J-S04040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NELSON OMAR LABOY-PIRELA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1139 EDA 2023

Appeal from the Amended Judgment of Sentence Entered May 1, 2023

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

No(s): CP-39-CR-0003286-2022

BEFORE: BOWES, J., STABILE, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED APRIL 17, 2024

Nelson Omar Laboy-Pirela (“Laboy-Pirela”) appeals from the amended 

judgment of sentence imposed following his guilty plea to, inter alia, fleeing 

or attempting to elude an officer.

1 We affirm.

In March 2023, pursuant to an open plea agreement, Laboy-Pirela 

entered a guilty plea to the above offense, which stemmed from an incident 

where he fled from a traffic stop. Laboy-Pirela agreed to the following facts 

at the guilty plea hearing:

. . . On July 15th of last year, at approximately 3:53 p.m., Trooper 

Patrick McMillan was on routine patrol . . . He was traveling in the 

left lane when he observed a white in color Toyota Corolla in front 

of his patrol vehicle. He witnessed a clear bottle being thrown 

from the passenger side window onto the roadway. He activated 

his emergency lights and sirens to initiate a traffic stop. The 

Toyota Corolla stopped on the shoulder . . . The trooper exited 

his vehicle and approached the Toyota on the passenger side. As 

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1 See 75 Pa.C.S.A. § 3733(a).
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he got close to the Toyota, he observed the brake lights get 

activated, which based on the trooper’s experience, training[,]

and education[,] was an indicator that the operator may attempt 

to flee from the stop. The Toyota Corolla then sped off at a high 

rate of speed.

The trooper returned to his patrol unit and proceeded to 

pursue the fleeing car. As the Toyota Corolla approached [an]

intersection . . . , the operator[, Laboy-Pirela,] lost control of the 

vehicle, hit a raised traffic island in the intersection, then turned 

right into oncoming traffic where it came to an uncontrolled 

position of final rest . . .

Both the passenger and [Laboy-Pirela] fled the vehicle. 

[Laboy-Pirela] ran toward a cornfield . . . The trooper pursued 

[Laboy-Pirela]. The trooper entered the cornfield and gave chase 

while instructing [Laboy-Pirela] to stop. [Laboy-Pirela] kept going 

until he fell on the ground due to the thick vegetation.

The trooper then got on top of [Laboy-Pirela] and demanded 

for [him] to put his hands behind his back several times, which he 

refused. [Laboy-Pirela] was face-down, and the trooper was 

straddling his back. He was repeatedly told to put his hands 

behind his back, struggled and did not comply. The trooper 

indicated to him that he would be tased, and, in fact, he was 

eventually tased after warnings[, a]t which time, he complied with 

the trooper’s commands and was taken into custody.

N.T., 3/2/23, at 8-10. 

Pursuant to the open plea agreement, the Commonwealth dismissed 

four other charges and agreed that the sentences on the remaining charges 

to which Laboy-Pirela pleaded guilty would run concurrently to one another. 

The trial court ordered that a presentence investigation report (“PSI”) be 

prepared in advance of the sentencing hearing. 

On April 14, 2023, the trial court conducted a sentencing hearing. At 

the conclusion of the hearing, the trial court imposed a sentence of three to 
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seven years in prison for fleeing or attempting to elude an officer, which fell 

within the aggravated range of the sentencing guidelines.

2

Laboy-Pirela filed a post-sentence motion to reconsider sentence

arguing, inter alia, that a lesser sentence would better achieve the goals of 

rehabilitation and protection of the community. The trial court denied the 

motion to reconsider sentence.

3 Laboy-Pirela then filed a timely notice of 

appeal, and both he and the trial court complied with Pa.R.A.P. 1925.

