Com. v. Vega-Pabon, B.

• Court: Superior Court of Pennsylvania
• Decided: October 29, 2024
• Docket: 2804 EDA 2023
• Status: Unpublished

Opinion

J-S37036-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2804 EDA 2023

Appeal from the Judgment of Sentence Entered September 20, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000438-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2805 EDA 2023

Appeal from the Judgment of Sentence Entered September 20, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000439-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2806 EDA 2023

Appeal from the Judgment of Sentence Entered September 20, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000440-2019 J-S37036-24

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2807 EDA 2023

Appeal from the Judgment of Sentence Entered September 20, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000441-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2808 EDA 2023

Appeal from the Judgment of Sentence Entered January 18, 2022 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000442-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2809 EDA 2023

Appeal from the Judgment of Sentence Entered September 20, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000443-2019

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COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2810 EDA 2023

Appeal from the Judgment of Sentence Entered January 18, 2022 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000444-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BERTO VEGA-PABON : : Appellant : No. 2811 EDA 2023

Appeal from the Judgment of Sentence Entered September 20, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002265-2020

BEFORE: BOWES, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 29, 2024

In these consolidated appeals, 1 Berto Vega-Pabon (“Vega-Pabon”)

appeals nunc pro tunc from the judgment of sentence following his jury

____________________________________________

1 Vega-Pabon complied with the dictates of our Pennsylvania Supreme Court

in Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding prospectively from the date of the Walker decision, “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case.”). In April 2024, this Court consolidated the appeals sua sponte.

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convictions of two counts of rape of a child, three counts of aggravated

indecent assault of a child, two counts of aggravated indecent assault without

consent, two counts of statutory sexual assault, two counts of sexual assault,

one count of involuntary deviate sexual intercourse (“IDSI”) by forcible

compulsion, one count of IDSI with a child, two counts of terroristic threats,

one count of incest complainant under thirteen years of age, eight counts of

indecent assault of person less than thirteen years of age, eight counts of

indecent assault without consent of other, seven counts of corruption of

minors, and one count of endangering the welfare of a child. 2 For the reasons

discussed below, we affirm.

Because Vega-Pabon solely challenges the discretionary aspects of his

sentence and because the facts of this case are well known to the parties and

are not the subject of the instant appeal, we only briefly detail the crimes the

jury found Vega-Pabon committed. Between 2006-2013, Vega-Pabon

sexually assaulted eight children, seven girls and one boy, some on multiple

occasions. The children were between the ages of five and thirteen at the

time of the assaults. All the children were known to Vega-Pabon, and most

were related to him either by blood or marriage, including some of his

grandchildren.

2 See 18 Pa.C.S.A. §§ 3121(c), 3125(b), 3125(a)(1), 3122.1, 3124.1, 3123(a)(1), 3123(b), 2706(a)(1), 4302(b)(1), 3126(a)(7), 3126(a)(1), 6301(a)(1), and 4304(a)(1).

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Following a June 2021 trial, the jury convicted Vega-Pabon of the above-

cited offenses. A combined sexually violent predator (“SVP”) and sentencing

hearing took place in September 2021. The trial court found Vega-Pabon to

be an SVP. At the sentencing hearing, the trial court had the benefit of a pre-

sentence investigation report (“PSI”), a psychosexual evaluation, the SVP

assessment, and several victim impact statements. See N.T., 9/20/21, at 38-

44, 49. Vega-Pabon spoke in his own defense, proclaiming his innocence,

claiming he “didn’t get the help that [he] should have gotten” from counsel,

and declaring all the victims lied. See id. at 29.

The trial court sentenced Vega-Pabon to an aggregate term of

incarceration of one-hundred-and-fourteen years and seven months to two-

hundred-twenty-nine years and three months in prison. See Trial Court

Opinion, 2/24/24, at 1. Each sentence was within the standard range of the

sentencing guidelines, but the court directed they be served consecutively.

See N.T., 9/20/21, at 56-60.

Vega-Pabon subsequently filed a post-sentence motion for

reconsideration in these consolidated cases arguing the trial court failed to

give him credit for time served, failed to merge certain of the charges for

sentencing purposes, and failed to consider his age (sixty-nine at the time of

sentencing), his health, or the likelihood of release in fashioning its sentence.

