J-S50028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW JONES
Appellant No. 2007 EDA 2014
Appeal from the Judgment of Sentence April 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002036-2013
CP-51-CR-0002663-2013
CP-51-CR-0006165-2013
CP-51-CR-0010947-2012
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 13, 2015
Appellant, Matthew Jones, appeals from the April 17, 2014 aggregate
judgment of sentence of 35 to 100 years’ imprisonment, imposed after an
open guilty plea to a multitude of charges stemming from four violent rapes
committed by Appellant in the city of Philadelphia. After careful review, we
affirm.
In its opinion pursuant to Pennsylvania Rule of Appellate Procedure
1925, the trial court has accurately recounted the factual background, as set
forth by the Commonwealth at Appellant’s guilty plea hearing, which we
incorporate herein. See Trial Court Opinion, 12/29/14, at 3-6. The trial
court has further summarized the procedural history of this case as follows.
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On July 9, 2013, [Appellant] pled guilty to
certain charges on the four above-captioned [docket
numbers]. [At docket number] CP-51-CR-0010947-
2012, [Appellant] plead guilty to rape by forcible
compulsion,1 involuntary deviate sexual intercourse
(“IDSI”),2 and simple assault.3 On [docket number],
CP-51-CR-0002036-2013 [Appellant] pled guilty to
rape, IDSI, unlawful restraint – causing serious
bodily injury,4 simple assault, and possession of an
instrument of a crime (“PIC”).5 On [docket number]
CP-51-CR-0002663-2013, [Appellant] pled guilty to
rape, conspiracy to commit rape by forcible
compulsion,6 and simple assault. Finally, on [docket
number] CP-51-CR-0006165-2013, [Appellant] pled
guilty to rape and aggravated assault.7 The [trial]
court deferred sentencing and ordered a pre-
sentence investigation (“PSI”) and an assessment by
the Sexual Offenders Assessment Board (“SOAB”).
On April 17, 2014,8 the [trial] court held a hearing
pursuant to 42 Pa.C.S.[A.] § 9799.24 to determine if
[Appellant] met the statutory criteria for
classification as a sexually violent predator (“SVP”).
[Appellant] was evaluated by SOAB member Barry
Zakireh, Ph.D., who concluded that [Appellant] did
meet the criteria for classification as an SVP. The
Commonwealth and defense counsel stipulated to
the report prepared by Dr. Zakireh. [] After a
hearing, the [trial] court found [Appellant] to be an
SVP. The [trial] court then sentenced [Appellant] on
all four [dockets] to 35 to 100 years of incarceration.
1
18 Pa.C.S. § 3121.
2
18 Pa.C.S. § 3123.
3
18 Pa.C.S. § 2701. On [docket number] CP-51-CR-
0010947-2012, [Appellant] was arrested on August
29, 2012. His DNA was added to the Combined DNA
Index System (“CODIS”). Once added to CODIS,
[Appellant]’s DNA matched DNA submissions from
three earlier rape cases, which were also subject to
[Appellant]’s appeal: CP-51-CR-0002036-2013; CP-
51-CR-0002663-2013; and CP-51-CR-0006165-
2013.
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4
18 Pa.C.S. § 2902.
5
18 Pa.C.S. § 907
6
18 Pa.C.S. § 903.
7
18 Pa.C.S. § 2702.
8
Sentencing was originally scheduled for October 24,
2013. Following multiple continuance requests,
sentencing was rescheduled for April 17, 2014.
Id. at 1-2 (footnotes in original).
Specifically, Appellant was sentenced as follows. At docket number
CP-51-CR-10947-2012, Appellant was sentenced to 5 to 15 years’
imprisonment for rape, a consecutive 5 to 15 years’ imprisonment for IDSI,
and a concurrent 1 to 2 years for simple assault. N.T., 4/17/14, at 63; CP-
51-CR-10947-2012 Sentencing Order, 4/17/14. At docket number CP-51-
CR-2663-2013, Appellant was sentenced to 5 to 15 years’ imprisonment for
rape, a consecutive 3 to 6 years’ imprisonment for conspiracy, and a
concurrent 1 to 2 years for simple assault. Id.; CP-51-CR-2663-2013
Sentencing Order, 4/17/14. At docket number CP-51-CR-2036-2013,
Appellant was sentenced to 5 to 15 years’ imprisonment for rape, a
consecutive 5 to 15 years’ imprisonment for IDSI, and concurrent sentences
of 1 to 2 years for unlawful restraint, 1 to 2 years for simple assault, and 2
to 4 years for PIC. Id. at 63-64; CP-51-CR-2036-2013 Sentencing Order,
4/17/14. Finally, at docket number CP-51-CR-6165-2013, Appellant was
sentenced to 5 to 15 years’ imprisonment for rape, and a consecutive 2 to 4
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years for aggravated assault. Id. at 64; CP-51-CR-6165-2013 Sentencing
Order, 4/17/14. The sentence at each docket was to run consecutive to all
other dockets for an aggregate sentence of 35 to 100 years’ imprisonment.
On April 28, 2014, Appellant filed timely a post-sentence motion,
which was denied by the trial court on July 2, 2014.1 On July 10, 2014,
Appellant filed a timely notice of appeal.2
On appeal, Appellant raises the following issues for our review.
1. Did not the [trial] court err and abuse its
discretion by imposing an aggregate de facto life
sentence of 35 to 100 years, where [A]ppellant pled
guilty, had substantial family support, and his prior
record was limited to one juvenile adjudication for a
non-violent misdemeanor?