Laboy-Pirela raises the following issue for our review:

Whether the trial court abused its discretion in imposing a 

manifestly excessive and unreasonable sentence which has a 

minimum sentence that is four (4) times higher than the 

sentencing guideline range as applied to [Laboy-Pirela] when the 

court failed to consider any significant mitigating factors, failed to 

apply, and review all the necessary factors as set forth in 42 

Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c) and (d), or 

otherwise failed to set forth appropriate reasons for its radical 

deviation from the standard sentencing ranges?

Laboy-Pirela’s Brief at 5 (unnecessary capitalization omitted).

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2 The trial court also found Laboy-Pirela eligible for the Recidivism Risk 

Reduction Initiative (“RRRI”) making his minimum sentence for fleeing and 

attempting to elude an officer twenty-seven months in prison, pending 

successful completion of the program.

3

In its sentencing order, the trial court imposed concurrent sentences for the 

remaining convictions, which included driving with a suspended license. In 

his post-sentence motion, Laboy-Pirela additionally claimed that the trial court 

imposed an illegal sentence for that conviction. On May 1, 2023 the trial court 

granted that portion of the post-sentence motion, partially vacated the 

judgment of sentence, and resentenced Laboy-Pirela for driving with a 

suspended license to a fine of $1,000.
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Laboy-Pirela’s issue presents a challenge to the discretionary aspects of 

his sentence. We consider a challenge to the discretionary aspects of sentence 

to be a petition for permission to appeal, as the right to pursue such a claim 

is not absolute. See Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. 

Super. 2010). Before we reach the merits of a challenge to the discretionary 

aspects of sentence, this Court must conduct a four-part analysis determining:

(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, [see] 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, [see] 42 Pa.C.S.A. § 

9781(b).

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

omitted).

In the instant case, Laboy-Pirela filed a post-sentence motion to 

reconsider and modify his sentence, a timely notice of appeal, and included in 

his brief a Rule 2119(f) statement. However, we must initially determine 

whether the issues he raises in his Rule 2119(f) statement were properly 

preserved for this Court’s review.

In his Rule 2119(f) statement, Laboy-Pirela purported to raise the 

following issues: 

[]Laboy-Pirela is requesting the review of his sentence for 

the fleeing and eluding charge based upon his belief that the 

sentencing court abused its discretion when it imposed a harsh 

and excessive sentence contrary to the fundamental norms of the 

sentencing guidelines. The sentence imposed was nearly the 

maximum legally allowable sentence and was more than twice the 
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standard sentencing range as applied to []Laboy-Pirela. The 

deviation from the guideline range must be supported by 

appropriate and factually justifiable reasons and the defendant 

does not believe that the court presented such justification.

Laboy-Pirela’s Brief at 9.

Our review of Laboy-Pirela’s post-sentence motion to reconsider and 

modify his sentence discloses that he did not raise a claim that the sentencing 

court failed to adequately state the reasons for his sentence on the record. 

See Post-Sentence Motion, 4/21/23, at unnumbered 1-5. The sentencing 

hearing transcript further discloses that Laboy-Pirela did not raise this issue 

at the time of sentencing. See N.T., 4/14/23, at 14-18. Thus, Laboy-Pirela 

did not give the sentencing judge an opportunity to reconsider or modify his 

sentence on this basis. See Commonwealth v. Mann, 820 A.2d 788, 794 

(Pa. Super. 2003). Accordingly, this issue is waived.4 See id.; see also

Commonwealth v. Reeves, 778 A.2d 691, 692-93 (Pa. Super. 2001) 

(holding that, by failing to raise the specific claim that the trial court failed to 

state reasons for sentence on the record in post-sentence motion, the trial 

court was deprived of opportunity to consider claim and thus the claim was 

waived on appeal).

