J-S59025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MIGUEL ALEJANDRO BADELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3522 EDA 2016

Appeal from the Judgment of Sentence October 6, 2016

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0003115-2015

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.: FILED OCTOBER 31, 2017

Miguel Alejandro Badell appeals from the judgment of sentence imposed 

October 6, 2016, in the Lehigh County Court of Common Pleas. The trial court 

imposed a statutory maximum sentence of 10 to 20 years’ imprisonment, after 

Badell entered a guilty plea to one count of aggravated assault,1 graded as a 

first-degree felony, for an attack on his former girlfriend. On appeal, Badell 

challenges the discretionary aspect of his sentence. For the reasons below, 

we affirm.

The facts underlying Badell’s guilty plea were summarized by the trial 

court as follows:

____________________________________________

 Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2702(a)(1).
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On June 5, 2015, Michelle Lee Brown appeared at the 

Pennsylvania State Police barracks in Fogelsville, Pennsylvania to 

report an ongoing situation of domestic abuse by her live-in 

paramour, [Badell]. Ms. Brown related several instances of abuse, 

including [Badell] threatening Ms. Brown with a knife; headbutting Ms. Brown (resulting in a cracked nose); threatening to 

“make her disappear;” choking the victim; and showing her a 

recently purchased gun and subsequently firing a round at Ms. 

Brown’s head. Ms. Brown also related that on another occasion 

when she refused to have sex with [Badell], he tied her up, 

brandished a gun, and assaulted and choked her.

Trial Court Opinion, 12/28/2016, at 3-4. Badell was subsequently arrested 

and charged with aggravated assault (two counts), terroristic threats (four 

counts), unlawful restraint, simple assault (seven counts), and recklessly 

endangering another person (four counts).2

On August 15, 2016, Badell entered an open guilty plea to one count of 

aggravated assault. The Commonwealth then withdrew the remaining 

charges. On October 6, 2016, after considering a pre-sentence investigation 

report, as well as testimony from both the victim, the victim’s daughter, and 

Badell, the trial court imposed the statutory maximum sentence of 10 to 20 

years’ imprisonment.3 Badell filed a timely motion for reconsideration of 

sentence, asserting the sentence imposed was “manifestly harsh and 

excessive,” given that it was the statutory maximum sentence permitted by 

____________________________________________

2 See 18 Pa.C.S. §§ 2702(a)(1), 2706(a)(1), 2902(a)(1), 2701(a)(1) and 

(a)(3), and 2705, respectively.

3 Badell’s aggravated assault conviction called for a standard range sentence 

of 60 to 72 months’ imprisonment. See Presentence Investigation Report, 

10/3/2016, at Guideline Sentence Form. Lehigh County Probation and Parole 

recommended an aggravated range sentence of seven to 15 years’ 

imprisonment. See id. at 14.
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law, he accepted responsibility for his crimes and expressed remorse, he has 

no family on the east coast, and the court punished him for his entire 

relationship with the victim (including allegations raised for the first time at 

the sentencing hearing), rather than for the one crime to which he pled guilty. 

Petition for Reconsideration, 10/17/2016, at 1-2. The court denied the motion 

the next day. This timely appeal followed.4

On appeal, Badell raises four challenges to the discretionary aspects of 

his sentence. When considering such claims, we must bear in mind:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) 

(quotation omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Furthermore,

it is well-settled that:

[a] challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. Prior to reaching 

the merits of a discretionary sentencing issue:

We 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).

____________________________________________

4 On November 29, 2016, the trial court ordered Badell to file a concise 

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

Badell complied with the court’s directive, and filed a concise statement on 

December 20, 2016.
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Commonwealth v. Grays, 167 A.3d 793, 815–816 (Pa. Super. 2017) (some 

citations omitted).

In the present case, Badell complied with the procedural requirements 

for this appeal by filing a timely post-sentence motion for modification of 

sentence, and subsequent notice of appeal, and by including in his appellate 

brief a statement of reasons relied upon for appeal pursuant to 

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 

2119(f). Therefore, before we may address the merits of each of his claims, 

we must determine whether he has raised a substantial question justifying our 

review.5

In the first challenge, Badell contends the court imposed a sentence 

above the aggravated range of the guidelines without providing adequate 

reasons on the record. See Badell’s Brief at 8. He maintains the sentence 

imposed was unreasonable, and the court improperly focused solely on his 

“prior record and the victim impact statement.” Id. at 9. A claim that the 

trial court imposed a sentence outside the guideline ranges, without providing 

adequate reasons on the record for doing so, presents a substantial question 

for our review. See Commonwealth v. Griffin, 804 A.2d 1, 7-8 (Pa. Super. 

