J-S42037-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GILBERTO CORREA 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2230 EDA 2018

Appeal from the Judgment of Sentence Entered May 25, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0004661-2016

BEFORE: OTT, J., KUNSELMAN, J., and COLINS*, J.

JUDGMENT ORDER BY COLINS, J.: FILED AUGUST 29, 2019

Appellant, Gilberto Correa, appeals from the judgment of sentence of 

20 to 40 years of confinement, which was imposed after he pleaded guilty to 

criminal attempt to commit murder and possessing instruments of crime.1 

We affirm.

At Appellant’s guilty plea hearing on January 16, 2018, the facts 

underlying this appeal were set forth as follows:

[O]n March 24, 2015, a little after midnight, [Appellant] in the 

area of 4700 Whitaker Street . . . in the city and county of 

Philadelphia with the specific intent to kill approached his exgirlfriend Migdy Rivera . . . from behind, placed her against a car 

and demanded that she come back to him. She had previously

broken up with him several months prior. When she refused, he 

then proceeded to stab her. Specifically, [Appellant] with a knife 

placed it through her chin. That knife blade went through her 

tongue to the top of her mouth. He then sliced her on the left and 

____________________________________________

1 18 Pa.C.S. §§ 901(a) and 907(a), respectively.
J-S42037-19

- 2 -

right side of her face, and then, as she’s screaming for help, 

proceeds to – and [to] use her words -- cut her neck. He doesn’t 

slice her neck since, as she describes, the knife wasn’t very sharp 

so he cuts her neck as if he’s cutting chicken is how she described 

it. He was cutting her neck very slowly. . . . [T]wo bystanders 

saw the assault and ran towards where [Appellant] and the victim 

were on the street, and [Appellant] ran away once these two 

bystanders approached. The complainant was seen at Temple 

University Hospital and remained there for nine days.

N.T., 1/16/2018, at 11-12.

Following Appellant’s sentencing on May 25, 2018, Appellant filed a 

motion for reconsideration of sentence on June 4, 2018, which was denied on 

June 26, 2018. On July 24, 2018, Appellant filed this timely direct appeal.2

Appellant now challenges the discretionary aspects of his sentence. See 

Appellant’s Brief at 3, 9-13.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to an appeal as of right. Prior to reaching the 

merits of a discretionary sentencing issue[, w]e conduct a fourpart analysis 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 On August 27, 2018, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) 

within 21 days of the date of the order. Appellant filed his statement of errors 

complained of on appeal on October 9, 2018 – more than three weeks late. 

Nevertheless, the trial court did not find waiver, as there had been an error in 

the service of the order, and the trial entered its opinion on October 26, 2018. 

Trial Court Opinion, filed October 26, 2018, at 2 n.1.
J-S42037-19

- 3 -

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) 

(quotation marks and some citations omitted), reargument denied (July 7, 

2018). In the current case, Appellant filed a timely notice of appeal and 

preserved his issue in a post-sentence motion. However, Appellant’s brief to 

this Court does not contain a separate section with a concise statement of the 

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); 

Appellant has thus waived his challenge to the discretionary aspects of his 

sentence. See Manivannan, 186 A.3d at 489.

Assuming Appellant had preserved this challenge, his claims that the 

trial court “failed to consider mitigating factors, . . . focused solely on the 

seriousness of the crime[,]” and “did not properly consider Appellant’s 

acceptance of responsibility when arriving at the sentence” are belied by the 

record. Appellant’s Brief at 10-11. At sentencing, the trial court stated:

This [c]ourt’s given consideration to the arguments of both 

counsel, the presentence report, the sentencing guidelines, the 

mental health evaluation report, [Appellant]’s allocution, [and] 

the testimony of witnesses . . . [Appellant] does get credit for 

accepting some responsibility. . . . This [c]ourt considers as a 

mitigating factor [Appellant]’s history of substance abuse from 

around 15 years old until when this occurred. . . . This [c]ourt also 

considers as a mitigator [Appellant]’s family support, and this 

[c]ourt takes to heart the pained words of his mother and other 

relatives. . . . This [c]ourt recognizes that [Appellant] is a human 

being as everyone else, and that at some point before this 

happened, he had a good reputation in some communities, being 

peaceful, honest, law-abiding, ethical, hard-working, and humble 

and all kinds of things[.]

N.T., 5/25/2018, at 46-49. In its opinion, the trial court added that “Appellant 

enjoyed the mitigating factors of a lack of a prior record, support from family 
J-S42037-19

- 4 -

and community, and remorse[.]” Trial Court Opinion, filed October 26, 2018, 

at 9. Thus, contrary to Appellant’s argument, the record demonstrates that, 

when sentencing Appellant, the trial court considered mitigating factors, 

including Appellant’s acceptance of responsibility, and did not focus 

exclusively on the seriousness of the crime; the trial court therefore did not 

abuse its discretion when imposing Appellant’s sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/19