See Motion for Reconsideration of Sentence, 9/24/21, at 1 (unnumbered).

The trial court issued an order granting Vega-Pabon credit for time served,

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ordering a resentencing hearing on the merger issue, and otherwise denying

the motion. See Order, 12/27/21, at 1 (unnumbered).

In January 2022, by agreement of the parties, the trial court

resentenced Vega-Pabon. The parties agreed that certain charges in two of

the cases merged for purposes of sentencing, however, the aggregate

sentence remained unchanged. See N.T. 1/18/22, at 1-6. The court granted

Vega-Pabon leave to file a second post-sentence motion. Vega-Pabon then

filed a timely post-sentence motion arguing his sentence was unreasonable

and excessive because the trial court failed to consider mitigating factors,

including his age and his likelihood of release. See Post-Sentence Motion,

3/3/22, at 2. The trial court denied the motion. Vega-Pabon did not file an

appeal.

In May 2023, Vega-Pabon filed a petition for relief pursuant to the Post

Conviction Relief Act (“PCRA”), seeking restoration of his direct appeal rights.

The trial court granted the PCRA petition and reinstated Vega-Pabon’s direct

appeal rights. This timely appeal followed.3

Vega-Pabon raises a single issue for our review:

Was the imposition of 40 consecutive sentences . . . manifestly unreasonable (excessive) and an abuse of discretion since the trial court did not consider [Vega-Pabon’s] age and/or the likelihood of his release at the time of sentencing?

Vega-Pabon’s Brief at 17.

3 Vega-Pabon and the trial court complied with Pa.R.A.P. 1925.

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In his only issue, Vega-Pabon challenges the discretionary aspects of his

sentence. See Vega Pabon’s Brief at 28-38. There is no absolute right to

challenge the discretionary aspects of a sentence. See Commonwealth v.

Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Before reaching the merits of a

discretionary sentencing claim, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved h[er] issue; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–30 (Pa. Super. 2013)

(citation omitted).

In his post-sentence motion, Vega-Pabon preserved his issue concerning

an excessive sentence and the failure to consider mitigating factors. He filed

a timely appeal and included in his brief a statement of the reasons relied

upon for allowance of appeal. Therefore, we consider whether Vega-Pabon

has raised a substantial question.

Vega-Pabon contends the sentence was excessive and the trial court

failed to properly consider mitigating factors. Vega-Pabon’s Brief at 28-38.

This claim raises a substantial question. See Commonwealth v. Summers,

245 A.3d 686, 692 (Pa. Super. 2021) (concluding a claim that the sentence

was harsh and excessive and trial court failed to consider mitigating factors

raises a substantial question).

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We next consider the merits of Vega-Pabon’s claim mindful of the

following:

Sentencing 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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

When a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing

Code. See Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007);

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). We may

only vacate a sentence within the guidelines where the sentence is “clearly

unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). In addition, when the trial court

has had the benefit of a PSI, we “presume that the sentencing judge was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Lastly, “[l]ack of

remorse is an appropriate sentencing consideration.” Commonwealth v.

Summers, 245 A.3d 686, 695 (Pa. Super. 2021).

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Here, the trial court considered the PSI, the psychosexual evaluation,

the SVP assessment, the victim impact statements, and the sentencing

guidelines. See N.T., 9/20/21, at 38-44, 49.

The court explained:

[t]his is a most troubling case because it deals with an individual who utilized familial bonds, preying upon eight minor victims, including his own biological grandchildren, and as noted in the victim’s statements, the impact that it’s had on the lives of these young people.

Id. at 55-56.

After careful review, we conclude Vega-Pabon’s standard-range

sentences were neither excessive nor clearly unreasonable and discern no

abuse of discretion in sentencing. See, e.g., Moury, 992 A.2d at 171 (holding

a sentence within the standard range of the guidelines is viewed as

appropriate, and the sentence is not unreasonable where the trial court had

the benefit of a PSI and imposed a standard-range sentence); see also

Commonwealth v. Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 2014)

(holding defendant’s standard-range sentences were neither unreasonable nor

excessive where the “record reflects that the [sentencing] court carefully

considered all of the evidence presented at the sentencing hearing”).

