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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWIN VALDEZ,

Appellant No. 263 EDA 2014

Appeal from the Judgment of Sentence Entered January 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002991-2009

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 13, 2015

Edwin Valdez (Appellant) appeals from the judgment of sentence of 

seventeen and one-half to thirty-five years’ incarceration, imposed January 

15, 2014, following a jury trial resulting in his conviction for aggravated 

assault, possession of an instrument of crime (PIC), and criminal 

conspiracy.1 We vacate the judgment of sentence and remand.

We adopt the following statement of facts:

[Appellant] worked as an assistant electrician for Carlos Molina’s 

construction company. [Appellant] knew the complaining 

witness, Benito Bravo, as [Appellant] was a regular customer at 

Mr. Bravo’s grocery store at 1646 North 29th Street. When Mr. 

Bravo sought to have construction work done on the 2nd and 3rd

floors of his store, [Appellant] put him in touch with Mr. Molina. 

A contract was agreed upon and work commenced. [Appellant] 

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1 Respectively, 18 Pa.C.S. §§ 2702(a)(1), 907(b), and 903(a).
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served as the go[-]between for the parties, often collecting 

payments from Mr. Bravo and supervising the construction work 

on behalf of [Mr.] Molina. Sometime later, the work halted for 

lack of proper permits and a dispute arose over the contract. 

Mr. Bravo had paid approximately $60,000 but had complaints 

about the work and its completion, which he raised with both 

[Mr.] Molina and [Appellant]. Mr. Bravo hired an attorney and 

pursued civil legal action against Mr. Molina based upon the 

contract. Mr. Bravo’s attorney sent numerous demand letters to 

Mr. Molina. Mr. Bravo then relayed this information to 

[Appellant], who in turn warned Mr. Bravo against such action 

on numerous occasions, indicating that [Mr.] Molina was 

dangerous. On the night of December 23, 2008, [Appellant] and 

Mr. Bravo spoke on the phone. [Appellant] asked Mr. Bravo if he 

had a Christmas present for him, which Mr. Bravo took as a 

strange threat.

On the morning of December 24, 2008, Mr. Bravo exited his 

house at approximately 7:40 a.m. to go open up his store. He 

was startled to see one man appearing from behind his van. The 

man told Mr. Bravo not to move. Mr. Bravo identified the man 

as [Appellant] by his face and voice. [Appellant] pointed a gun 

at Mr. Bravo. Mr. Bravo closed his eyes in surprise, and 

expecting to be shot, he backed up. He opened his eyes[] and 

saw two other men, whom he was unable to identify, also 

pointing guns at him. Mr. Bravo then pulled his own concealed 

gun, which he was licensed to carry, and heard one of the men 

say, “Shoot, he’s armed!” Upon hearing this, Mr. Bravo rolled to 

the ground to get behind a trashcan. He then heard multiple 

gun shots hit the trash can, and Mr. Bravo was struck twice in 

the process, in the thigh and groin. The men fled the scene. Mr. 

Bravo shouted at the fleeing men and then shouted for help once 

he realized he was wounded.

Mr. Bravo’s wife, Andrea Rodriguez, was equally familiar with 

[Appellant] from seeing him at the store as a customer and from 

his presence during the construction project. Ms. Rodriguez 

witnessed part of the events from the kitchen window where she 

stood as her husband left the house that morning. She saw 

three men pointing guns at her husband. When [Appellant] saw 

her watching from the window approximately 8 feet away, he 

turned and pointed a gun at her. She ran away from the window 

to go call the police, but before she placed the call[,] she heard 

multiple shots. Ms. Rodriguez thought they had killed her 
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husband, but moments later she went outside to find her 

husband alive and writhing on the ground bleeding. The police 

arrived in a few minutes, and Mr. Bravo was transported to the 

hospital by the first officer on the scene. Mr. Bravo identified 

[Appellant] as one of the shooters to this officer after arriving at 

the hospital ... and identified [Appellant] again for the detective 

who later interviewed Mr. Bravo at the hospital. 

While Mr. Bravo was transported to the hospital, Ms. Rodriguez 

remained with their two children at the house. A few hours 

later, while visiting her husband in the emergency room, Ms. 

