J-S63027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICHOLAS POMPEII
Appellant No. 678 EDA 2015
Appeal from the Judgment of Sentence December 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003991-2014
CP-51-CR-0003996-2014
CP-51-CR-0003997-2014
CP-51-CR-0003998-2014
CP-51-CR-0004000-2014
BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 06, 2015
Appellant, Nicholas Pompeii, appeals from the December 2, 2014
aggregate judgment of sentence of 11 to 22 years of incarceration, imposed
after Appellant entered into an open guilty plea to a multitude of charges.1
After careful review, we affirm.
____________________________________________
1
As noted by the Commonwealth, “[Appellant] and his co-conspirators
committed four armed robberies over a span of [several] days, terrorizing a
neighborhood in South Philadelphia.” Commonwealth Brief at 3. Relative to
these actions, Appellant pled guilty to multiple counts of robbery,
aggravated assault, conspiracy, simple assault, possession of an instrument
of crime, theft by unlawful taking, receiving stolen property, terroristic
threats, possession of a firearm prohibited, firearms not to be carried
without a license, carrying a firearm in public in Philadelphia, unauthorized
(Footnote Continued Next Page)
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The trial court detailed the factual and procedural background of this
case, an abridged recitation of which is as follows.
[Appellant] and four (4) other individuals committed
a series of gunpoint robberies in a span of seven
days in South Philadelphia.
On October 16, 2013, a co-defendant stole a
vehicle located on 1600 Pratt Street, Philadelphia,
Pennsylvania that would be used by [Appellant] and
the other individuals to drive around South
Philadelphia to commit these crimes. … [Appellant]
was charged with receiving stolen property and
unauthorized use of that motor vehicle.
The first gunpoint robbery took place on
October 17, 2013. [Appellant] and a co-defendant
approached the complainant at 11 p.m. at night.
The co-defendant carried a gun and [Appellant]
stated, “Turn around and keep walking or we’ll shoot
you.” [Appellant] later gave a statement admitting
to robbing and holding up the complainant at
gunpoint.
The second robbery took place on October 19,
2013. [Appellant] and two other males approached
the complainant. One of the co-defendants pistol-
whipped the complainant in the head while
[Appellant] and the other male went through the
complainant’s pockets. [Appellant] admitted to
participating in the robbery and going through the
complainant’s pockets in a statement made to police.
The third robbery took place that same
morning of October 19, 2013, … at 8:07 a.m. at 737
East Passyunk Avenue, Philadelphia, Pennsylvania.
[Appellant] and a co-defendant approached a
_______________________
(Footnote Continued)
use of a motor vehicle and recklessly endangering another person. Trial
Court Opinion, 6/23/15, at 1-2.
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female. The co-defendant pulled the gun and
[Appellant] stated to the complainant, “Where’s your
money?” The complainant later identified
[Appellant] in a photo array and [Appellant]
admitted to the robbery in his statement to police.
The fourth robbery took place at 5:25 a.m. on
October 22, 2013. [T]he complainant was
approached by two males that knocked her to the
ground and went through her pockets. The
complainant later identified [Appellant] in a photo
array and stated that [Appellant] was the one
holding the gun.
At the time of sentencing, [Appellant’s] prior
record score was a five (5) and the offense gravity
score for the leading offense was a ten (10). The
standard range for the leading offense, a robbery in
which [Appellant] possessed and held a gun, was
seventy-eight (78) to ninety (90) months, plus or
minus twelve (12) months. The standard range for
the other three (3) robberies was sixty-nine (69) to
eighty-one (81) months plus or minus twelve (12)
months.
The Commonwealth presented the testimony of
Brian Kysela, who was [a robbery] victim. Mr.
Kysela stated on the evening in question he and his
wife were coming home in a taxi at about 11:00 p.m.
His wife went up before him. As he was crossing the
road to get into his house he heard someone run up
behind him. Mr. Kysela turned around to a gunman.
The gunman took money that Mr. Kysela had in his
hand from the cab along with Mr. Kysela’s house
keys. The gunman then asked Mr. Kysela what else
he had in his pocket. Mr. Kysela gave him his
driver’s license, credit card, and Zip car membership
card.
At that point, [Appellant] ran up to them, told
the gunman to ask for his phone, and then
demanded “Give us your phone.” Mr. Kysela took
out his cell phone and the gunman took it.
[Appellant] then patted down Mr. Kysela’s pockets,
front and back, grabbed Mr. Kysela’s wife’s jacket
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and Mr. Kysela’s jacket out of his arms, went
through them to find nothing and then threw them in
the gutter. Mr. Kysela was then threatened to turn
around and keep walking or “we will shoot you.”
When Mr. Kysela hesitated, [Appellant] stated he
had a gun. Mr. Kysela kept walking and then they
left. Mr. Kysela then went into his house as this
happened outside his front door.
Mr. Kysela testified that this crime had a great
effect on him and his wife. He stated that neither of
them felt safe because he was robbed right outside
of his house, right outside of his door. He did not
feel safe anywhere in the city. Both he and his wife
changed jobs and left the city as a result. Prior to
this incident, they had lived in the city for five (5)
years. He also stated that it has been difficult for
him and his wife to live with this violent crime.
The Commonwealth also read the victim
impact statement of Anna Maria Gorraglia. Ms.
Gorraglia testified at the sentencing of a co-
defendant in front of a judge stating:
Last year in October I was robbed at gunpoint
by two young men. One pointed a gun at my
chest while the other one, the defendant,
demanded my purse. Even though I handed
him my purse he threatened me with, You
better have some money here. It probably
wasn’t that long but it seemed like a lifetime.
