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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S50028-15



            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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J-S50028-15


         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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J-S50028-15


            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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J-S50028-15



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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J-S50028-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015




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