J-S43013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARMELO RIVERA, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 823 MDA 2023

Appeal from the Judgment of Sentence Entered September 9, 2021

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

No(s): CP-06-CR-0002192-2020

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 8, 2024

Carmelo Rivera, Jr. appeals from the judgment of sentence imposed on 

his convictions for robbery and related charges. Rivera challenges the 

sufficiency and weight of the evidence and raises a discretionary sentencing 

claim. We affirm.

The court summarized the facts presented at the jury trial as follows.

On September 23, 2019, at approximately 2am [sic], Angel 

Torres, along with his girlfriend, Reyni Meliton, left the Rancho 

Merengue club located on Franklin Street, near the intersection

with Orange Street, in the city of Reading, Berks County, PA and 

began the walk to his car. An armed masked man, in long pants 

and a hoodie, ran up to him, directed him not to move and [to] 

be quiet. At that time, the man removed Mr. Torres’ designer 

cross-body handbag, containing his wallet with $700 in cash inside 

and designer sunglasses. The man also removed the watch from

his wrist. The assailant returned Mr. Torres’ wallet with his 

identification and keys.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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As the robbery was occurring, a black Infiniti pulled up next to 

them. The driver was not wearing a mask (and was later identified 

as Jason Myers). He exited the car. Henry Jiminez was also 

walking down Franklin Street at the time. He testified that he 

turned and suddenly was confronted by a masked man with a gun. 

While he struggled to push the gun away, he was struck on his 

head with something hard. Mr. Torres was watching the assault of 

Mr. Jiminez and described Mr. Jiminez as being pistol-whipped. 

After Mr. Jiminez fell to the ground because of the blow to the 

head, he was kicked by the assailant and the driver of the car. The 

two men rummaged in his pockets, taking approximately $400 in 

cash, [a] phone, [a] watch and [a] belt and then ran away on 

Orange Street. As a result of the attack, Mr. Jiminez suffered a 

fractured skull, a concussion, a broken finger, and needed a blood 

transfusion.

Police were dispatched and found the black Infiniti which was still 

running. The black Infiniti was approximately a half block from the 

club. In the cup holder was a live shell casing and a white hat with 

a cell phone underneath it on the front passenger seat. A person 

who was standing in front of the Infiniti told police, upon arrival, 

that the men ran down Orange Street and that one of them was 

wearing a red sweatshirt. Officer Morrison proceeded down 

Orange Street and saw two people mid-way down the block, one 

of whom was wearing a red sweatshirt. As he pursued, he heard 

two-to-three-gun shots coming from the area of Orange and 

Chestnut Street. Surveillance video footage obtained from the 

Southwest Middle school showed the second suspect (previously 

the masked suspect) raising his hand followed by two light flashes, 

purported to be muzzle flashes. Two shell casings were obtained 

from the area where these two light flashes occurred. The shell 

casings found on the street were of the same type and caliber as

those obtained from the black Infiniti. Surveillance video was 

obtained from 116 Orange Street which showed one of two 

running persons throw an object in the air and land on the ground. 

A mask was recovered in front of 114 Orange Street. In the 100 

block of Orange Street, a ski mask was recovered. DNA was 

obtained from the mask showing that [Rivera] was main 

contributor to the DNA profile recovered from the mask. However, 

there were three contributors to the DNA profile. 

Mr. Myers’ probation officer identified Mr. Myers in a picture of two 

men (admitted as Commonwealth Exhibit 7). The photo was 

obtained on Facebook from [Rivera’s] public Facebook page. He 

also established that Mr. Myers’ known vehicle was a black Infiniti,
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although he was not the registered owner. The probation officer 

then provided the license plate number of the vehicle. It was a 

match to the vehicle found on the night of the incident. 

[Rivera’s] parole agent identified [Rivera] as the second person in 

the photo admitted as Commonwealth Exhibit 7. [Rivera’s] parole 

agent also provided a phone number associated with [Rivera], 

although she never used that number to call him. A SIM card was 

extracted from the cell phone found in the Infiniti and [it] matched 

the phone number provided by the parole agent. Police obtained 

two other pictures of [Rivera] with Mr. Myers . . . from [Rivera’s]

Facebook page [and they were] admitted as Commonwealth

Exhibit 11 and 14. In Commonwealth Exhibit 11 he is wearing a 

hat that is the same brand, color, and style as the hat collected 

from the black Infiniti on the night of the incident. No identifiable 

DNA was able to be extracted from the white hat in the black 

Infiniti.

