J-S17033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

DERRELL DONERICK MATHEWS

                               Appellant              No. 1311 WDA 2015


             Appeal from the Judgment of Sentence August 4, 2015
       in the Court of Common Pleas of Fayette County Criminal Division
                       at No(s):CP-26-CR-0000674-2015

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 24, 2016

        Appellant, Derrell Donerick Mathews, appeals from the judgment of

sentence to serve forty-two to eighty-four months’ imprisonment after a jury

found him guilty of, inter alia, aggravated assault-bodily injury with a deadly

weapon.1 Appellant claims (1) the evidence was insufficient to sustain the

verdict because the Commonwealth failed to disprove his claim of self

defense, (2) the trial court erred in amending the information to include the

charge of aggravated assault-bodily injury with a deadly weapon, and (3)

the trial court imposed an excessive sentence.      We affirm the convictions,

vacate the judgment of sentence, and remand for resentencing.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(4).
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        The facts underlying Appellant’s conviction are well-known to the

parties. It suffices to note that in October of 2012, Appellant was an inmate

in a state correctional institution and struck his cellmate on the head with a

sock filled with stones.       Appellant asserted that his cellmate, believing

Appellant was a homosexual, verbally threatened to kill him and fifteen

minutes before Appellant attacked him, brandished a toothbrush with a razor

blade attached to it.

        A criminal complaint against Appellant was filed on November 13,

2014, more than two years after the incident.             On June 9, 2015, the

Commonwealth filed an information charging Appellant with aggravated

assault-serious bodily injury,2 assault by a prisoner,3 simple assault,4 and

harassment.5


2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 2703. The information alleged that Appellant:

           [w]hile confined in . . . [a] state correctional institution . .
           . intentionally or knowingly committed an assault upon
           another with a deadly weapon or instrument or by means
           of force likely to produce serious bodily injury.

Count 2, Information, 6/9/14. As discussed below this charge was dismissed
and the charge of aggravated assault-bodily injury with a deadly weapon
was added to the information.
4
    18 Pa.C.S. § 2701(a).
5
  18 Pa.C.S. § 2709(a)(1). The Commonwealth withdrew the charge of
harassment immediately before trial.




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        Appellant proceeded to a jury trial on August 4, 2015.        After jury

selection, Appellant moved to dismiss the charges of assault by a prisoner

and simple assault based on the statute of limitations.6         N.T. Trial, 8/3-

8/4/15, at 11. The trial court dismissed the assault by a prisoner charge,

but denied Appellant’s motion to dismiss the simple assault charge. Id. at

16.    The Commonwealth then moved to amend the information to include

the charge of aggravated assault-bodily injury with a deadly weapon,7 which

the court granted over Appellant’s objection. Id. at 17-18.

        On August 4, 2015, the jury found Appellant guilty of aggravated

assault-bodily injury with a deadly weapon and simple assault, but acquitted

him of aggravated assault-serious bodily injury.      That same day, the trial

court sentenced Appellant to forty-two to eighty-four months’ imprisonment.

This timely appeal followed.8

        Appellant presents the following questions for review.

          Did the Commonwealth fail to present sufficient evidence
          to disprove beyond a reasonable doubt that Appellant
          acted in self defense?

          Did the trial court err in granting the Commonwealth’s
          motion to amend the criminal information to add the

6
    See 42 Pa.C.S. § 5552(a)-(b).
7
  We note assault by a prisoner and assault-bodily injury with a deadly
weapon are both graded as felonies of the second degree. See 18 Pa.C.S.
§§ 2702(b), 2703.
8
  Appellant complied with the trial court’s order to submit a Pa.R.A.P.
1925(b) statement.



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         charge of aggravated assault, 18 Pa.C.S.A. § 2702(a)(4)
         following jury selection and minutes before the trial began?

         Did the sentencing court impose a harsh, severe, and
         manifestly unreasonable and excessive sentence in light of
         the circumstances surrounding the alleged incident?

Appellant’s Brief at 7.

      Appellant first challenges the sufficiency of the evidence, contending

that the Commonwealth failed to rebut his assertion of self-defense.        He

argues that he was reasonably in fear of death or serious bodily injury

because his cellmate threatened to kill him and brandished a weapon. Id. at

12-13. He emphasizes that his belief in the danger was reasonable because

he was aware that his cellmate was convicted of murder.              Id. at 13.