Rodriguez spoke with the detective and identified [Appellant] as 

one of the shooters.

Trial Court Opinion, 01/30/2015, at 2-4. 

In August 2013, a jury convicted Appellant of the charges set forth 

above.2 Thereafter, in October 2013, the trial court held a sentencing 

hearing. At the sentencing hearing, Appellant’s daughter and pastor 

testified on Appellant’s behalf; the victim, Mr. Bravo, testified on behalf of 

the Commonwealth. See generally Notes of Testimony (N.T. Sentencing), 

10/16/2013. 

Appellant had a prior record score of zero, and his most severe crime, 

aggravated assault (including a deadly weapon enhancement), carried an 

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2

In March 2009, the Commonwealth filed formal charges against Appellant 

for his assault upon Mr. Bravo that also included criminal attempt (murder of 

the first degree), 18 Pa.C.S. § 901(a); simple assault, 18 Pa.C.S. § 2701(a); 

recklessly endangering another person, 18 Pa.C.S. § 2705; and additional 

weapons offenses. See Bill of Information, 3/12/2009. A first jury trial, 

which commenced in February 2012, resulted in a mistrial. See Notes of 

Testimony, 02/17/2012, at 6. A second jury trial commenced in August 

2013. At some point prior to commencement of the second trial, the 

Commonwealth nolle prossed these charges. See Notes of Testimony, 

08/19/2013, at 8; see also Criminal Docket CP-51-CR-0002991-2009 at 6.
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offense gravity score of ten. The sentencing guidelines suggested: (1) forty 

to fifty-four months’ incarceration, plus or minus twelve months, for the 

aggravated assault; (2) restorative sanctions to three months’ incarceration, 

plus or minus three months, for PIC; and (3) thirty to forty-two months’ 

incarceration, plus or minus twelve months, for the conspiracy. See Trial 

Court Opinion at 5-6. 

Nevertheless, following testimony, the court imposed sentence in the 

following manner: (1) for aggravated assault, ten to twenty years’ 

incarceration; (2) for PIC, two and one-half to five years’ incarceration; and 

(3) for conspiracy, five to ten years’ incarceration. The court directed each 

sentence to be served consecutively, for an aggregate sentence of seventeen 

and one-half to thirty-five years.

The court acknowledged the severity of the sentencing, explaining:

What I do know is you were sent there to do a job for Mr. 

[Molina] to take this man out who had filed a lawsuit against 

him. ... [Y]ou knew where he lived and you knew that he held 

cash there and you went there to rob him with two other people 

armed with the full intent of taking him out.

I do mean I believe you would have gone as far as killing him. I 

believe that is how cold your heart is. When you knew he was 

coming down the stairs at 7:00 to go to work, I think you would 

have gone as far as killing him. If it is not for the fact that he 

[was carrying] a weapon, he wouldn’t be sitting here.

...

And I believe when you took him out, death or incapacitation, 

you were going upstairs [into the house] and you were going to 

take out the wife and the kids and anyone else it took to get to 

the money, because you wanted the money for you or Mr. 
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[Molina], I don’t know. But you went there as [an] assault team 

and you went there with weapons of destruction and went there 

to kill or take him out by permanently disabling him for the 

money.

...

This calls for a severe sentence and no mitigation. [Five] to 

[ten] is not enough. You are a man ... who is capable of cold[-] 

blooded murder.

...

Sir, you deserves [sic] every moment of this sentence because 

you went in there to take out [four] bodies one way or another.

N.T. Sentencing at 16-17.

Following imposition of sentence, Appellant challenged the court, 

suggesting that “there is really no evidence to support what you have stated 

with regard to going there to commit one murder much less four.” Id. at 

17. The court responded, stating, “I said one way or the other death or 

incapacitation and I believe he would have done it.” Id.

Appellant timely filed a post-sentence motion, asserting that his 

sentence was excessive because: (1) the court failed to credit evidence of 

mitigation; (2) regarding both the aggravated assault and PIC convictions, 

the court imposed the statutory maximum sentence; (3) regarding the PIC 

conviction, the court failed to consider and/or place on the record the 

sentencing guidelines range; and (4) the reasons articulated by the court 

were based upon speculation. See Motion for Reconsideration of Sentence, 

10/28/2013, at 2. Appellant further asserted that his sentence violated the 
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Eighth and Fourteenth Amendments to the United States Constitution as 

cruel and unusual punishment. Id. The court denied Appellant’s motion. 