____________________________________________

5 A substantial question exists when an appellant sets forth “a colorable 

argument that the sentence imposed is either inconsistent with a specific 

provision of the Sentencing Code or is contrary to the fundamental norms 

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d 

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009) 

(citation omitted). 
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2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 

(2005). 

Section 9781(c)(3) of the Sentencing Code requires an appellate court 

to vacate a sentence imposed outside the guideline ranges if the sentence is 

“unreasonable.” 42 Pa.C.S. § 9781(c)(3). Although the statute does not 

define “unreasonable,” Subsection (d) provides further guidance for the 

reviewing court:

(d) Review of record. -- In reviewing the record the appellate 

court shall have regard for:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4). Further, Section 9721 of the Sentencing Code 

mandates that when determining the appropriate sentence, the trial court 

“shall follow the general principle that the sentence imposed should call for 

confinement that is consistent with 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. § 

9721(b).
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In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), the 

Pennsylvania Supreme Court considered what constitutes an “unreasonable” 

sentence under the statute:

Generally speaking, “unreasonable” commonly connotes a 

decision that is “irrational” or “not guided by sound judgment.” 

The Random House Dictionary of the English Language, 2084 (2nd 

ed.1987); see 1 Pa.C.S. § 1903 (words to be construed according 

to their common and approved usage). While a general 

understanding of unreasonableness is helpful, in this context, it is 

apparent that the General Assembly has intended the concept of 

unreasonableness to be a fluid one, as exemplified by the four 

factors set forth in Section 9781(d) to be considered in making 

this determination. Indeed, based upon the very factors set out 

in Section 9781(d), it is clear that the General Assembly intended 

the concept of unreasonableness to be inherently a circumstancedependent concept that is flexible in understanding and lacking 

precise definition. Cf. United States v. Crosby, 397 F.3d 103, 

115 (2nd Cir. 2005) (explaining concept or reasonableness in 

context of sentencing matters).

Thus, given its nature, we decline to fashion any concrete rules as 

to the unreasonableness inquiry for a sentence that falls outside 

of applicable guidelines under Section 9781(c)(3). We are of the 

view, however, that the Legislature intended that considerations 

found in Section 9721 inform appellate review for 

unreasonableness. That is, while a sentence may be found to be 

unreasonable after review of Section 9781(d)’s four statutory 

factors, in addition a sentence may also be unreasonable if the 

appellate court finds that the sentence was imposed without 

express or implicit consideration by the sentencing court of the 

general standards applicable to sentencing found in Section 9721, 

i.e., the protection of the public; the gravity of the offense in 

relation to the impact on the victim and the community; and the 

rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b). 

Moreover, even though the unreasonableness inquiry lacks precise 

boundaries, we are confident that rejection of a sentencing court’s 

imposition of sentence on unreasonableness grounds would occur 

infrequently, whether the sentence is above or below the guideline 

ranges, especially when the unreasonableness inquiry is 

conducted using the proper standard of review.
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Id. at 963-964.

Here, our review of the sentencing transcript reveals the trial court 

considered the guideline ranges for Badell’s crime, but concluded the facts and 

circumstances underlying his conviction called for a sentence above the 

aggravated range of the guidelines. See N.T., 10/6/2016, at 5 (trial court 

stating it reviewed the “presentence investigation report, which had attached 

thereto sentencing guidelines”). After imposing the 10 to 20-year sentence, 

the trial court explained:

This sentence departs from the guidelines. It is in excess of 

the aggravated range. It is, in fact, the maximum possible penalty 

that I can impose in this matter. And I do so because you are a 

repeat violent domestic violence offender.

You have violated previous court orders that have been 

intended to control your behavior. You have caused what may be 

irreparable harm to the victim and to her family.

And this has been a course of conduct that has, in my mind, 

been intended to terrorize and to tear down another human being.