Additionally, Appellant asserts that he did not provoke his cellmate’s

threatening behavior, did not continue the difficulty with his cellmate, and

was under no duty to retreat because the incident occurred in their shared

cell. Id. at 13-14. No relief is due.

      The principles governing our review are well settled.

         According to our Supreme Court, the justified use of
         deadly force requires:

            a) the actor was free from fault in provoking or
            continuing the difficulty which resulted in the use of
            deadly force; b) the actor must have reasonably
            believed that he was in imminent danger of death or
            serious bodily injury, and that there was a necessity
            to use such force in order to save himself or others
            therefrom; and c) the actor did not violate any duty
            to retreat or to avoid the danger.

                                  *      *    *


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       If the defendant properly raises “self-defense under
       Section 505 of the Pennsylvania Crimes Code, [18 Pa.C.S.
       § 505,] the burden is on the Commonwealth to prove
       beyond a reasonable doubt that the defendant’s act was
       not justifiable self-defense.”

          The Commonwealth sustains this burden if it
          establishes at least one of the following: 1) the
          accused did not reasonably believe that he was in
          danger of death or serious bodily injury; or 2) the
          accused provoked or continued the use of force; or
          3) the accused had a duty to retreat and the retreat
          was possible with complete safety.

       The Commonwealth must establish only one of these three
       elements beyond a reasonable doubt to insulate its case
       from a self-defense challenge to the evidence.     The
       Commonwealth can negate a self-defense claim if it
       proves the defendant did not reasonably believe he
       was in imminent danger of death or great bodily
       injury and it was necessary to use deadly force to
       save himself from that danger.

                                *    *    *

          When the defendant’s own testimony is the only
       evidence of self-defense, the Commonwealth must still
       disprove the asserted justification and cannot simply rely
       on the jury’s disbelief of the defendant’s testimony:

          The “disbelief of a denial does not, taken alone,
          afford affirmative proof that the denied fact existed
          so as to satisfy a proponent's burden of proving that
          fact.” The trial court’s statement that it did not
          believe [a defendant’s] testimony is no substitute for
          the proof the Commonwealth was required to
          provide to disprove the self-defense claim.

       If there are other witnesses, however, who provide
       accounts of the material facts, it is up to the fact finder to
       “reject or accept all, part or none of the testimony of any
       witness.” The complainant can serve as a witness to the
       incident to refute a self-defense claim. “Although the


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        Commonwealth is required to disprove a claim of self-
        defense arising from any source beyond a reasonable
        doubt, a [fact-finder] is not required to believe the
        testimony of the defendant who raises the claim.”

                                *       *   *

           The standard we apply in reviewing the sufficiency of
           the evidence is whether viewing all the evidence
           admitted at trial in the light most favorable to the
           verdict winner, there is sufficient evidence to enable
           the fact-finder to find every element of the crime
           beyond a reasonable doubt. In applying [the above]
           test, we may not weigh the evidence and substitute
           our judgment for the fact-finder. In addition, we
           note that the facts and circumstances established by
           the Commonwealth need not preclude every
           possibility of innocence. Any doubts regarding a
           defendant’s guilt may be resolved by the fact-finder
           unless the evidence is so weak and inconclusive that
           as a matter of law no probability of fact may be
           drawn from the combined circumstances. . . .
           Moreover, in applying the above test, the entire
           record must be evaluated and all evidence actually
           received must be considered. Finally, the [finder] of
           fact while passing upon the credibility of witnesses
           and the weight of the evidence produced, is free to
           believe all, part or none of the evidence.

Commonwealth v. Smith, 97 A.3d 782, 787-88, 790 (Pa. Super. 2014)

(citations omitted) (emphasis added).

     Instantly, Appellant focuses on the evidence in support of his claim of

self-defense. However, our review reveals that Appellant’s cellmate denied

threatening Appellant.   See N.T. Trial at 32, 41.      Moreover, although

Appellant asserted that his cellmate threatened him with an improvised

weapon, the Commonwealth adduced testimony that no contraband, other

than the rock-filled sock, was found after the incident.    See id. at 56.


