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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DERRELL DONERICK MATHEWS, :
:
Appellant : No. 1424 WDA 2016
Appeal from the Judgment of Sentence September 9, 2016
in the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000674-2015
BEFORE: LAZARUS, DUBOW, and STRASSBURGER*, JJ
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 30, 2017
Derrell Donerick Mathews (Appellant) appeals from the judgment of
sentence imposed following his convictions for aggravated assault with a
deadly weapon and simple assault. We affirm.
While an inmate at the Pennsylvania State Correctional Institution –
Fayette, Appellant struck his cellmate in the head with a sock filled with
rocks and, as a result, was charged with the aforementioned offenses, and
was convicted following a jury trial on August 4, 2015. On that date, the
trial court sentenced him to an aggregate term of three and one half to
seven years of incarceration. Appellant timely filed a post-sentence motion
for modification of sentence, which was denied on August 18, 2015.
Appellant filed a timely appeal to this Court in which he raised three issues:
*
Retired Senior Judge assigned to the Superior Court.
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1. Did the Commonwealth fail to present sufficient evidence to
disprove beyond a reasonable doubt that Appellant acted in
self defense?
2. Did the trial court err in granting the Commonwealth’s motion
to amend the criminal information to add the charge of
aggravated assault, 18 Pa.C.S.[] § 2702(a)(4) following jury
selection and minutes before the trial began?
3. Did the sentencing court impose a harsh, severe, and
manifestly unreasonable and excessive sentence in light of
the circumstances surrounding the alleged incident?
Commonwealth v. Mathews, 153 A.3d 1119 (Pa. Super. 2016)
(unpublished memorandum at 2-3).
On June 24, 2016, a panel of this Court affirmed Appellant’s
convictions, but vacated his judgment of sentence after finding that the trial
court abused its discretion by sentencing Appellant inadvertently in the
aggravated range after failing to apply properly the sentencing guidelines.
Id. The case was remanded for resentencing.
On September 9, 2016, the trial court re-sentenced Appellant to an
aggregate term of three and one half to seven years of incarceration.
Appellant timely filed a post-sentence motion, which was denied by the court
on September 20, 2016. This timely appeal followed. Both Appellant and
the trial court complied with the mandates of Pa.R.A.P. 1925.
In this appeal, Appellant raises the following issues for our review.
1. Did the Commonwealth fail to present sufficient evidence to
disprove beyond a reasonable doubt that Appellant acted in
self[-]defense?
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2. Did the trial court err in granting the Commonwealth’s motion
to amend the criminal information to add the charge of
aggravated assault, 18 Pa.C.S.[] § 2702(a)(4) following jury
selection and minutes before the trial began?
3. Did the sentencing court impose a harsh, severe, and
manifestly unreasonable and excessive sentence considering
the circumstances surrounding the incident?
Appellant’s Brief at 8.
Appellant’s first two issues are identical to those decided in the first
appeal in this matter. Subject to exceptions not applicable here, under the
doctrine of the law of the case, Appellant is not entitled to relitigate this
Court’s prior determination. See Commonwealth v. Gacobano, 65 A.3d
416, 420 (Pa. Super. 2013) (“[U]nder the doctrine of the law of the case,
when an appellate court has considered and decided a question submitted to
it upon appeal, it will not, upon a subsequent appeal on another phase of the
case, reverse its previous ruling[.]”) (citation omitted). Accordingly, we will
not consider Appellant’s first two issues.
In his third issue, Appellant challenges the discretionary aspects of his
sentence.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
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substantial question that the sentence is appropriate under
the sentencing code…. [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal, he sought reconsideration of his sentence in a post-
sentence motion, and he has included a Rule 2119(f) statement in his brief
to this Court. We now consider whether he 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. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
In his 2119(f) statement, Appellant advances three claims that he
believes raise a substantial question. First he argues that his sentence,
which fell into the standard range of the applicable guidelines and was
ordered to run consecutively to an eight-to-16-year sentence Appellant is
presently serving, is unreasonable and excessive “when considering
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Appellant’s rehabilitative needs.” Appellant’s Brief at 19. Appellant does not
elaborate on what his rehabilitative needs are, nor does he contend that the
court entirely failed to examine those needs. This amounts to a claim that
the sentencing court failed to give as much weight as Appellant would have
wished to mitigating factors. Such a claim does not present a substantial
question for our review.1 Disalvo, 70 A.3d at 903 (“[A] claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” (citation and quotation marks omitted)).
Next, Appellant argues that the “imposition of a consecutive sentence
is disproportionate to the alleged crime.” Appellant’s Brief at 19. This claim
also does not present a substantial question. See Commonwealth v.
Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (“Generally, Pennsylvania law
affords the sentencing court discretion to impose its sentence concurrently
or consecutively to other sentences being imposed at the same time or to
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1
Although a sentencing court’s failure to consider altogether the mitigating
factors does present a substantial question, Commonwealth v. Raven, 97
A.3d 1244, 1253 (Pa. Super. 2014), the sentencing court here had the
benefit of a presentence investigation report and thus is presumed to have
considered all relevant information. Commonwealth v. Boyer, 856 A.2d
149, 154 (Pa. Super. 2004).
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sentences already imposed. Any challenge to the exercise of this discretion
ordinarily does not raise a substantial question.”)2
Finally, Appellant argues that “the sentencing court failed to consider
the general principles relating to sentencing as more fully set forth in 42
Pa.C.S. § 9721.” Appellant’s Brief at 19 (unnecessary capitalization omitted).
Once more, this is a bald claim of excessiveness, which does not establish a
substantial question. Commonwealth v. Malovich, 903 A.2d 1247, 1252
(Pa. Super. 2006) (citing Commonwealth v. Mouzon, 812 A.2d 626, 627
(Pa. 2002) (“Appellant must support his assertions by articulating the way in
which the court’s actions violated the sentencing code”). Accordingly, none
of Appellant’s claims warrants review by this Court. Thus, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2017
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2
Even if this claim had raised a substantial question consecutive sentences,
like the one imposed here, may provide incentive to prisoners to refrain from
violence while incarcerated.
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