See Trial Court Order, 12/17/2013. 

Appellant timely appealed. However, in September 2014, this Court 

dismissed his appeal for failure to file a brief. See Order of Court, 

09/10/2014. Appellant sought and was granted reinstatement of his appeal. 

See Application to Reinstate Appeal, 09/22/2014; Order of Court, 

09/26/2014. Thereafter, Appellant sought remand to the lower court to file 

a Pa.R.A.P. 1925(b) statement nunc pro tunc. See Application for Remand, 

10/28/2014. This Court granted Appellant relief and directed the lower court 

to file a responsive opinion. See Order of Court, 11/14/2014. 

Appellant filed a Rule 1925(b) statement in which he asserted error on 

the following grounds: (1) the court stated inadequate reasons for its 

deviation from the sentencing guidelines; (2) the court violated Appellant’s 

due process rights; and (3) the court erred in denying Appellant’s motion for 

a mistrial based upon the cumulative effects of inappropriate statements and 

actions of the prosecutor.3 See Appellant’s Pa.R.A.P. 1925(b) Statement at 

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3 Appellant has abandoned the third issue raised in his Rule 1925(b) 

statement regarding his motion for a mistrial. See generally Appellant’s 

Brief (stating no question and failing to develop any argument in this 

regard).
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2. The lower court complied with the order of this Court, filing a responsive 

opinion. Accordingly, this matter is now ripe for review.

Appellant raises the following, compound issue:

Did not the lower court err as a matter of law and abuse its 

discretion in imposing a sentence of incarceration totaling 

[seventeen] and one-half to [thirty-five] years[,] inasmuch as 

the sentence was manifestly excessive and unreasonable[;] the 

court failed to adequately consider [A]ppellant’s background[;] 

the court ostensibly punished him for crimes the court believed 

he would have committed, but which were not charged, nor 

proven[;] and the court failed to state sufficiently adequate, 

legal reasons for the grave deviation from the sentencing 

guidelines[;] and was not such an excessive sentence a violation 

of defendant’s right to due process under the Pennsylvania and 

United States Constitutions?

Appellant’s Brief at 3. Essentially, Appellant contends that the lower court 

(1) abused its discretion and (2) violated his right to due process, by 

imposing a manifestly excessive sentence. Id. 

Appellant challenges discretionary aspects of his sentence. See, e.g., 

Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) 

(recognizing that a claim that a sentence is excessive challenges 

discretionary aspects of the sentence). Such appeals “are not guaranteed by 

right.” Commonwealth v. Grimes, 982 A.2d 559, 565 (Pa. Super. 2009). 

It is well-settled that issues challenging the discretionary aspects 

of sentencing must be raised in a post-sentence motion or by 

raising the claim during the sentencing proceedings. Absent 

such efforts, an objection to a discretionary aspect of a sentence 

is waived.

Commonwealth v. Oree, 911 A.2d 169, 172 (Pa. Super. 2006) (citation 

omitted). “This failure is not cured by submitting the challenge in a Rule 
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1925(b) statement.” Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. 

Super. 2003).

Following our review of the record, we note that Appellant failed to 

articulate a due process claim at his sentencing hearing or, thereafter, in his 

post-sentence motion. Its subsequent inclusion in Appellant’s Rule 1925(b) 

statement does not cure these failures. Id. Accordingly, we deem this 

claim waived.4 

This does not end the procedural prerequisites to substantive review.

Pa.R.A.P. 2119(f) requires an appellant to set forth in his brief a 

concise statement of reasons relied upon in support of granting 

allowance of appeal with respect to the discretionary aspects of 

his or her sentence. The concise statement must show that 

there is a substantial question that the sentence imposed was 

not appropriate under the Sentencing Code in order for this 

Court to grant an allowance of appeal. A substantial question 

exists where the appellant presents a plausible argument that 

the sentence violates a provision of the Sentencing Code or is 

contrary to the fundamental norms underlying our sentencing 

scheme. 