Trial Court Opinion, 7/7/23, at 3-5.

The jury convicted Rivera of two counts of robbery, two counts of 

conspiracy to commit robbery, and one count each of firearms not to be 

carried without a license, theft by unlawful taking, conspiracy to commit theft 

by unlawful taking, receiving stolen property, conspiracy to commit receiving 

stolen property, terroristic threats, and simple assault.

1 Rivera was found not 

guilty of aggravated assault, simple assault, and assault with a deadly weapon 

as to the physical assault of Jiminez.

The court imposed an aggregate sentence of 21 to 42 years’ 

incarceration followed by 20 years’ probation on the two counts of robbery, 

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1 See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1) (of 3701(a)(1)(ii)), 

6106(a)(1), 3921(a), 903(a)(1) (of 3921(a)), 3925(a), 903(a)(1) (of

3925(a)), 2706(a)(1), and 2701(a)(1), respectively.
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two counts of conspiracy to commit robbery, and firearms not to be carried 

without a license.2It considered the other convictions to have merged.

Rivera filed a post-sentence motion. The court granted the postsentence motion in part. It vacated the judgment of sentence for firearms not 

to be carried without a license and imposed a new sentence on that count, 

reducing the aggregate sentence to 20.5 to 41 years’ incarceration followed 

by 20 years’ probation.

3

It denied the post-sentence motion in all other 

respects. Rivera appealed.4, 5

Rivera raises the following issues:

A. Whether the evidence at trial was insufficient to establish 

beyond a reasonable doubt the elements of firearms not to be 

carried without a license, when there was no testimony concerning 

____________________________________________

2 On the robbery convictions, the court imposed sentences of eight to 16 years’ 

incarceration and six to 12 years’ incarceration. On the conspiracy counts, the 

court imposed sentences of three to six years’ incarceration and 20 years’ 

probation. On the firearms charge, the court imposed a sentence of four to 

eight years’ incarceration. It ran each sentence consecutively.

3 The court reduced the sentence on the firearms charge to three and a half 

to seven years’ incarceration. 

4 Rivera did not file a notice of appeal within 30 days of the new judgement of 

sentence. However, the court reinstated his direct appeal rights on May 9, 

2023, as relief granted on a Post Conviction Relief Act petition. 

5 The notice of appeal erroneously states the appeal is from the order granting 

in part and denying in part the post-sentence motions. The appeal properly 

lies from this order, not because it disposed of post-sentence motions, but 

because it amended Rivera’s judgment of sentence. See Commonwealth v. 

Garzone, 993 A.2d 1245, 1254 n.6 (Pa.Super. 2010); Commonwealth v. 

Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super. 2001) (en banc).
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concealment of the firearm on [Rivera’s] person or that the 

firearm was inside a vehicle and therefore requiring licensure?

B. Whether the Trial Court erred in failing to grant a new trial 

because the convictions on all counts were contrary to the weight 

of the evidence where there was no witness who provided direct 

identification of [Rivera] as the perpetrator and the circumstantial 

evidence was insufficient because the perpetrator was masked for 

the entirety of the event, the car involved was registered to 

another person, the mask had the DNA of two other unidentified 

individuals, and another hat in the vehicle had so many 

individuals’ DNA on it that it could not be separated for 

comparison?

C. Whether under all the circumstances of the within case, the 

within sentence imposed is manifestly excessive so as to inflict too 

severe a punishment on [Rivera]?

Rivera’s Br. at 8-9 (unpaginated)

Rivera first challenges the sufficiency of the evidence supporting the 

conviction for firearms not to be carried without a license. He argues the 

Commonwealth did not establish that he ever “had the gun concealed on his 

person or that he had the gun in the [b]lack Infinit[i].” Id. at 28 

(unpaginated). He points out that both Torres and Jiminez testified that the 

masked assailant – allegedly Rivera – approached them on the street, armed 

with a handgun. They testified that after the robberies, the assailants ran 

away. He stresses that neither victim ever testified that the masked assailant 

had been seen without a gun or inside the car.

We review this issue pursuant to the following standard.

