J-S24044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DANIEL CASTRO-JIMENEZ

Appellant No. 1771 MDA 2015

Appeal from the Judgment of Sentence August 28, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0000411-2015;

CP-36-CR-0005443-2014

BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 12, 2016

Appellant, Daniel Castro-Jimenez, appeals from the judgment of 

sentence entered in the Lancaster County Court of Common Pleas, following 

his open guilty plea to two (2) counts of burglary and one (1) count each of 

invasion of privacy, criminal trespass, simple assault, theft by unlawful 

taking or disposition, and theft of property lost, mislaid, or delivered by 

mistake.1 We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

On July 9, 2014, Appellant entered the home of one of the victims (“Victim 

____________________________________________

1 18 Pa.C.S.A. §§ 3502(a)(1), 7507.1(a)(1), 3503(a)(1), 2701(a)(1), 

3921(a), 3924, respectively. 
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1”) without permission. Victim 1 woke up and saw Appellant standing near 

her bed. Appellant began to remove his belt and told Victim 1, “I’ve been 

waiting for you.” Victim 1 screamed, at which point Appellant punched 

Victim 1 in the face and took $69.00 from her purse before fleeing. In a 

separate incident involving a different female victim (“Victim 2”), Appellant 

found a set of keys that belonged to Victim 2 and used them to enter her 

apartment. Approximately three weeks later, on October 29, 2014, 

Appellant entered Victim 2’s apartment without permission again and 

watched her take a shower. The Commonwealth charged Appellant at 

docket No. CP-36-CR-0000411-2015 with burglary, simple assault, and theft 

by unlawful taking in connection with the incident on July 9, 2014, involving 

Victim 1. At docket No. CP-36-CR-0005443-2014, the Commonwealth 

charged Appellant with burglary, criminal trespass, invasion of privacy, and 

theft of property lost, mislaid, or delivered by mistake, in connection with 

the October 29, 2014 incident involving Victim 2. 

Appellant pled guilty to all charges on June 16, 2015. The court 

sentenced Appellant on August 28, 2015, to consecutive terms of three (3) 

to ten (10) years’ incarceration for each of the two burglary counts, one (1) 

to (2) years’ incarceration for theft of property lost, mislaid, or delivered by 

mistake, and one (1) to two (2) years’ incarceration for simple assault. The 

court merged the remaining charges for sentencing. Thus, Appellant 

received an aggregate sentence of eight (8) to twenty-four (24) years’ 
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incarceration. Appellant filed a timely post-sentence motion on September 

8, 2015 (the day after Labor Day). The court denied the post-sentence 

motion on September 10, 2015. Appellant filed a timely notice of appeal on 

October 9, 2015. The court ordered Appellant to file a concise statement of 

errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely 

complied. 

Appellant raises the following issues for our review:

WAS THE SENTENCE IMPOSED FOR COUNT ONE ON 

DOCKET 5443-2014, BURGLARY, AND COUNT ONE ON 

DOCKET 411-2015, BURGLARY, SO MANIFESTLY 

EXCESSIVE AS TO CONSTITUTE TOO SEVERE A 

PUNISHMENT WHERE THE [COURT] SENTENCED IN THE 

AGGRAVATED RANGE OF THE SENTENCING GUIDELINES 

BASED ON THE INADEQUATE REASONING THAT THE 

SENTENCING GUIDELINES CONTEMPLATE A BURGLARY 

WHERE THE INTENDED CRIME IS THEFT, AS OPPOSED TO 

THE CRIMES PLEADED TO IN THE INSTANT CASE?

WAS THE SENTENCE IMPOSED FOR COUNT FOUR ON 

DOCKET 5443-2014, THEFT OF PROPERTY LOST, SO 

MANIFESTLY EXCESSIVE AS TO CONSTITUTE TOO SEVERE 

A PUNISHMENT WHEN THE SENTENCING GUIDELINES 

RECOMMEND A SENTENCE OF RESTORATIVE SANCTIONS 

(RS) AND THE SENTENCE IMPOSED WAS ONE TO TWO 

YEARS IN A STATE CORRECTIONAL INSTITUTE BASED ON 

THE INADEQUATE REASONING BY THE [COURT] THAT THE 

MISLAID PROPERTY WAS USED TO COMMIT A SEPARATE 

OFFENSE FOR WHICH...APPELLANT ALSO PLED GUILTY 

AND ON WHICH APPELLANT WAS SENTENCED 

SEPARATELY?

WAS THE SENTENCE IMPOSED FOR COUNT THREE ON 

DOCKET 411-2015, SIMPLE ASSAULT, ILLEGAL, AS THIS 

CHARGE SHOULD HAVE MERGED WITH COUNT ONE, 

BURGLARY?
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(Appellant’s Brief at 6-7). 

