J-S38041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOSE ANTONIO VALDES, :

:

Appellant : No. 1665 MDA 2014

Appeal from the Judgment of Sentence entered on August 29, 2014

in the Court of Common Pleas of Perry County,

Criminal Division, No. CP-50-CR-0000244-2012

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 29, 2015

Jose Antonio Valdes (“Valdes”) appeals from the judgment of sentence 

imposed following resentencing for his convictions of two counts each of 

robbery (threat of serious bodily injury), robbery (taking property by force), 

terroristic threats, unlawful restraint, and simple assault, and three counts of 

theft by unlawful taking.1 We affirm.

This Court previously set forth the relevant factual history:

At approximately 8:15 a.m., [on] March 9, 2012, Charlotte 

Schlosman (“Schlosman”) and Mindy Group (“Group”) were 

working in the Dollar General Store in Marysville, Pennsylvania. 

N.T. Trial, 3/28/2013, at 19-20. The first customer of the day, a 

man later identified as Valdes, entered the store and purchased 

a drink. Id. at 23-24, 55. Schlosman recognized Valdes from 

his having shopped in the store on prior occasions. Id. at 24. 

After buying the drink, Valdes left the counter area and walked 

to the door. Id. at 56. Valdes returned to the checkout counter 

 

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii); 3701(a)(1)(v); 2706(a)(1); 3902(a)(1), 

2701(a)(3); 3921(a).
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area, pulled out what appeared to be a black semiautomatic 

handgun, and told Group he wanted the money out of the 

register. Id. at 57. The two women had a difficult time opening 

the cash drawer due to their nerves. Id. at 26, 57. Eventually, 

Schlosman, the assistant manager, used her key to open the 

register. Id. at 26. After taking the money, Valdes ordered the 

two women into the back of the store. Id. at 28. He repeatedly 

asked for the combination to the safe. Id. at 27-28. Valdes 

attempted to tape each woman’s hands behind her back, but

could not because he could not find the beginning of the tape. 

Id. at 31. Eventually, Valdes broke the store phone and took 

each woman’s cell phone and keys and left. Id. at 31-32.

Commonwealth v. Valdes, 105 A.3d 790 (Pa. Super. 2014) (unpublished 

memorandum at 2-3).

Valdes was arrested and charged with numerous offenses. A jury 

found Valdes guilty of the above-mentioned crimes. The trial court 

sentenced Valdes to an aggregate sentence of ten to twenty years in prison.2 

Valdes filed two Post-Sentence Motions, which were denied on May 20, 

2013. 

On July 14, 2014, this Court affirmed the convictions, but vacated the 

sentence based on Alleyne v. United States, 133 S. Ct. 2151 (2013), and 

remanded for resentencing. See Valdes, 105 A.3d 790 (unpublished 

memorandum at 3-15). Upon remand, the trial court resentenced Valdes to 

an aggregate prison term of six to fourteen years. Valdes filed a timely 

Notice of Appeal.

Valdes raises the following issues on appeal: 

 

2 Relevantly, the trial court imposed mandatory minimum sentences under 

42 Pa.C.S.A. § 9712.
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1) Whether the [t]rial court erred when it applied a sentence for 

robbery threat of serious bodily injury[,] as the jury had not 

been asked to conclude that a firearm was present during the 

robbery[,] and without a jury concluding the presence of a 

firearm[,] there is insufficient evidence to establish a threat 

of serious bodily injury[?] 

2) Whether or not the [t]rial [c]ourt erred when it applied a 

sentence for (2) counts of robbery threat of serious bodily 

injury as the harm occurred in one singular event, at one 

singular time, at one singular location and[,] therefore[,] 

should merge[?]

3) Whether or not the [t]rial [c]ourt abused its discretion by 

sentencing [Valdes] at the top end of the sentencing 

guidelines when the evidence demonstrates that [Valdes] 

was a model prisoner who has successfully availed himself of 

available measures to rehabilitate[,] and has a prior record 

score of 0[?] 

4) Whether or not the [trial] court committed reversible error 

by denying the Post-Sentence Motion[s] filed of record on 

September 5, 2014[?]

Brief for Appellant at 5-6 (some capitalization omitted).

In his first claim, Valdes asserts that the evidence was insufficient to 

support his robbery conviction. Id. at 12. Valdes argues that the jury had 

not been asked to conclude that a firearm was present during the robbery. 

Id. Valdes contends that without a jury finding the presence of a firearm, 

there is insufficient evidence to establish a threat of serious bodily injury. 

Id. at 13. 

Since Valdes is on direct appeal following remand for the limited 

purpose of resentencing, we may not reach the merits of his first challenge. 

See Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002) 
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(stating that following remand for resentencing, the only issues subject to 

appellate scrutiny are challenges to the sentence imposed on remand); 

Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super. 2001) (stating 

that “where a case is remanded to resolve a limited issue, only matters 

related to the issue on remand may be appealed”).3

In his second claim, Valdes argues that the trial court erred when it 

imposed sentences on two counts of robbery (threat of serious bodily injury) 

because the harm occurred in “one singular event, at one singular time, and 

at one singular location.” Brief for Appellant at 13. Valdes contends that the 

sentences for each count should merge. Id. Valdes contends that the 

doctrine of merger should be applied equally when a defendant is convicted 

of multiple crimes arising out of the same act, where all the crimes are equal 

in degree. Id.

“A claim that the trial court imposed an illegal sentence by failing to 

merge sentences is a question of law. Accordingly, our standard of review is 

plenary." Commonwealth v. Williams, 958 A.2d 522, 527 (Pa. Super. 

2008). Further, the merger doctrine provides that “[n]o crimes shall merge 

for sentencing purposes unless the crimes arise from a single criminal act 

 

3 Even if we could address the merits of his claim, the above facts were 

sufficient to support Valdes’s robbery convictions. Further, contrary to 

Valdes’s argument, the presence of a firearm is not a necessary element for 

robbery (threat of serious bodily injury). Rather, the jury must only find 

that Valdes threatened the two store clerks or intentionally placed them in 

fear of immediate serious bodily injury to sustain his conviction. See 18 

Pa.C.S.A. § 3701(a)(1)(ii).
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and all of the statutory elements of the other offense are included in the 

statutory elements of the other offense.” 42 Pa.C.S.A. § 9765. 

Here, we conclude that two distinct criminal acts resulted because 

Valdes threatened Schlosman and Group separately by pointing his gun at 

each of them and demanding money. Accordingly, the trial court properly 

sentenced Valdes on two counts of robbery (threat of serious bodily injury). 

See Commonwealth v. Rozplochi, 561 A.2d 25, 30 (Pa. Super. 1989) 

(stating that “where a defendant threatens to inflict serious bodily injury on 

two employees in order to effectuate a theft of property from their common 

employer, the defendant may be convicted of two counts of robbery.”).

In his third claim, Valdes challenges the discretionary aspects of his 

sentence. Brief for Appellant at 14-15. Valdes asserts that his sentence is 

manifestly excessive where Valdes has demonstrated himself to be a model 

prisoner, rehabilitated himself, and had a prior record score of zero. Id. at 

14. Valdes contends that the trial court did not properly account for the 

protection of the public and his rehabilitation needs. Id. at 14-15.

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162, 

170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary 

sentencing issue,

[this Court conducts] 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 
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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).

Moury, 992 A.2d at 170.

Here, Valdes has failed to include the required concise statement 

under Pa.R.A.P. 2119(f), and the Commonwealth objects to this omission. 

Brief for Commonwealth at 5; see also Commonwealth v. Robinson, 931 

A.2d 15, 19 (Pa. Super. 2007) (stating that if a defendant fails to include an 

issue in his Rule 2119(f) statement, and the Commonwealth objects, then 

the issue is waived and this Court may not review the claim). Thus, we 

cannot address Valdes’s sentencing claim.4 

In his fourth issue, Valdes baldly claims that his Post-Sentence Motions 

were improperly denied. Brief for Appellant at 15. Valdes merely 

incorporates by reference his prior sentencing claims. It is well settled that 

 

4 Even if we addressed his sentencing claim, we would conclude that the trial 

court did not abuse its discretion in imposing the sentence upon remand. 

See Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010) 

(stating that “[s]entencing is vested in the discretion of the trial court, and 

will not be disturbed absent a manifest abuse of that discretion.”). Here, the 

trial court was informed by a pre-sentence investigation report. See Trial 

Court Opinion, 12/22/14, at 9-10; see also Downing, 990 A.2d at 794 

(stating that “where the trial court is informed by a pre-sentence report, it is 

presumed that the court is aware of all appropriate sentencing factors and 

considerations, and that where the court has been so informed, its discretion 

should not be disturbed.”). The trial court also stated that Valdes’s actions 

were “cold and calculating” based on the video footage and the victims were 

clearly terrified by the incident. Id. at 10. The trial court also mentioned 

Valdes’s drug addiction and that the rehabilitation efforts should continue in 

prison. Id. Thus, the trial court did not abuse its discretion in imposing the 

sentence.
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incorporation by reference “is an unacceptable manner of appellate 

advocacy[.]” Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011). 

Thus, this claim is waived. Id. at 343.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/29/2015