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Lastly, it was undisputed that Appellant attacked his cellmate as his cellmate

was returning to the cell from the shower.          Thus, the Commonwealth

presented a sufficient factual basis to negate one element of Appellant’s

claim of self-defense, namely, that he reasonably believed the alleged threat

of death or serious bodily injury was imminent. See Smith, 97 A.3d at 787-

88, 790.    Accordingly, Appellant’s sufficiency of the evidence challenge

warrants no relief.

      Appellant next contends the trial court erred in adding the charge of

aggravated assault-bodily injury with a deadly weapon after jury selection.

Appellant argues the amendment did not correct a defect in form, but

“added an additional” charge that required proof of a new element, i.e., the

use of a deadly weapon.     Appellant’s Brief at 17.   He asserts he suffered

undue prejudice due to “the last minute amendment by the Commonwealth”

after jury selection. Id. We are constrained to disagree.

      The amendment of an information is governed by Pa.R.Crim.P. 564,

which states:

         The court may allow an information to be amended when
         there is a defect in form, the description of the offense(s),
         the description of any person or any property, or the date
         charged, provided the information as amended does not
         charge an additional or different offense. Upon
         amendment, the court may grant such postponement of
         trial or other relief as is necessary in the interests of
         justice.

Pa.R.Crim.P. 564. “[T]he purpose of Rule 564 is to ensure that a defendant

is fully apprised of the charges, and to avoid prejudice by prohibiting the last


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minute addition of alleged criminal acts of which the defendant is

uninformed.”    Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa.

Super. 2011).

        [W]hen presented with a question concerning the propriety
        of an amendment, we consider:

           [w]hether the crimes specified in the original
           indictment or information involve the same basic
           elements and evolved out of the same factual
           situation as the crimes specified in the amended
           indictment or information. If so, then the defendant
           is deemed to have been placed on notice regarding
           his alleged criminal conduct.      If, however, the
           amended provision alleges a different set of events,
           or the elements or defenses to the amended crime
           are materially different from the elements or
           defenses to the crime originally charged, such that
           the defendant would be prejudiced by the change,
           then the amended is not permitted.

        Additionally,

           [i]n reviewing a grant to amend an information, the
           Court will look to whether the [defendant] was fully
           apprised of the factual scenario which supports the
           charges against him. Where the crimes specified in
           the original information involved the same basis
           elements and arose out of the same factual situation
           as the crime added by the amendment, the appellant
           is deemed to have been placed on notice regarding
           his alleged criminal conduct and no prejudice to
           defendant results.

        Further, the factors which the trial court must consider in
        determining whether an amendment is prejudicial are:

           (1) whether the amendment changes the factual
           scenario supporting the charges; (2) whether the
           amendment adds new facts previously unknown to
           the defendant; (3) whether the entire factual
           scenario was developed during a preliminary


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              hearing; (4) whether the description of the charges
              changed with the amendment; (5) whether a change
              in defense strategy was necessitated by the
              amendment; and (6) whether the timing of the
              Commonwealth’s request for amendment allowed for
              ample notice and preparation.

            Most importantly, we emphasize that “the mere possibility
            amendment of information may result in a more severe
            penalty . . . is not, of itself, prejudice.”

Id. at 1202-03 (citations omitted).

      Instantly, we agree with the trial court that Appellant was apprised of

the basic factual scenario underlying the charges, namely, that he struck his

cellmate with a sock full of rocks. Moreover, Appellant was on notice that

the Commonwealth was prepared to assert that the sock constituted “a

deadly weapon” based on the allegation that he engaged in “an assault upon

another with a deadly weapon or instrument or by means of force likely to

produce serious bodily injury.”     See Count 2, Information; see also 18

Pa.C.S. § 2703; 18 Pa.C.S. § 2301 (defining “deadly weapon” as “any other

device or instrumentality which, in the manner in which it is used or

intended to be used, is calculated or likely to produce death or serious bodily

injury”).

