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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S63027-15


          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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J-S63027-15


          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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J-S63027-15


                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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J-S63027-15


              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
____________________________________________


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




____________________________________________


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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