When reviewing a challenge to the sufficiency of the evidence, we 

must determine whether the evidence admitted at trial, and all 

reasonable inferences drawn therefrom, when viewed in a light 

most favorable to the Commonwealth as verdict winner, support 

the conviction beyond a reasonable doubt. Where there is 

sufficient evidence to enable the trier of fact to find every element 
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of the crime has been established beyond a reasonable doubt, the 

sufficiency of the evidence claim must fail. This standard applies 

equally where the Commonwealth's evidence is circumstantial. 

In conducting this analysis, we do not weigh the evidence and 

substitute our judgment for that of the fact-finder. Additionally, 

the Commonwealth’s evidence need not preclude every possibility 

of innocence in order to prove guilt beyond a reasonable doubt. 

The fact-finder is free to believe all, part, or none of the evidence.

Commonwealth v. Clemens, 242 A.3d 659, 664-65 (Pa.Super. 2020)

(cleaned up).

A person commits firearms not to be carried without a license when that 

person “carries a firearm in any vehicle or . . . concealed on or about his 

person, except in his place of abode or fixed place of business, without a valid 

and lawfully issued license under this chapter[.]” 18 Pa.C.S.A. § 6106(a)(1).

Here, the Commonwealth presented sufficient circumstantial evidence 

that Rivera had transported the firearm in a vehicle. The evidence was that

Myers pulled up in his car seconds after the first robbery began. After Myers 

and the masked assailant fled on foot, police found inside the vehicle a

baseball hat matching one that Rivera had worn in a Facebook picture he took 

with Myers. They also found a cell phone bearing the phone number that 

Rivera used to communicate with his parole agent, as well as a live bullet that 

was the same caliber and brand – a .40 caliber Smith & Wesson bullet6 – as

the shell casings discarded when the previously-masked assailant fired the 

handgun. Nearby, the police found a ski mask that had primarily Rivera’s DNA

on it. Viewing this evidence in the light most favorable to the Commonwealth, 

____________________________________________

6 See N.T., 8/30/22, at 119-20, 121-22, 125, 126. 
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it was sufficient to allow the jury to conclude that Rivera rode with Myers in 

Myers’ vehicle to the crime scene and had the handgun with him in the car at 

the time.

Rivera next challenges the weight of the evidence supporting all the 

convictions. He maintains that the trial court abused its discretion in 

determining that the jury’s finding that he was involved was not against the 

weight of the evidence. He points out that while the mask found by the police 

had his DNA on it, it also had the DNA of two other people. Rivera further 

alleges the hat found in the vehicle was of a popular style and had so many 

individuals’ DNA on it that they could not be separated for comparison. He 

asserts there was also no indication of the age of the photo of him wearing a 

similar hat. Rivera claims there was testimony establishing that the phone 

found in the car was registered to someone else, and his parole officer had 

only ever used that number to send text messages to Rivera, not to call him 

directly.

This issue calls for our review of the trial court’s discretion:

When reviewing a challenge to the weight of the evidence, we 

review the trial court’s exercise of discretion. A reversal of a 

verdict is not necessary unless it is so contrary to the evidence as 

to shock one’s sense of justice. The weight of the evidence is 

exclusively for the finder of fact, who is free to believe all, none 

or some of the evidence and to determine the credibility of the 

witnesses. The fact-finder also has the responsibility of resolving 

contradictory testimony and questions of credibility. We give great 

deference to the trial court’s decision regarding a weight of the 

evidence claim because it had the opportunity to hear and see the 

evidence presented.
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Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa.Super. 2019) (cleaned 

up).

The trial court rejected the weight claim, finding “[t]he Commonwealth 

proved that [Rivera] was the masked assailant by circumstantial evidence.” 

Trial Ct. Op. at 8. It noted that “the jury was free to accept or reject the 

various arguments put forth by the defense in this case.” Id. It concluded, 

“After reviewing the record, the verdict, while disappointing to [Rivera], is 

certainly not shocking.” Id.

On the present record, we cannot say that the trial court abused its 

discretion in finding the verdict did not shock the conscience.

