J-S21036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(unpublished memorandum at 2-3).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




____________________________________________


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


____________________________________________


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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