2. Did not the [trial] court err and abuse its
discretion at sentencing by failing to consider
[A]ppellant’s rehabilitative needs?
3. Did not the [trial] court err and abuse its
discretion at sentencing by relying on the fact that
[A]ppellant exercised his right to a preliminary
hearing in these cases before ultimately pleading
guilty?
Appellant’s Brief at 3.
____________________________________________
1
However, because the last day in which to file a timely post-sentence
motion, April 27, 2014, fell on a Sunday, Appellant’s post-sentence motion
was timely filed. See 1 Pa.C.S.A. § 1908 (providing that when the last day
of a calculated period of time falls on a Saturday or Sunday, such days shall
be omitted from the computation).
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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At the outset, we note that all of Appellant’s arguments on appeal
pertain 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 14-15. 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).
Instantly, in his first two issues, Appellant argues that his sentence is
a de facto life sentence because the trial court failed to consider his
“negligible prior record and the substantial evidence of his acceptance of
responsibility, expressions of remorse, potential for rehabilitation, and strong
family support.” Appellant’s Brief at 15. A claim that consecutive sentences
resulted in an excessive sentence, and that the sentencing court
“disregarded rehabilitation and the nature and circumstances of the offense
in handing down its sentence presents a substantial question.”
Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014). Further, Appellant’s claim that the trial
court relied on impermissible factors in imposing its sentence, raises a
substantial question. Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa.
Super. 2006), appeal denied, 906 A.2d 542 (Pa. 2006). Accordingly, we
review the merits of Appellant’s sentencing issues.
We begin by noting our well-settled standard of review.
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. In this context, an abuse of discretion is
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not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
Appellant’s claim that the trial court failed to consider the above-
mentioned mitigating factors is belied by the record.
The Court has considered [Appellant’s]
presentence investigation report; the … appropriate
parts of the Commonwealth’s sentencing
memorandum; [Appellant’s] sentencing memo; the
argument of counsel; the Court has considered the
testimony of Holly Peters; the testimony and the
letters submitted from Deborah Jones; Ziesha Jones;
Harriet Lawson and the letter from [Appellant’s]
stepfather, John Norris, and the Court considered
[Appellant’s] allocution.
In fashioning a sentence the Court has
considered that [Appellant] pled guilty, that he had
no prior record, that he shows remorse and that he
has family support.
The Court has also found that these crimes
were more serious than usual, that [Appellant] is a
danger to society and that he inflicted extreme
physical and mental cruelty on the victims, that he
injured the victims, that he’s a poor candidate for
rehabilitation and a lesser sentence would be
inappropriate.
I have also considered the statutory factors
that are required, the need for the protection of the
public, the gravity of the offense in relation to the
impact on the victims and the rehabilitative needs of
[Appellant].
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N.T., 4/17/14, at 61-62.
Further, it is axiomatic that where “the sentencing court had the
benefit of a [PSI], we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal quotation marks and
citation omitted), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied,
Rhoades v. Pennsylvania, 132 S. Ct. 1746 (2012). Additionally, in its
Rule 1925(a) opinion, the trial court spent five pages discussing the factors
it took into consideration, along with the facts surrounding the violent crimes
for which Appellant “pled guilty to raping and physically assaulting four
unsuspecting strangers.” See Trial Court Opinion, 12/29/14, at 11-16.
Upon review, we conclude the trial court weighed all factors and sentenced
Appellant in accordance with the nature and extent of his crimes.3
Finally, Appellant avers that the trial court abused its discretion, when
it “impermissibly relied on the fact that [Appellant] did not waive his
____________________________________________
3
We note with disfavor Appellant’s failure to cite the applicable sentencing
guidelines and what provision of the sentencing code was violated. See
Dodge, supra at 1271 (“disapprov[ing] of Appellant’s failure to indicate
where his sentences fell in the sentencing guidelines and what provision of
the sentencing code was violated[]”). We further note that the
Commonwealth has objected to this omission in its brief. Commonwealth’s
Brief at 10. Nevertheless, because Appellant has adequately preserved his
arguments in his Rule 2119(f) statement, we decline to find waiver.
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preliminary hearings[.]” Appellant’s Brief at 15. In its Rule 1925(a) opinion,
the trial court addressed Appellant’s contention, and explained as follows.
At the sentencing hearing, [Appellant] argued
that he saved the court numerous resources.
Specifically, [Appellant] argued that he had waived
his right to a trial, declined to file any motions to
sever or suppress, and declined to elicit any expert
forensic testimony. The court sought to clarify the
resources [Appellant] was claiming to have saved by
asking, “He didn’t waive his preliminary hearing,
correct?” This was the only reference to
[Appellant]’s non-waiver of his preliminary hearings
that the court made during sentencing. [Appellant]
seems to suggest that the court’s inquiry as to
whether he had waived his preliminary hearing was
made to hold his failure to do so against him. To the
contrary, the court was inquiring as to the extent to
which [Appellant] had saved the court resources.
The record makes clear that [Appellant]’s decision to
save the court resources by waiving his right to a
trial was included in the list of factors the court
considered before sentencing. The court wanted
only to ensure that the extent and nature of those
resources was accurately represented. Therefore,
[Appellant]’s claim is without merit.
Trial Court Opinion, 12/29/14, at 10 (internal citations omitted).
Accordingly, we conclude Appellant’s discretionary aspects of sentencing
claims are meritless.
Based on the foregoing, we conclude the trial court did not abuse its
discretion in sentencing Appellant. See Raven, supra. Accordingly, the
trial court’s April 17, 2014 judgment of sentence is affirmed.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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