In issues one and two, Appellant argues his sentences for burglary and 

theft of property lost were manifestly excessive. Appellant asserts the court 

focused exclusively on the seriousness of the offenses, i.e., the sexual 

connotations of the offenses, when it imposed sentences in or above the 

aggravated range of the sentencing guidelines. Appellant contends the 

court’s reasoning was inadequate because the burglary statute and 

sentencing guidelines do not contemplate an increased penalty for burglary 

if the intended crime is something other than theft. Appellant further claims 

no facts of record supported the court’s determination that at the time 

Appellant took Victim 2’s keys, he intended to use them to commit a more 

serious offense. Appellant emphasizes he has no prior record, has been 

continuously employed since 2005, pled guilty to his crimes, and was not 

found to be a sexually violent predator. Appellant concludes he is entitled to 

resentencing on his convictions for burglary and theft of property lost. As 

presented, Appellant challenges the discretionary aspects of his sentence. 

See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating 

claim that sentence is manifestly excessive challenges discretionary aspects 

of sentencing); Commonwealth v. Downing, 990 A.2d 788 (Pa.Super. 

2010) (stating claim that court relied on improper factor when imposing 

sentence implicates discretionary aspects of sentencing); Commonwealth 

v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 
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653, 676 A.2d 1195 (1996) (stating claim that sentencing court failed to 

consider or did not adequately consider certain factors challenges

discretionary aspects of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 

910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary 

sentencing issue: 

[W]e conduct a four-part 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). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating a substantial question as to the 

appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 

2119(f). “The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when 
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the appellant advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent 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 (quoting 

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), 

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a 

sentence is manifestly excessive might raise a substantial question if the 

appellant’s Rule 2119(f) statement sufficiently articulates the manner in 

which the sentence imposed violates a specific provision of the Sentencing 

Code or the norms underlying the sentencing process. Mouzon, supra at 

435, 812 A.2d at 627. A claim that the court relied on an improper factor 

during sentencing raises a substantial question. Downing, supra. 

Generally, “[a]n allegation that a sentencing court failed to consider or did 

not adequately consider certain factors does not raise a substantial question 

that the sentence was inappropriate.” Cruz-Centeno, supra at 545. 

“[A] trial court judge has wide discretion in sentencing and can, on the 

appropriate record and for the appropriate reasons, consider any legal factor 

in imposing a sentence in the aggravated range.” Commonwealth v. 

Hardy, 939 A.2d 974, 980 (Pa.Super. 2007). On appeal, this Court will not 

disturb the judgment of the sentencing court absent an abuse of discretion. 

Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006). “An abuse of 

discretion may not be found merely because an appellate court might have 
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reached a different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” Commonwealth v. Walls, 592 Pa. 

557, 564, 926 A.2d 957, 961 (2007). 

Instantly, in his Rule 1925(b) statement, Appellant asserted (1) his 

aggregate sentence was manifestly excessive because it was inconsistent 

with the protection of the public, the gravity of the offense, and Appellant’s 

rehabilitative needs, and (2) the trial court failed to impose an individualized 

sentence that took into account Appellant’s personal circumstances. 

Appellant failed to raise his claim that when the court imposed sentence, it 

improperly relied on a finding that the burglaries and theft of Victim 2’s keys 

had sexual connotations. Therefore, that claim is waived. See

Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating 

any issued not raised in Rule 1925(b) statement is waived for appellate 

review). 

Moreover, when imposing sentence, the court was free to consider the 

sexual connotations inherent in Appellant’s burglaries. With respect to theft 

of property lost conviction, the record supported the court’s determination 

that Appellant stole Victim 2’s keys with the intent to enter her home and 

commit a more serious crime. The factual basis for Appellant’s guilty plea 

established Appellant found the keys and used them to enter Victim 2’s 

apartment with the intent to commit a crime. Appellant made no effort to 
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return the keys despite knowing they belonged to Victim 2. Instead, 

Appellant held onto the keys for three weeks and then used them to enter 

Victim 2’s apartment a second time to watch her in the shower. Thus, 

Appellant’s claim would merit no relief even if he had properly preserved it. 

See Hardy, supra. 

Appellant also waived his claim that the court imposed an excessive 

sentence by focusing solely on the seriousness of the crimes because 

Appellant failed to raise it in his post-sentence motion or at sentencing. See 

Evans, supra. Moreover, the court had the benefit of a presentence 

investigation (“PSI”) report, so we can assume the court was aware of the 

relevant information regarding Appellant’s character and weighed those 

considerations along with mitigating factors. See Commonwealth v. 