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4 We note that, even if Laboy-Pirela had preserved this issue for our review, 

we would have concluded that it lacked merit, as the record reflects that the 

trial court provided a statement of reasons for Laboy-Pirela’s sentence on the 

record at the time of sentencing, including the danger to bystanders he caused 

while fleeing Trooper McMillan, and his lengthy criminal record, which includes 

an escalating pattern of dangerous offenses. See N.T., 4/14/23, at 12-16.
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We next consider the remaining claim raised in Laboy-Pirela’s Rule 

2119(f) statement, namely, that his sentence for the offense of fleeing or 

attempting to elude an officer was harsh and excessive. Laboy-Pirela did not 

explicitly claim that his sentence was either harsh or excessive in his postsentence motion. Indeed, the only statement he made in the post-sentence 

motion which relates in any manner to the length of his sentence was his 

“belie[f] . . . that a lesser sentence would both protect the community and 

allow for adequate rehabilitation.” See Post-Sentence Motion, 4/21/23, at 

unnumbered 2. The remainder of the post-sentence motion concerned LaboyPirela’s belief that he had expressed true remorse for his crimes, had taken 

substantial steps to rehabilitate himself, and wished to be made eligible for 

the state drug treatment program. See id. at 2-3. 

Nevertheless, we can infer from the scant statements made in the postsentence motion that Laboy-Pirela sought to challenge the length of his 

sentence. Accordingly, as he has complied with the technical requirements to 

challenge the discretionary aspects of his sentence for this limited 

discretionary sentencing claim, we will review Laboy-Pirela’s Rule 2119(f) 

statement to determine whether he has presented a substantial question for 

our review. 

We determine what constitutes a substantial question on a case-by-case 

basis. See Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012). 

A substantial question exists “only when the appellant advances a colorable 
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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.” Id. 

A claim that a sentence is excessive, even if it is within the statutory 

limits, can raise a substantial question for appellate review. See 

Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002). However, a 

bald allegation of excessiveness is insufficient to raise a substantial question. 

See id. at 627. Instead, an appellant making an excessiveness claim raises 

a substantial question when he sufficiently articulates either: (1) the manner 

in which the sentence violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code; or (2) a particular fundamental norm 

underlying the sentencing process. See Mouzon, 812 A.2d at 624; see also 

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en 

banc). To meet this sufficiency requirement:

[T]he Rule 2119(f) statement must specify where the 

sentence falls in relation to the sentencing guidelines and what 

particular provision of the Code is violated (e.g., the sentence is 

outside the guidelines and the court did not offer any reasons 

either on the record or in writing, or double-counted factors 

already considered). Similarly, the Rule 2119(f) statement must 

specify what fundamental norm the sentence violates and the 

manner in which it violates that norm (e.g., the sentence is 

unreasonable or the result of prejudice because it is 500 percent 

greater than the extreme end of the aggravated range). If the 

Rule 2119(f) statement meets these requirements, we can decide 

whether a substantial question exists. 

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).
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In his Rule 2119(f) statement, as set forth above, Laboy-Pirela did not 

specify the particular provision of the Sentencing Code that he contends was 

violated. Nor did he specify the particular fundamental norm that the sentence 

purportedly violates and the manner in which the sentence violates that norm.

Instead, he vaguely claimed that his sentence is “contrary to the fundamental 

norms of the sentencing guidelines” and that “[t]he sentence imposed was 

nearly the maximum legally allowable sentence and was more than twice the 

standard sentencing range.” Laboy-Pirela’s Brief at 9. Based on these 

statements, we conclude that Laboy-Pirela’s Rule 2119(f) statement amounts 

to a bald assertion that his sentence was excessive. See Commonwealth v. 

Fisher, 47 A.3d 155, 159 (Pa. Super. 2012) (finding no substantial question 

presented where appellant merely claimed the sentence was “manifestly 

unreasonable . . . in excess of the guidelines without sufficient justification”); 

see also Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa. Super. 

2003) (finding no substantial question presented where appellant merely 

claimed the sentence was unreasonable and resulted in prejudice because of 

the extreme end of the sentencing ranges). Accordingly, we decline to review 

the merits of Laboy-Pirela’s discretionary sentencing claim. 

Judgment of sentence affirmed.
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Date: 4/17/2024