Id. at 66. In its opinion, the court further elaborated that the “guilty plea 

narrative and the testimony taken at the sentencing hearing [demonstrated] 

the victim was psychologically, physically, and sexually abused by [Badell] 

during the course of their relationship.” Trial Court Opinion, 12/28/2016, at 

6. Indeed, Badell’s victim, Brown, delivered a powerful victim impact 

statement that spanned 36 pages in the transcript, and detailed her four-year 

relationship with Badell, during which time he repeatedly physically and 

psychologically abused her. See N.T., 10/6/2016, at 7-43. Further, the trial 

court emphasized that Badell had been convicted of domestic violence-related 
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crimes on two prior occasions in California, and “served significant periods of 

incarceration for those crimes.” Trial Court Opinion, 12/28/2016, at 7. 

We find the trial court’s comments both at the sentencing hearing and 

in its opinion, demonstrate that the court considered the factors listed in 

Sections 9721(b) and 9781(b) before imposing a sentence above the 

aggravated range of the guidelines. Indeed, the court’s focus on Badell’s 

history of domestic abuse and his failure to conform his behavior after two 

prior convictions, establishes its consideration of the protection of the public 

and Badell’s rehabilitative needs. See 42 Pa.C.S. §§ 9721(b); 9781(d)(1). 

Likewise, the court’s emphasis on the psychological and physical harm Badell 

inflicted on the victim over a sustained period of time evidences its 

consideration of the gravity of the offense as it relates to the impact on the

life of the victim. See id. Furthermore, we emphasize that prior to the 

hearing, the trial court reviewed a presentence investigation report, which 

Badell’s counsel believed was “done very fairly for Mr. Badell,” as well as “a 

packet of letters” supporting Badell, and a “lengthy letter with some 

attachments” that Badell submitted himself. N.T., 10/6/2016, at 5, 57. 

Moreover, Badell spoke at the sentencing hearing, and the court was able to 

hear his apology to the victim and her family. See id. at 54-56. Accordingly, 

Badell’s first sentencing claim warrants no relief.6 

____________________________________________

6 We note that Badell’s reliance on this Court’s decisions in Commonwealth 

v. Walls, 846 A.2d 152 (Pa. Super. 2005), and Commonwealth v. 
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Second, Badell asserts the trial court failed to consider his individual 

characteristics when imposing the statutory maximum sentence, particularly 

his rehabilitative needs (including mental health and drug and alcohol 

treatment), his acceptance of responsibility and his “sincere overtures of 

remorse.”7 Id. at 12. “[A]n allegation that the sentencing court failed to 

consider mitigating factors generally does not raise a substantial question for 

our review.” Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa. Super. 

2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132 S.Ct. 1746 

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Caraballo, 848 A.2d 1018 (Pa. Super. 2004), is misplaced. See Badell’s Brief 

at 8-10. Although a panel of this Court initially vacated the sentences in both 

cases based upon the trial court’s purported failure to impose individualized 

sentences, the Pennsylvania Supreme Court reversed on appeal finding, in 

Walls, supra, 926 A.2d 957, that the panel “usurped the sentencing court’s 

discretion,” and remanding the appeal to this Court for “a re-examination of 

the judgment of sentence in light of [its] decision[.]” Id. at 966, 968. 

Similarly, the Supreme Court vacated the panel’s original decision in 

Carabello, and remanded the matter “for further consideration” in light of its 

decision in Walls. Commonwealth v. Caraballo, 933 A.2d 650 (Pa. 2007). 

Upon remand, both the Walls and Carabello panels affirmed the judgment 

of sentence of the trial court in unpublished memorandum decisions. See 

Commonwealth v. Walls, 938 A.2d 1122 [747 MDA 2003] (Pa. Super. 

2007); Commonwealth v. Carabello, 959 A.2d 458 [1053 WDA 2003] (Pa. 

Super. 2008).

