J-S68032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID RIVERA

Appellant No. 2951 EDA 2014

Appeal from the Judgment of Sentence June 13, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002554-2014

BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 23, 2015

Appellant, David Rivera, appeals from the June 13, 2014 judgment of 

sentence of 20 to 40 months of incarceration, imposed by the trial court 

after Appellant entered an open guilty plea to stalking.1,2 After careful 

review, we affirm.

The trial court summarized the evidence presented at the sentencing 

hearing as follows.

On July 29, 2013, Appellant pled guilty to 

simple assault and terroristic threats against Maria 

Tull. While incarcerated for th[ese] offense[s], 

Appellant made 132 phone calls to Ms. Tull between 

____________________________________________

1 18 Pa.C.S.A. §2709.1.

2 The same day, at a separate docket, the trial court sentenced Appellant to 

a consecutive two and one-half to five years of incarceration relative to a 

probation violation. Appellant did not appeal that sentence.
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November 2 and November 21, 2013. Her phone 

number was subsequently blocked from his calls on 

November 23[, 2013]. Appellant also sent fourteen 

letters to Ms. Tull between November 12, 2013, and 

May 9, 2014. Ten of the letters were sent from the 

Philadelphia prison system with Appellant’s name 

and prison identification number. The letters were 

sent both to Ms. Tull’s home address and her post 

office box.

These letters, which were entered into 

evidence, contained threats against Ms. Tull and 

others. Several excerpts were read at sentencing:

Letter Postmarked 11/9/13: “You’ll know what 

I’m capable of. This will not remain like this. 

Thanks for all the damage you’ve done to my 

life. I imagine you must be happy at having 

played my feelings and mean [sic]. Because of 

you I have fallen into a deep depression and 

have tried to slit my wrists thanks to you. But 

you will pay for all this you done to me.”

Letter Postmarked 11/12/13: “To Maria the 

miserable whore: You should not have played 

with me. You should not have taken 

advantage of me. I am your worse [sic] 

enemy. All of this love I have for you will turn 

to hate. I want to see you dead. All this is for 

the moron you are with: Get ready to face 

me. He and his family are sentenced. You 

know I just don’t talk. I am a real man. When 

I get out of here I’m going to look for you and 

you already know what will happen to you.”

Ms. Tull testified in front of the indicting grand 

jury regarding this correspondence. Following her 

testimony she continued to receive threatening 

letters.

Letter Postmarked 2/25/14: “What the f[***] 

do you have against me that you only play 

with me? Why do you not answer my letters 

or phone? I will found [sic] out what is going 

on with you and Tommy again. I will find out if 

you are seeing him again.” 
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Letter Postmarked 3/1/14: “And I will tell you 

if you are pregnant it is better for you to abort 

it. I am telling you you will find out who I am. 

Tell the one who you are with to get ready 

because I won’t let things go. I hope you stop 

hurting me and stop calling the bitch DA who 

keep singing [sic] me. Stop sending letters I 

send you to that bitch.”

Letter Postmarked 3/7/14: “I’m telling you if 

you hid that you are pregnant I swear either 

you have a miscarriage and tell the other 

person that his days are numbered. You know 

I know your date of birth and your social 

security number. I don’t want to hurt you but 

you decide if you come see me; otherwise I

will not allow any more mockery.”

Appellant pled guilty to the present charge of 

stalking and was sentenced on the same day. His 

mother, Maria Rivera, addressed the court during 

sentencing. Appellant’s sister, Gina Sepulveda, also 

testified on his behalf. Both women’s statements 

insisted that Ms. Tull was largely to blame for 

Appellant’s actions. When Appellant spoke on his 

own behalf, he also blamed Ms. Tull for his actions.

Trial Court Opinion, 12/15/14, at 2-3 (citations to notes of testimony 

omitted). 

In addition to the foregoing evidence, the Commonwealth stated at the 

sentencing hearing as follows.

What is especially concerning for the 

Commonwealth is [Appellant’s] prior history with 

another woman. And I know Your Honor will take 

this for what it is, he was arrested, he was convicted 

after Municipal Court trial for simple assault and 

resisting arrest. The simple assault was domestic in 

nature. [The v]ictim in that case was Barbara 

Maldanado.
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N.T., 6/13/14, at 29. The Commonwealth noted that Appellant appealed the 

conviction and it was nolle prossed, although Appellant was arrested for a 

second offense against Ms. Maldonado, and that case was withdrawn at the 

Municipal Court level. Id. at 30-31. Appellant’s counsel objected to the 

Commonwealth’s references to Appellant’s history with Ms. Maldanado, but 

the trial court responded, “I think it is rel[evant] to determine [an] 

appropriate sentence, like I heard about a lot of other things today.” Id. at 

30.