The record demonstrates the trial court considered the PSI, Vega-

Pabon’s allocution, the victims’ statements, and the various evaluations in

imposing Vega-Pabon’s sentence. See N.T., 7/24/23, at 49, 55. This is what

the law requires. See, e.g., Commonwealth v. Hardy, 939 A.2d 974, 980

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(Pa. Super. 2007) (rejecting defendant’s challenge to discretionary aspects of

sentence and stating sentencing court is not required “to ignore context and

instead review [the] charges in a vacuum, where only the name of the offense

and corresponding standard range sentence is considered.”).

Moreover, this Court rejects Vega-Pabon’s argument that the trial court

should only have sentenced him on the single most serious charge, rape of a

child, in only one of the eight cases because that sentence would have been

sufficient to ensure he remained in prison for most of the remainder of his life.

See Vega-Pabon’s Brief at 36-37. Vega-Pabon sexually assaulted eight

children and at sentencing showed no remorse, instead claiming the victims

lied. Each of the eight victims deserved justice and to have the trauma

inflicted upon them recognized by the court at sentencing. See Summers,

245 A.3d at 695.

On appeal, Vega-Pabon briefly challenges the court’s imposition of

consecutive sentences. See Vega-Pabon’s Brief at 37-38. However, Vega-

Pabon did not raise a challenge to the consecutive nature of the sentence in

either of his post-sentence motions or in his Rule 1925(b) statement. See

Motion for Reconsideration of Sentence, 9/24/21, at 1-2 (unnumbered);

Motion for Reconsideration of Sentence, 3/3/22, at 1-3; Rule 1925(b)

Statement, 11/13/23, at 7. An appellant waives a challenge to the

discretionary aspects of sentence not raised in a post-sentence motion and

may not raise it for the first time on appeal. See Commonwealth v.

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Bradley, 237 A.3d 1131, 1138-39 (Pa. Super. 2020) (claim waived where not

specifically raised in post-sentence motion); see also Pa.R.A.P. 302(a).

Moreover, claims not raised in a Rule 1925(b) statement are also waived. See

Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Given, 244 A.3d

508, 510 (Pa. Super. 2020).

Even if this Court had jurisdiction to address Vega-Pabon’s unreviewable

claim, he would not be due relief because the trial court had discretion to

impose consecutive sentences. See Commonwealth v. Radecki, 180 A.3d

441, 470 (Pa. Super. 2018) (“Pennsylvania law affords the sentencing court

discretion to impose its sentence concurrently or consecutively to other

sentences” (citation omitted)). We will not disturb consecutive sentences

“unless the aggregate sentence is ‘grossly disparate’ to the defendant’s

conduct, or viscerally appear[s] as patently unreasonable.” Commonwealth

v. Bankes, 286 A.3d 1302, 1310 (Pa. Super. 2022) (affirming imposition of

consecutive standard-range sentences resulting in an aggregate sentence of

fifty to one-hundred and forty years of incarceration, despite Bankes’ entry of

a guilty plea and expression of remorse, for one count of rape of a child, three

counts of rape by forcible compulsion, and two counts of IDSI) (citation and

internal quotation marks omitted). See also Commonwealth v. Lawrence,

313 A.2d 265, 287 (Pa. Super. 2024) (affirming imposition of consecutive

sentences resulting in an aggregate sentence of forty-two to eighty-six years

of incarceration for repeated sexual abuse of a child and reaffirming

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“defendants convicted of multiple criminal offenses are not entitled to a

‘volume discount’ on his multiple convictions by the imposition of concurrent

sentences.” (citations omitted)). Here, Vega-Pabon’s sentence was not

grossly disparate to his sexual predation of eight children under the age of

thirteen, most of whom were family relations, especially considering he

expressed no remorse and continued to accuse the children of lying

subsequent to his jury convictions. Thus, even if Vega-Pabon had preserved

his challenge to the consecutive sentences, we would not disturb the sentence.

As we discern no abuse of discretion by the trial court, Vega-Pabon’s

sentencing issue does not merit relief.

Judgment of sentence affirmed.

Date: 10/29/2024

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