7 To the extent Badell argues the trial court erred in failing to order a mental 

health and drug and alcohol evaluation as part of his pre-sentence 

investigation, we find that this claim is waived because he did not challenge 

the absence of these evaluations during the sentencing hearing, nor did he 

include this argument in his post-sentence motion. See generally N.T., 

10/6/2016; Petition for Reconsideration, 10/17/2016. See also 

Commonwealth v. Miklos, 159 A.3d 962, 970 (Pa. Super. 2017) 

(discretionary sentencing issue not preserved during sentencing hearing or in 

post-sentence motion is waived on appeal).
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(U.S. 2012). However, an “excessive sentence claim[ ] in conjunction with an 

assertion that the court did not consider mitigating factors[,]” does present a 

substantial question for our review. Commonwealth v. Gonzalez, 109 A.3d 

711, 731 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015), 

quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) 

(en banc), appeal denied, 91 A.3d 161 (Pa. 2014).

Here, our review of the sentencing transcript reveals Badell presented 

no evidence at his sentencing hearing that he suffered from mental health 

issues or was addicted to drugs or alcohol.

8

 The self-diagnosis he presents in 

his brief, as well as his emphasis on his prior drug arrests,9 does not change 

the fact that Badell failed to argue these potential mitigating circumstances 

before the trial court as excuses for his behavior. Indeed, Badell “insisted he 

never had a problem with substance abuse” in his presentence investigation 

interview, despite a history of drunk driving convictions and admitted social 

drug use. Presentence Investigation Report, 10/3/2016, at 11. He further 

denied mental health problems, explaining “it’s me. I was an asshole. I was 

____________________________________________

8 We reject Badell’s contention that the trial court was required to parse 

through the victim’s impact statement for potential evidence that might 

mitigate his behavior. See Badell’s Brief at 11-12.

9 See Badell’s Brief at 11-12.
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aggressive. I was threatening.”10 Id. at 12. Moreover, although Badell did 

admit his crime by entering a guilty plea, and apologized to the victim and her 

daughters during the sentencing hearing, the sincerity of his acceptance of 

responsibility and his remorse was for the trial court to assess.11 Accordingly, 

____________________________________________

10 We note Badell did admit to Lehigh County Probation and Parole that he had 

been taking steroids for several weeks. See Presentence Investigation 

Report, 10/3/2016, at 12. 

11 Indeed, Badell’s version of the incident to which he pled guilty differed 

greatly from the Commonwealth’s recitation of facts at the guilty plea hearing. 

The Commonwealth described the encounter as follows. On a morning in April 

of 2015, Badell came downstairs and told the victim “it was the day she was 

doing to disappear.” N.T., 8/15/2016, at 24. He then attempted to lure her 

into the garage, but she resisted by placing her arms in the doorway. See id. 

Badell then told the victim “it was time to go to sleep” and proceeded to choke 

her until she was unconscious. Id. at 24. When she awoke in the den, Badell 

was “standing over her asking her where her God was because she was 

praying as she was placed into unconsciousness by [him].” Id. He walked 

her back to the garage where the trunk of the car was open, and told her 

again she was going to disappear. See id. The victim, however, managed to 

diffuse the situation. 

In the presentence investigation report, Badell described the incident as 

follows: 

 

"This morning I grabbed her from behind. I said something 

aggressive into her ear. For about two seconds, she went limp on 

me, and I put her down. I honestly thought she was faking. She 

convulsed. That’s when I got scared.” When she regained 

consciousness, [the victim] asked what happened. “I said, ‘I don't 

know. You were flopping like a fish.’ She shook two or three times. 

That’s when I realized she wasn’t faking. She got up. Her 

daughter came in with her boyfriend. I stayed away from the 

house....”

Presentence Investigation Report, 10/3/2016, at 4.
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we conclude Badell has failed to demonstrate the trial court neglected to 

consider his individual characteristics in imposing a statutory maximum 

sentence.

In his two remaining discretionary sentencing issues, Badell argues: (1) 

the trial court’s comments during the sentencing hearing evidenced its bias 

against defendants accused of domestic violence, and pre-disposition for 

sympathy for domestic abuse victims; and (2) the court double counted his 

prior record when it cited his prior convictions as a factor for imposing a 

statutory maximum sentence. See id. at 14, 16. We need not determine 

whether these claims raise a substantial question because both are waived on 

appeal. Badell did not include either of these issues in his post-sentence 

motion, nor did he raise the issues during his sentencing hearing. Accordingly, 

no relief is warranted. See generally N.T., 10/6/2016; Petition for 

Reconsideration, 10/17/2016. See also Miklos, supra.

Therefore, because we conclude Badell’s challenges to his sentence are 

either meritless or waived, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/31/2017