Grimes, 982 A.2d at 566 (quotation marks and citations omitted). Whether 

an appellant presents “a substantial question is to be evaluated on a caseby-case basis.” Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. 

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4 Appellant also fails to develop an argument in support of this claim. See

Appellant’s Brief at 15-19. Thus, it is waived for this reason as well. See, 

e.g., Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009) (“[W]here an 

appellate brief fails to provide any discussion of a claim with citation to 

relevant authority or fails to develop the issue in any other meaningful 

fashion capable of review, that claim is waived.”), cert. denied, 562 U.S. 906 

(2010); Pa.R.A.P. 2119(a).
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Super. 2013) (quoting Commonwealth v. Ferguson, 893 A.2d 735, 737 

(Pa. Super. 2006)). 

Appellant complied with Rule 2119(f), including a statement of the 

reasons for allowance of appeal in his brief to this Court. See Appellant’s 

Brief at 9-12. Therein, Appellant purports to raise two substantial questions, 

asserting that the lower court imposed an excessive sentence because (1) it 

failed to consider his rehabilitative needs by disregarding mitigating 

evidence, see id. at 10, 11-12; and (2) it failed to put legitimate reasons on 

the record to support its deviation from the sentencing guidelines. See id.

at 11.

However, the Commonwealth contends that Appellant has waived 

consideration of his claim that the lower court failed to consider his 

rehabilitative needs, noting that Appellant failed to reference this claim in his 

Rule 1925(b) statement. We agree.

Rule 1925(b)(4)(ii) provides, in relevant part, that “[t]he [s]tatement 

shall concisely identify each ruling or error that the appellant intends to 

challenge with sufficient detail to identify all pertinent issues for the judge.” 

Failure to raise an issue in a Rule 1925(b) statement will result in waiver. 

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)); see also 

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (finding 

waiver where Rule 1925(b) statement was too vague). 
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Here, Appellant raised three issues in his Rule 1925(b) statement, 

asserting (1) the court stated inadequate reasons for its deviation from the 

sentencing guidelines; (2) the court violated Appellant’s due process rights; 

and (3) the court erred in denying Appellant’s motion for a mistrial. See

Appellant’s Pa.R.A.P. 1925(b) Statement at 2. Appellant failed to identify his 

contention that the lower court failed to consider his rehabilitative needs. 

This deprived the court of an opportunity to address this issue. Accordingly, 

we deem it waived. Castillo, 888 A.2d at 780.5

Appellant’s remaining claim, that the lower court failed to put 

legitimate reasons on the record to support its deviation from the sentencing 

guidelines, establishes a substantial question. Commonwealth v. Rodda, 

723 A.2d 212, 214 (Pa. Super. 1999) (en banc); Commonwealth v. Hoch, 

936 A.2d 515, 519 (Pa. Super. 2007); Commonwealth v. Hanson, 856 

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5 Absent waiver, we note that Appellant frames his contention as a failure to 

consider his rehabilitative needs, citing 42 Pa.C.S. § 9721(b) (requiring the 

sentencing court to balance “the protection of the public, the gravity of the 

offense as it relates to the impact on the life of the victim and on the 

community, and the rehabilitative needs of the defendant”). However, upon 

closer inspection, it is apparent that Appellant actually contends that the 

court failed to credit certain mitigating facts of record. See Appellant’s Brief 

at 10-11 (suggesting the court discounted testimony from Appellant’s pastor 

introduced as mitigating evidence). This Court has previously determined 

that such claims do not establish a substantial question. Commonwealth 

v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc). 
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A.2d 1254, 1257 (Pa. Super. 2004).6 Because Appellant has raised a 

substantial question, we may proceed to review the merits of his claim.

Appellant contends that his sentence is manifestly excessive and 

unreasonable, citing 42 Pa.C.S. § 9781. According to Appellant, the lower 

court failed to reference legitimate reasons for its departure from the 

sentencing guidelines, instead inferring from the facts adduced at trial that 

Appellant intended to kill Mr. Bravo, Ms. Rodriguez, and their two children in 

order to rob him and settle a business dispute. Thus, Appellant concludes 

that the court punished him for crimes he did not commit.

