Com. v. Matthews, Jr., H. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARVEY L. MATTHEWS, JR.,
Appellant No. 531 MDA 2015
Appeal from the Judgment of Sentence of December 2, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001241-2014
BEFORE: GANTMAN, P.J., OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 05, 2015
Appellant, Harvey L. Matthews, Jr., appeals from the judgment of
sentence entered on December 2, 2014, following his guilty pleas to simple
assault, disorderly conduct, and harassment.1 We affirm.
We summarize the factual and procedural history of this case as
follows. On October 27, 2014, Appellant entered an open guilty plea to the
aforementioned offenses following an incident in which he was observed
slamming his paramour’s head onto the pavement. On December 2, 2014,
the trial court sentenced Appellant to one to two years in state prison for
simple assault and six to 12 months in state prison for disorderly conduct.
Appellant received a fine for his harassment conviction. In addition, the trial
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1
18 Pa.C.S.A. §§ 2701(a)(1), 5503(a)(1), and 2709(a)(1), respectively.
* Retired Senior Judge assigned to the Superior Court.
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court ordered a mental health evaluation and directed that any resulting
recommended treatment be completed in prison. It further ordered no
drugs, no alcohol, and the completion of a domestic violence intervention
program and counseling.
On December 12, 2014, Appellant filed a pro se motion to reconsider
his sentence, seeking the imposition of concurrent punishments. On January
28, 2015, newly appointed counsel filed an amended motion to reconsider
sentence. The Commonwealth filed an answer to Appellant’s motion on
February 9, 2015 and the court denied relief on February 20, 2015.
Appellant filed a timely notice of appeal on March 20, 2015. On March
23, 2015, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on April 10, 2015. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on April 21, 2015.
On appeal, Appellant raises a single issue for our review:
Whether the imposition of an aggregate sentence of [18 to
36] months['] incarceration was excessive given [Appellant’s
circumstances]?
Appellant’s Brief at 4.
“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. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an
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automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach 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, 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. [708]; (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).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007). As previously
noted, Appellant filed a timely notice of appeal. Moreover, the issue
Appellant presents on appeal was properly preserved in counsel’s amended
post-sentence motion. Appellant’s brief also has a statement pursuant to
Pa.R.A.P. 2119(f). Thus, we turn to whether the appeal presents a
substantial question.
As we have explained:
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case
basis. Generally, however, in order to establish that there
is a substantial question, the appellant must show actions
by the sentencing court inconsistent with the Sentencing
Code or contrary to the fundamental norms underlying the
sentencing process.
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted).
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Appellant's position is that he has raised a substantial question since
the imposition of an aggregate sentence of 18 to 36 months’ incarceration
(predicated upon the consecutive punishments ordered by the trial court) is
excessive given his particular circumstances, including his rehabilitative
needs. See Appellant’s Brief at 7. We have determined, in limited
circumstances, that similar claims raise a substantial question. See
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (“To
make it clear, a defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines would be
clearly unreasonable, resulting in an excessive sentence; however, a bald
claim of excessiveness due to the consecutive nature of a sentence will not
raise a substantial question.”); see also Commonwealth v. Moury, 992
A.2d 162, 171–172 (Pa. Super. 2010) (“The imposition of consecutive,
rather than concurrent, sentences may raise a substantial question in only
the most extreme circumstances, such as where the aggregate sentence is
unduly harsh, considering the nature of the crimes and the length of
imprisonment.”). Assuming, without deciding, that Appellant raises a
substantial question, we are confident that Appellant is not entitled to relief
on the substantive merit of his discretionary sentencing claims.
In sentencing Appellant, the trial court was required to “consider the
general principles and standards of the Sentencing Code.” Commonwealth
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v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses
these general principles in the following manner:
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.A. § 9721(b).
In this case, the trial court specifically examined the factors under
Section 9721 and fashioned an individualized sentence according to its
findings. The court determined that Appellant presented a danger to the
community because of his lengthy criminal history, which includes multiple
prior assaults upon women. It was also established at Appellant’s
sentencing hearing that the present assault occurred while Appellant was
under supervision for a prior instance of domestic violence. In addition, the
court ordered mental health evaluations and treatment to address
Appellant’s rehabilitative needs and observed that state prison officials could
monitor and address Appellant’s medical issues. Lastly, while the court
determined that Appellant’s desires to care for his aging mother and to
attend his daughter’s graduation were admirable, his criminal history and
the risk he posed to society outweighed his pledges to be a better son and
father. These determinations find ample support in the certified record and
we discern no basis upon which to conclude that the trial court abused its
discretion in imposing Appellant’s consecutive sentences.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2015
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