J-S58026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HARVEY L. MATTHEWS, JR.,

                            Appellant                No. 531 MDA 2015


         Appeal from the Judgment of Sentence of December 2, 2014
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0001241-2014


BEFORE: GANTMAN, P.J., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED NOVEMBER 05, 2015

       Appellant, Harvey L. Matthews, Jr., appeals from the judgment of

sentence entered on December 2, 2014, following his guilty pleas to simple

assault, disorderly conduct, and harassment.1   We affirm.

       We summarize the factual and procedural history of this case as

follows. On October 27, 2014, Appellant entered an open guilty plea to the

aforementioned offenses following an incident in which he was observed

slamming his paramour’s head onto the pavement. On December 2, 2014,

the trial court sentenced Appellant to one to two years in state prison for

simple assault and six to 12 months in state prison for disorderly conduct.

Appellant received a fine for his harassment conviction. In addition, the trial

____________________________________________


1
    18 Pa.C.S.A. §§ 2701(a)(1), 5503(a)(1), and 2709(a)(1), respectively.



* Retired Senior Judge assigned to the Superior Court.
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court ordered a mental health evaluation and directed that any resulting

recommended treatment be completed in prison.          It further ordered no

drugs, no alcohol, and the completion of a domestic violence intervention

program and counseling.

      On December 12, 2014, Appellant filed a pro se motion to reconsider

his sentence, seeking the imposition of concurrent punishments. On January

28, 2015, newly appointed counsel filed an amended motion to reconsider

sentence.   The Commonwealth filed an answer to Appellant’s motion on

February 9, 2015 and the court denied relief on February 20, 2015.

      Appellant filed a timely notice of appeal on March 20, 2015. On March

23, 2015, the trial court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Appellant

complied timely on April 10, 2015.        The trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a) on April 21, 2015.

      On appeal, Appellant raises a single issue for our review:

        Whether the imposition of an aggregate sentence of [18 to
        36] months['] incarceration was excessive given [Appellant’s
        circumstances]?

Appellant’s Brief at 4.

      “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.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an



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automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).      Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

        To reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        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. [708]; (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).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007). As previously

noted, Appellant filed a timely notice of appeal.      Moreover, the issue

Appellant presents on appeal was properly preserved in counsel’s amended

post-sentence motion.     Appellant’s brief also has a statement pursuant to

Pa.R.A.P. 2119(f).      Thus, we turn to whether the appeal presents a

substantial question.

      As we have explained:

        The determination of whether a particular case raises a
        substantial question is to be evaluated on a case-by-case
        basis. Generally, however, in order to establish that there
        is a substantial question, the appellant must show actions
        by the sentencing court inconsistent with the Sentencing
        Code or contrary to the fundamental norms underlying the
        sentencing process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).


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      Appellant's position is that he has raised a substantial question since

the imposition of an aggregate sentence of 18 to 36 months’ incarceration

(predicated upon the consecutive punishments ordered by the trial court) is

excessive given his particular circumstances, including his rehabilitative

needs.   See Appellant’s Brief at 7.       We have determined, in limited

circumstances, that similar claims raise a substantial question.          See

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (“To

make it clear, a defendant may raise a substantial question where he

receives consecutive sentences within the guideline ranges if the case

involves circumstances where the application of the guidelines would be

clearly unreasonable, resulting in an excessive sentence; however, a bald

claim of excessiveness due to the consecutive nature of a sentence will not

raise a substantial question.”); see also Commonwealth v. Moury, 992

A.2d 162, 171–172 (Pa. Super. 2010) (“The imposition of consecutive,

rather than concurrent, sentences may raise a substantial question in only

the most extreme circumstances, such as where the aggregate sentence is

unduly harsh, considering the nature of the crimes and the length of

imprisonment.”).    Assuming, without deciding, that Appellant raises a

substantial question, we are confident that Appellant is not entitled to relief

on the substantive merit of his discretionary sentencing claims.

      In sentencing Appellant, the trial court was required to “consider the

general principles and standards of the Sentencing Code.” Commonwealth




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v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses

these general principles in the following manner:

          the sentence imposed should call for confinement that is
          consistent with the protection of the public, the gravity of
          the offense as it relates to the impact on the life of the
          victim and on the community, and the rehabilitative needs
          of the defendant.

42 Pa.C.S.A. § 9721(b).

        In this case, the trial court specifically examined the factors under

Section 9721 and fashioned an individualized sentence according to its

findings.   The court determined that Appellant presented a danger to the

community because of his lengthy criminal history, which includes multiple

prior assaults upon women.           It was also established at Appellant’s

sentencing hearing that the present assault occurred while Appellant was

under supervision for a prior instance of domestic violence. In addition, the

court    ordered   mental   health   evaluations   and   treatment   to   address

Appellant’s rehabilitative needs and observed that state prison officials could

monitor and address Appellant’s medical issues.          Lastly, while the court

determined that Appellant’s desires to care for his aging mother and to

attend his daughter’s graduation were admirable, his criminal history and

the risk he posed to society outweighed his pledges to be a better son and

father. These determinations find ample support in the certified record and

we discern no basis upon which to conclude that the trial court abused its

discretion in imposing Appellant’s consecutive sentences.

        Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2015




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