At the conclusion of the June 13, 2014 sentencing hearing, the trial 

court sentenced Appellant on the stalking charge to 20 to 40 months of 

incarceration. On June 23, 2014, Appellant filed a motion for 

reconsideration of sentence, which the trial court denied on September 10, 

2014. Appellant filed a timely notice of appeal on October 10, 2014.3 

On appeal, Appellant presents the following issue.

Did not the lower court err and abuse its discretion 

when it imposed an aggravated sentence based on 

an impermissible factor, specifically, [A]ppellant’s 

prior arrests, which did not result in convictions, but 

were nonetheless treated as establishing criminal 

conduct?

Appellant’s Brief at 3.

____________________________________________

3 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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We initially note that Appellant’s argument on appeal pertains to the 

discretionary aspects of his sentence. “Pennsylvania law makes clear that 

by entering a guilty plea, the defendant waives his right to challenge on 

direct appeal all non[-]jurisdictional defects except the legality of the 

sentence and the validity of the plea.” Commonwealth v. Lincoln, 72 

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 

319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea, 

he does not waive claims regarding the discretionary aspects of the sentence 

“because there was no agreement as to the sentence [the defendant] would 

receive.” Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013) 

(citation omitted). Nevertheless, “[t]here is no absolute right to appeal 

when challenging the discretionary aspect of a sentence.” Commonwealth 

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an 

appellant advances an argument pertaining to the discretionary aspects of a 

sentence, this Court considers such an argument to be a petition for 

permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247, 

1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal denied, 104 

A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this Court 

determines that there is a substantial question that the sentence was not 

appropriate under the sentencing code.” Commonwealth v. Cartrette, 83 

A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks and 

citation omitted).
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Prior to reaching the merits of a discretionary aspects of sentencing 

issue, this Court is required to conduct a four-part analysis to determine 

whether a petition for permission to appeal should be granted. 

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) 

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we 

must determine the following.

(1) [W]hether appellant has filed a timely notice of 

appeal, Pa.R.A.P. 902, 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, 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).

Id.

Instantly, Appellant filed a timely motion for modification of sentence 

and notice of appeal. Also, he has included a Rule 2119(f) statement in his 

brief. Appellant’s Brief at 8-9. We therefore proceed to determine whether 

Appellant has raised a substantial question for our review.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 

(Pa. 2013). “A substantial question exists only when 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 
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to the fundamental norms which underlie the sentencing process.” Id. 

(citations omitted). “Additionally, we cannot look beyond the statement of 

questions presented and the prefatory 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Provenzano, 

50 A.3d 148, 154 (Pa. Super. 2012).

In this case, Appellant avers that the trial court abused its discretion, 

and asserts that the trial court “erred when it treated [Appellant’s] prior 

arrests as having established criminal conduct.” Appellant’s Pa.R.A.P. 

2119(f) Statement, Appellant’s Brief at 9; see also Appellant’s Statement of 

the Question Involved, id. at 3 (stating that the trial court erred in relying 

on Appellant’s prior arrests “which did not result in convictions, but were 

nonetheless treated as establishing criminal conduct”). Given these claims, 

we conclude that Appellant has raised a substantial question. 

Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006) (holding a 

claim that the trial court relied on impermissible factors, such as uncharged 

conduct in imposing its sentence, raises a substantial question), appeal 

denied, 906 A.2d 542 (Pa. 2006); see also Commonwealth v. Bowen, 

975 A.2d 1120, 1122 (Pa. Super. 2009) (holding a substantial question is 

raised when an appellant alleges that the sentencing court considered 

improper factors when rendering an aggravated range sentence). Upon 

review, however, we are not persuaded that Appellant is entitled to relief.
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At sentencing, Appellant had an offense gravity score of 6 and a prior 

record score of 1, resulting in a guideline sentence of 6 to 14 months, plus 

or minus 6 months. N.T., 6/13/14, at 11, 23. Appellant’s counsel requested 

a sentence of 6 to 23 months. Id. at 24, 26. The Commonwealth requested 

a sentence of “two to four years ... because [Appellant] has essentially been 

terrorizing this woman since February of 2013. ... [Appellant] actually got out 

when he pled guilty on July 29 of 2013 for committing crimes against this 

woman. And within two weeks, he was stalking her again, following her to 

her place of work, waiting in the parking lot, vandalizing her car.” Id. at 27.