In his final issue, Rivera contends his aggregate sentence is manifestly 

excessive. Rivera asserts that the court “deviated from the sentencing 

guidelines [by] imposing sentences above the guidelines on two counts, a top 

of the standard range sentence on one count and an illegal sentence beyond 

the statutory maximum on one count (later corrected).” Rivera’s Br. at 17 

(unpaginated).7 He highlights that the court ran all sentences consecutively, 

for a total sentence of 201⁄2 to 41 years’ incarceration followed by 20 years’ 

probation. He also argues that in imposing the sentence, the trial court failed 

to adequately consider his age and the fact that Myers pleaded guilty and 

received a much shorter sentence of 10 to 20 years’ incarceration, even 

though Myers, and not Rivera, physically assaulted Jiminez, whereas Rivera 

____________________________________________

7 Rivera does not explain which sentences he claims were above the 

guidelines.
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did not injure either victim. Rivera contends the court imposed a relatively 

lengthier sentence for his crimes as punishment for having asserted his right 

to a trial.

Before we review a challenge to the court’s exercise of discretion in 

imposing sentence, “we must assess whether [the appellant] has raised a 

substantial question that the court violated a provision of the Sentencing Code 

or that the sentence is contrary to the norms underlying the sentencing 

process.” Commonwealth v. Goodco Mech., Inc., 291 A.3d 378, 405 

(Pa.Super. 2023).

8 “The key to resolving the preliminary substantial question 

inquiry is whether the decision to sentence consecutively raises the aggregate 

sentence to, what appears upon its face to be, an excessive level in light of 

the criminal conduct at issue in the case.” Commonwealth v. Dove, 301 

A.3d 427, 437 (Pa.Super. 2023) (internal quotation marks and citation 

omitted). Rivera has stated a substantial question. See Commonwealth v. 

Dodge, 77 A.3d 1263, 1271-72 (Pa.Super. 2013) (concluding the appellant's 

claim that the imposition of consecutive sentences was disproportionate to his 

crimes, and that the court disregarded the nature and circumstances of his 

offense, presents a substantial question); Commonwealth v. Perry, 883 

A.2d 599, 602 (Pa.Super. 2005) (finding an excessive-sentence claim, in 

____________________________________________

8 Rivera has satisfied the other requirements for raising a discretionary 

sentencing claim. See Goodco Mech., Inc. at 405 n.21 (noting requirements 

of the timely filing of the appeal, proper preservation of the sentencing issue, 

and inclusion of a Pa.R.A.P. 2119(f) statement in the appellate brief).
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conjunction with an assertion that the court did not consider mitigating 

factors, raises a substantial question).

On the merits, we find no abuse of discretion. A court has broad 

discretion over sentencing because it is “in the best position to determine the 

proper penalty for a particular offense based upon an evaluation of the 

individual circumstances before it.” Goodco Mech., Inc., 291 A.3d at 405 

(citation omitted). “An abuse of discretion may not be found merely because 

an appellate court might have 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.” Id. (citation omitted).

Pursuant to Section 9721 of the Sentencing Code, the court must follow 

the general principle that the sentence “should call for confinement that is 

consistent with section 9725 (relating to total confinement) and 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.” 42 Pa.C.S.A. § 9721(b). The court may impose a sentence of total 

confinement “if, having regard to the nature and circumstances of the crime 

and the history, character, and condition of the defendant,” it finds 

confinement necessary because (1) there is an undue risk that the defendant 

will commit another crime if subject to lesser restrictions, (2) a correction 

institution can provide needed treatment, or (3) “a lesser sentence will 

depreciate the seriousness of the crime of the defendant.” Id. at § 9725.

Where a court has been informed by a pre-sentence investigation report 
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(“PSI”), we presume that it was aware of all information relevant to assessing 

the defendant’s character and any mitigating circumstances. Goodco Mech., 

Inc., 291 A.3d at 407.

The court must also consider the ranges suggested by the sentencing 

guidelines. Id. at § 9721(b). When the court imposes a sentence falling within 

the ranges suggested by the sentencing guidelines, we will only vacate if “the 

case involves circumstances where the application of the guidelines would be 

clearly unreasonable.” Id. at § 9781(c)(2). When the court deviates from the 

guidelines ranges, we will vacate where “the sentence is unreasonable.” Id.

at § 9781(c)(3).

Here, the court stated at sentencing that it was going to use the 

Sentencing Guidelines ranges applicable to a defendant who possessed a 

deadly weapon while committing the offense, and Rivera did not object. See

N.T. 9/1/21 at 4, 7. Nor did Rivera object when the Commonwealth recited 

the guidelines ranges calculated with the deadly weapon possessed 

enhancement (“DWE”). Id. at 4-6.