The things that were going through my head
was I’m going to die today. This is it. It’s
over. I’ll never see my children again. Maybe
if they shoot me in the back, I’ll survive. The
defendant demanded [that I] turn around. I
thought they were going to shoot me in my
back. This event not only impacted my life,
but my daughter’s life. My daughter was
supposed to be with me that day because she
overslept. If she was with me things may have
been very different. When I came home my
daughter started immediately crying. She
slept with me for weeks. We were both scared
to go outside for a long time. I was scared of
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anybody with a hood on and felt like the
outside was a war zone. It was six months
before I let my daughter walk anywhere alone
again. She had gotten very depressed and
wasn’t eating. I had to take her to the doctor
two different times. I used to walk to work,
but I no longer do because I am afraid. That
route was a shortcut and now I take public
transportation. Now I have to spend my
money and do not get my morning exercise.
The defendant has not only robbed the
material possessions of mine but, also, has
taken my freedom.
[Appellant] exercised his right of allocution and
apologized to his victims, stating:
I have remorse for my victims because I only
did – I affected their lives harshly. I affected
mine harshly, too. I’m going – I’m – I’m – I’m
basically – I’m going through something most
people don’t go through right now. I may have
put myself here in this predicament, but there
are certain things – it’s life changing. I don’t –
I can’t speak right now.
This [trial c]ourt sentenced [Appellant] to four
(4) to eight (8) years of incarceration plus one (1) to
two (2) years on the aggravated robbery conspiracy,
to run consecutively.
On … the VUFA charges 6105 and 6106, the
[trial c]ourt sentenced [Appellant] to four (4) to
eight (8) years plus one (1) to two (2) years to run
consecutively. The [trial c]ourt sentenced
[Appellant] to a straight four (4) to eight (8) years
on the aggravated assault, robbery and conspiracy.
All three … run concurrently with one another.
[The trial c]ourt sentenced [Appellant] to five
(5) to ten (10) years on the aggravated assault,
robbery and one (1) to two (2) years on the VUFA
6105 and 6106 to run consecutive to the other
sentences. [Appellant] was sentenced to one (1) to
two (2) years also to run consecutive to the other
sentences. In total, [Appellant] was sentenced to
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eleven (11) to twenty-two (22) years of
incarceration and ordered to pay $1050.91 in
restitution.
Trial Court Opinion, 6/23/15, at 2-7 (internal citations omitted).
On December 11, 2014, Appellant filed a motion for reconsideration,
which, after a hearing, the trial court denied on February 10, 2015.
Appellant filed a timely notice of appeal on March 6, 2015. 2
On appeal, Appellant presents one issue for our review.
Whether the trial court erred by imposing an
“excessive sentence” violating the Pennsylvania
Sentencing Code, 42 Pa. C.S. §9701 et. seq. by not
following the general principle that the sentence
imposed should call for 1) confinement consistent
with the protection of the public; 2) the gravity of
the offense as it relates to the impact on the life of
the victim; and 3) the rehabilitative needs of
[Appellant], and amounted to an abuse of discretion.
See, 42 Pa. C.S. §9721(B)?
Appellant’s Brief at 3.
At the outset, we 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
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea,
he or she 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 forwards an argument pertaining to the
discretionary aspects of the 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).
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.
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(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 2. 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
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).
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In this case, Appellant avers that the trial court abused its discretion
based on the following claims.
The trial court erred by imposing an “excessive
sentence” violating the Pennsylvania Sentencing
Code, 42 Pa. C.S. §9701 et. seq. by not following the
general principle that the sentence imposed should
call for 1) confinement consistent with the protection
of the public; 2) the gravity of the offense as it
relates to the impact on the life of the victim; and 3)
the rehabilitative needs of [Appellant], and
amounted to an abuse of discretion. See, 42 Pa.
C.S. §9721(B) …
The Sentence imposed was unreasonable and
pursuant to the Pennsylvania Sentencing Code, in
that total confinement for a period of 11 to 22 years
is an excessive sentence. [Appellant] is “amenable
to drug treatment” and vocational training, and
rehabilitation.
Appellant’s Pa.R.A.P. 2119(f) Statement, Appellant’s Brief at 2; see also
Appellant’s Statement of the Question Involved, id. at 3.
This Court has long recognized that “an allegation that a sentencing
court … did not adequately consider certain factors does not raise a
substantial question that the sentence was inappropriate.” Commonwealth
v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d
1280 (Pa. 2009); see also Commonwealth v. Bullock, 868 A.2d 516, 529
(Pa. Super. 2005). Furthermore, this Court has held that an argument that
the trial court failed to consider certain mitigating factors in favor of a lesser
sentence does not present a substantial question appropriate for our review.
Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011);
accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
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Consequently, Appellant has failed to a raise a substantial question for our
review.3 See Edwards, supra.
Based on the foregoing, we deny Appellant’s petition for permission to
appeal the discretionary aspects of his sentence, and affirm the trial court’s
December 2, 2014 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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3
Even if we were permitted to address the merits, Appellant would not be
entitled to relief. We note that the trial court provided detailed reasoning for
its sentence, including its statement that it “chose to impose a mitigated
guideline state sentence to permit [Appellant’s] release from custody at a
relatively young age but a term of incarceration to provide assurance that he
is rehabilitated from the tendencies which caused him to resort to crime.
Additionally, based on [Appellant’s] age and needs for treatment, the [trial
c]ourt recommended SCI-Chester.” Trial Court Opinion, 6/23/15, at 10,
citing N.T., 12/2/14, at 30 (emphasis added).
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Com. v. Pompeii, N.
Combined Opinion