After hearing from counsel, the trial court commented on the record at 

length.

I have considered the presentence, mental 

health report, the arguments of counsel, the history 

of the underlying cases, and of course what 

[Appellant] has to say and what the witnesses have 

had to say here.

This case started with a negotiated – well, my 

involvement started with a negotiated guilty plea I 

believe it was July 29th of 2013 in which [Appellant] 

pled guilty to simple assault. I gave [Appellant] 3 to 

23 months with immediate parole and ..., 3 years 

reporting probation. [Appellant] was to go to 

Menergy for battered intervention program, stayaway domestic violence supervision. 

I believe that within a short period of time, it 

was August, an incident occurred, and [Appellant 

was] taken into custody. And we had a VOP hearing 

in October. And [the] original incident, [Appellant 

was] on I-95 going after her, and some other things, 

I found [Appellant] in violation October 18, 2013. 

And I gave [Appellant] back time on simple assault 

and five years’ probation.
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By December 5, 2013, I believe that was when 

[Appellant was] arrested for what occurred after I 

sentenced [him] on the probation. I don’t know, 

[Appellant], what causes all this. What I hear from 

your family is that the complainant is a horrible 

person who caused this, that she is the one, and you 

are shaking your head as I’m saying this, that 

somehow she is the demon who teases you like a 

dog with red meat or something, and everything that 

has occurred here is because of what she has done.

***

... And the decision that is going to be made 

here is going to be made on the evidence that I 

heard, the standard of law that we have in the 

Commonwealth of Pennsylvania. And I don’t 

understand why you can’t stay away from her.

I understand there [are] some mental health 

issues and I read about those. But this is beyond 

anything I have seen in the case. The way these 

cases end, you know how they usually end 

eventually? Murder-suicide. And [Appellant is] 

shaking [his] head “yes” as I’m saying that. That I 

don’t want to happen here. ...

And I don’t know what to do to protect the 

complainant except to give [Appellant] the following 

sentence ...

On the VOP case, terroristic threats, it’s going 

to be two and a half to five years in state prison. ... 

As to the new case that [Appellant] pled guilty to 

today, which is the stalking case, in which guidelines 

call for 6 to 14 months, on that case I am going to 

give [Appellant] a sentence of 20 to 40 months 

which will be consecutive to the two-and-a-half to 

five years. ...

I don’t know what else can be done except I 

hope that by the time when [Appellant is] released, 

[Appellant], you will not be doing this, and the 

complainant will be somewhere else. You have had 

numerous chances. But all I’m hearing is [it is] the 

complainant’s fault, it is [the] complainant who did 
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this. Those letters were a window into who 

[Appellant was]. And unfortunately [Appellant’s] 

other actions were another window. A window is –

what happened with the previous woman is also a 

window.

***

And I don’t know what else to do with 

[Appellant]. It is with reluctance that I give 

[Appellant] this sentence. But I’m fearful that 

without this sentence, there would be a murdersuicide because of the way [Appellant] think[s] and 

act[s] and what I have seen while I have had 

[Appellant] under my supervision.

N.T., 6/13/14, at 35-40.

Upon review, we conclude that the trial court’s reasoning is supported 

by both the record and established case law. We have explained that “a 

proceeding held to determine sentence is not a trial, and the court is not 

bound by the restrictive rules of evidence properly applicable to trials.” 

Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999) 

(citations omitted), appeal denied, 749 A.2d 468 (Pa. 2000). “Rather, the 

court may receive any relevant information for the purposes of determining 

the proper penalty.” Id. (citations omitted); see also Commonwealth v. 

duPont, 730 A.2d 970, 986 (Pa. Super. 1999) (“in sentencing, a court is not 

limited to consideration of information which would be admissible evidence 

at trial”), appeal denied, 749 A.2d 466 (Pa. 2000), cert. denied, duPont v. 

Pennsylvania, 530 U.S. 1231 (2000). Such information may include 

evidence of prior arrests or criminal conduct, even where a conviction did 

not arise from that behavior. See P.L.S., supra (“the fact that a defendant 
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is guilty of prior criminal conduct for which he escaped prosecution has long 

been an acceptable sentencing consideration”).

Based on the foregoing, we discern no error by the trial court and thus 

affirm the June 13, 2014 judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2015