Given the application of the DWE, contrary to Rivera’s assertions, the 

court did not impose “sentences above the guidelines on two counts, a top of 

the standard range sentence on one count and an illegal sentence beyond the 

statutory maximum on one count (later corrected).”9 Rather, the court 

imposed sentences within the guidelines on all but one count, for which it 

____________________________________________

9 We preliminarily note that Rivera received sentences on five counts, and this 

recitation only includes four.
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imposed a period of probation.

10 We must therefore leave the sentence 

undisturbed unless the circumstances of the case made application of the 

guidelines clearly unreasonable or the imposition of probation was 

unreasonable. 

____________________________________________

10 On count 1 (robbery), the standard range with the DWE was 57-69 months’ 

minimum incarceration, plus or minus 12 months for the mitigated and 

aggravated ranges. See N.T., 9/1/21, at 5. The court imposed a sentence of 

72 months’ minimum incarceration, which was an aggravated range sentence. 

On count 2 (conspiracy to commit robbery), the standard range with the DWE 

was 45-57 months’ minimum incarceration, plus or minus 12 months for the 

mitigated and aggravated ranges. See id. The court imposed a sentence of 

36 months’ minimum incarceration, which was a mitigated range sentence.

On count 13 (robbery), the standard range with the DWE was 81-99 months’ 

minimum incarceration, plus or minus 12 months for the mitigated and 

aggravated ranges. See id. at 4-5. The court imposed a sentence of 96 

months’ minimum incarceration, which was a standard range sentence. 

On count 14 (conspiracy to commit robbery), the standard range with the 

DWE was 69-87 months’ minimum incarceration, plus or minus 12 months for 

the mitigated and aggravated ranges. See id. at 5-6. The court imposed a 

sentence of 20 years’ probation. This sentence constituted an upward 

departure from the guidelines, and the statutory maximum. See 18 Pa.C.S.A. 

§ 1103(1) (stating maximum sentence for a first-degree felony is 20 years).

Finally, on count 5 (firearms not to be carried without a sentence), the DWE 

did not apply. See N.T., 9/1/21, at 5. The standard range was 36-48 month’s 

minimum incarceration. See id. at 4, 6 (Rivera’s prior record score is 4), 5 

(stating standard range); see also 204 Pa. Code § 303.15 (providing offense 

gravity score of 9); 204 Pa. Code § 303.16(a) (basic sentencing matrix). 

However, the statutory maximum for the offense was 42 to 84 months’ 

incarceration. See 18 Pa.C.S.A. §§ 6106(a)(1) (grading violation as thirddegree felony), 1103(3) (providing maximum sentence for third-degree felony 

is seven years). While the initial sentence was 48 months’ minimum 

incarceration, which was a standard-range sentence, that sentence exceeded 

the statutory maximum. Rivera’s corrected sentence was 42 months, which, 

while it was the statutory maximum, also fell within the standard range.
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We do not find such circumstances existed. The court stated that it 

reviewed the PSI, the recommendations of counsel, and the ranges suggested 

by the sentencing guidelines. Id. at 13-14. It noted that while Myers received 

a lesser sentence because the Commonwealth offered him a plea deal, it 

stated it does not penalize defendants for exercising their right to a trial. Id.

at 12. It noted Rivera had four prior robbery convictions and had committed 

the instant offenses after serving 10 years and a short period of parole. Id. at 

13. The court stated,

And the scenario that’s presented by the facts of this case is that 

the defendant and Mr. Myers were, in effect, roaming the area 

waiting for people to get out of the Rancho Merengue, which is 

well known as a place where at closing time, the streets are –

there are a lot of people in the streets – and apparently robbing 

people at gunpoint. This is extraordinarily dangerous conduct.

Id. at 13. The court noted Rivera was 31 at the time of sentencing and had 

“not been rehabilitated in the slightest way” by his first 10-year sentence, “so 

his rehabilitative needs are huge.” Id. at 14.

The record reveals that the court adequately considered all relevant 

sentencing factors and that its imposition of guidelines sentences and an 

above-guidelines sentence of probation, while consecutively imposed, was not 

unreasonable or an abuse of discretion.

Judgment of sentence affirmed.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/8/2024