Devers, 519 Pa. 88, 546 A.2d 12 (1988). Further, the court also remarked 

at sentencing:

I’ve reviewed the [PSI report] myself, and it’s relatively 

vanilla. There’s nothing bad in there. And, you know, 

[Appellant has] been working for the last several years. 

So, I mean, there are some things for him, nothing that 

jumps out one way or the other. 

(N.T. Sentencing, 8/28/15, at 3). Thus, the record belies Appellant’s claim 

that the court failed to consider factors other than the gravity of the offense. 

Had they been properly preserved, Appellant’s discretionary sentencing 

challenges would not entitle him to relief. 
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In his third issue, Appellant argues he burglarized Victim 1’s residence 

with the intent to commit both the theft and the simple assault, so the theft 

and simple assault convictions should have merged with burglary for 

sentencing. Appellant contends the court improperly noted Appellant might 

have had other criminal intentions of a sexual nature when he entered 

Victim 1’s home, even though Appellant pled guilty only to burglary, simple 

assault, and theft by unlawful taking. Appellant concludes the court properly 

merged the theft offense with burglary but erred when it sentenced him 

separately on the simple assault conviction. We disagree. 

“A claim that crimes should have merged for sentencing purposes 

raises a challenge to the legality of the sentence. Therefore, our standard of 

review is de novo and our scope of review is plenary.” Commonwealth v. 

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730, 

70 A.3d 810 (2013) (citing Commonwealth v. Allen, 24 A.3d 1058, 1062 

(Pa.Super. 2011)). The burglary statute states in relevant part:

§ 3502. Burglary

(a) Offense defined.—A person commits the offense of 

burglary if, with the intent to commit a crime therein, the 

person:

(1) enters a building or occupied structure, or 

separately secured or occupied portion thereof that is 

adapted for overnight accommodations in which at the 

time of the offense any person is present[.]

* * *
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(d) Multiple convictions.—A person may not be 

sentenced both for burglary and for the offense which it 

was his intent to commit after the burglarious entry or for 

an attempt to commit that offense, unless the additional 

offense constitutes a felony of the first or second degree.

18 Pa.C.S.A. § 3502. “The Commonwealth is not required to allege or prove 

what particular crime a defendant intended to commit after his forcible entry 

into the private residence.” Commonwealth v. Lambert, 795 A.2d 1010, 

1022 (Pa.Super. 2002) (en banc), appeal denied, 569 Pa. 701, 805 A.2d 521 

(2002). “The intent to commit a crime after entry may be inferred from the 

circumstances surrounding the incident.” Id. 

Instantly, Appellant pled guilty to burglary, theft by unlawful taking, 

and simple assault in connection with the incident involving Victim 1. The 

theft and simple assault convictions were graded as second-degree 

misdemeanors. At the guilty plea hearing, the Commonwealth set forth the 

factual basis for the plea, which stated that Appellant unlawfully entered the 

residence of Victim 1, assaulted her by punching her in the face, and took 

$69.00 from her purse. The factual basis for the plea was silent regarding 

what specific crime(s) Appellant had intended to commit when he entered 

Victim 1’s residence. In light of Section 3502(d), the court then had to 

determine what Appellant intended to do when he entered the residence. 

At sentencing, the Commonwealth placed the facts of the incident in 

broader context, explaining that Victim 1 awoke to find Appellant standing 

near her bed; Appellant told Victim 1 he had been waiting for her and 
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started to take off his belt. Appellant lodged no objection to the 

Commonwealth’s recitation of facts, which amplified rather than contradicted 

anything established during Appellant’s plea. Further, these facts were 

consistent with the affidavit of probable cause supporting the criminal 

complaint. The affidavit stated Victim 1 screamed after Appellant said, “I’ve 

been waiting for you” and began to remove his belt, at which point Appellant 

suddenly punched Victim 1 in the face repeatedly and fled with her money. 

The court sentenced Appellant separately on the simple assault count, 

finding that Appellant had not formed the intent to punch Victim 1 in the 

face, when he first entered Victim 1’s residence. Appellant’s initial words 

and actions reasonably suggested his intent to commit a different offense. 

The simple assault (face punching) occurred suddenly as a result of Victim 

1’s scream. The record supports this determination. 

Moreover, the court did merge Appellant’s convictions for burglary and 

theft by unlawful taking, concluding Appellant most likely intended to 

commit the theft offense when he entered Victim 1’s home. The record 

supports this determination as well. Nevertheless, the court was not 

compelled to find Appellant also intended to commit the simple assault at 

the time of entry. Based on the foregoing, Appellant’s sentence for simple 

assault was lawful. See 18 Pa.C.S.A. § 3502(d); Lambert, supra. 

Accordingly, we affirm. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2016