It is well settled that we review a sentence imposed for an abuse of 

discretion. Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) 

(quoting Commonwealth v. Walls, 926 A.2d 956, 961 (Pa. 2007)). 

Generally, an 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.” Id. (internal quotation marks 

omitted); see also Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. 

Super. 2015) (en banc). However, where a sentencing court imposes a 

sentence outside the sentencing guidelines, our General Assembly has 

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6 The Commonwealth concedes this point. See Commonwealth’s Brief at 10 

(merely addressing the merits of Appellant’s claim).
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directed that we vacate the sentence and remand, if “the sentence is 

unreasonable.” 42 Pa.C.S. § 9781(c)(3). 

Our Supreme Court has noted that “what makes a sentence 

‘unreasonable’ is not defined.” Walls, 926 A.2d at 963. Our evaluation is 

informed by factors set forth in Section 9781(d), including: 

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d); see also Walls, 926 A.2d at 963 (“Indeed, based 

upon the very factors set out in Section 9781(d), it is clear that the General 

Assembly intended the concept of unreasonableness to be inherently a 

circumstance-dependent concept that is flexible in understanding and lacking 

precise definition.”).

This Court has observed that “[a] sentencing court may consider any 

legal factor in determining that a sentence in the aggravated range should 

be imposed.” Commonwealth v. Stewart, 867 A.2d 589, 592-93 (Pa. 

Super. 2005) (emphasis added) (citing Commonwealth v. Duffy, 491 A.2d

230, 233 (Pa. Super. 1985)). However, we have also cautioned that notions 

of fundamental fairness suggest that a defendant should not be sentenced 

for crimes he did not commit, for which he was not convicted, or, in the case 
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of a plea bargain, for crimes nolle prossed. Id. (citing United States v. 

Metz, 470 F.2d 1140, 1143 (3d Cir. 1972), cert. denied, 411 U.S. 919 

(1973)). Certainly, this principle is no less important where a sentencing 

court imposes a sentence beyond the aggravated range.

With these standards in mind, the lower court’s explanation for its 

sentence exhibits an abuse of its discretion. In our view, it was not 

appropriate for the court to sentence Appellant based upon its belief that 

Appellant intended to kill or “take out” not only the victim, but also the 

victim’s wife and children. The facts of record do not support the court’s 

inference.

Of course, this case is quite different from others we have reviewed, in 

which a sentencing court has appreciated the nature and circumstances 

surrounding a criminal act. For example, in Caldwell, a case involving 

aggravated assault and robbery, we affirmed an aggravated range sentence 

where the sentencing court noted the defendant’s lack of concern for 

innocent bystanders. See Caldwell, 117 A.3d at 771 (“But for the grace of 

God that no one was killed.”).7 In Commonwealth v. Miller, 965 A.2d 276 

(Pa. Super. 2009), we affirmed a standard range sentence for third degree 

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7 The aggravated range sentence in Caldwell required a slightly different 

determination. Id. at 775 (Wecht, J., concurring) (noting that “[a] trial 

court abuses its discretion when it orders an aggregate sentence that is 

‘clearly unreasonable’ within the meaning of 42 Pa.C.S. § 9781(c)”) (quoting 

Commonwealth v. Coulverson, 34 A.3d 135, 139 (Pa. Super. 2011)).
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murder where the sentencing court referenced a fire caused by the 

defendant. Id. at 280.8 

Here the lower court imposed a sentence outside the sentencing 

guidelines based upon facts not of record, asserting crimes for which 

Appellant was neither charged nor convicted. Accordingly, the sentence 

imposed was not reasonable.

Sentence vacated. Case remanded for resentencing. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2015

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8

In Miller, the defendant was originally charged with arson; however, the 

charge was nolle prossed pursuant to the defendant’s plea agreement. We 

concluded that “the court’s mere reference” to the fire did not indicate “that 

the court specifically considered the charge of arson and enhanced [the 

appellant’s] sentence based thereon.” Id. By contrast, here, the lower 

court enhanced Appellant’s sentence expressly based upon crimes for which 

he was not charged or convicted.