors presented to the sentencing court is within the

court’s exclusive domain”) (citation omitted). Finally, contrary to Appellant’s

argument, nothing in the record suggests that the court’s sentence was

premised on his courtroom outburst or any ill-will by the court; in fact, the

court stated its sentence prior to Appellant’s misconduct. See id. at 12.

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Accordingly, even had Appellant preserved his sentencing claim for our

review — and even if his issue constituted a substantial question — we would

discern no abuse of discretion in the mitigated-range sentence that the court

imposed. See Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.

Super. 2006) (stating that “[s]entencing 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”).

Judgment of sentence affirmed.

Date: 1/21/2026

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