      Further, Appellant’s undeveloped claim of prejudice does not warrant

relief. The facts of the instant case were relatively straightforward, as was

Appellant’s claim of justification. There is no indication that the amendment

necessitated a change in trial strategy or required additional preparation to

present a defense.        We acknowledge that the practical effect of the


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amendment was to avoid the dismissal of a second-degree felony charge

based on the statute of limitations. However, the record does not establish

Appellant lacked notice of the facts that gave rise to a charge of aggravated

assault-bodily injury with a deadly weapon or the Commonwealth’s intent to

show that Appellant used a deadly weapon.         Thus, finding no prejudice

attendant to the amendment of the information, we conclude no relief is

due. See Mentzer, 18 A.3d at 1202-03

     Appellant, in his final claim, asserts that the trial court’s sentence was

excessive.   In his Pa.R.A.P. 2119(f) statement, Appellant notes the forty-

two-to-eighty-four-month sentence fell at the top of the aggravated range of

the Sentencing Guidelines and was ordered to run consecutively with a

previously imposed sentence.     Appellant’s Brief at 18.     He asserts the

sentence was “inconsistent with his rehabilitative needs.” Id. According to

Appellant, the trial court also did not order a presentence investigation

report (“PSI”) and therefore “did not have an opportunity to adequately

evaluate the character of Appellant or his rehabilitative needs.”          Id.

Following our review, we conclude that a remand for resentencing is

required.

     It is well settled that

        [c]hallenges to the discretionary aspects of sentencing do
        not entitle an appellant to review as of right. An appellant
        challenging the discretionary aspects of his sentence must
        invoke this Court’s jurisdiction by satisfying a four-part
        test:



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            We conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal;
            (2) whether the issue was properly preserved at
            sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant's brief has a fatal
            defect; and (4) whether there is a substantial
            question that the sentence appealed from is not
            appropriate under the Sentencing Code.

        Objections to the discretionary aspects of a sentence are
        generally waived if they are not raised at the sentencing
        hearing or in a motion to modify the sentence imposed.

        The determination of what constitutes a substantial
        question must be evaluated on a case-by-case basis. 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) (citations

omitted).

     Instantly, Appellant filed a timely post-sentence motion asserting the

sentence was excessive in light of his rehabilitative needs.         He timely

appealed and included in his brief a Pa.R.A.P. 2119(f) statement. Therefore,

we proceed to consider whether his claim that the sentence was excessive

raises a substantial question. See id.

     Generally, an assertion that a trial court sentenced without appropriate

consideration of a defendant’s rehabilitative needs do not warrant review.

See id. at 936.      However, Appellant’s allegations that the court also

sentenced him in the aggravated range, misstated the Sentencing Guidelines



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ranges at the sentencing hearing, and did not have the benefit of a

presentence investigation report (“PSI”), do raise substantial questions.

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

“claim that the sentencing court misapplied the Sentencing Guidelines

presents a substantial question”); Commonwealth v. Felmlee, 828 A.2d

1105, 1107 (Pa. Super. 2003) (en banc) (finding “claim that the court erred

by imposing an aggravated range sentence without consideration of

mitigating circumstances raises a substantial question”); see generally

Commonwealth v. Simpson, 829 A.2d 334, 338-39 (Pa. Super. 2003)

(discussing factors for sentencing in the aggravated range of the Sentencing

Guidelines).

      We are mindful that Appellant did not object, either at the sentencing

hearing or in his post-sentence motion, to the court’s misstatement of the

Sentencing Guidelines or its failure to order a PSI.       Nevertheless, Appellant

consistently    maintained   that   the   trial   court   failed   to   consider   his

rehabilitative needs, and the trial court concedes it “misspoke” when setting

forth the standard range of the Sentencing Guidelines at the sentencing

hearing.       See Trial Ct. Op., 10/26/15, at 11 n.6.                  Under these

circumstances, we conclude that Appellant’s excessive sentence claim

warrants review. See Cook, 941 A.2d at 11; Simpson, 829 A.2d at 338-

39; Felmlee, 828 A.2d at 1107.

      When reviewing a sentence, we apply the following principles.



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       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 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.

       In reviewing a sentence on appeal, the appellate court
       shall vacate the sentence and remand the case to the
       sentencing court with instructions if it finds:

          (1) the sentencing court purported to sentence
          within the sentencing guidelines but applied the
          guidelines erroneously;

          (2) the sentencing court sentenced within the
          sentencing guidelines but the case involves
          circumstances where the application of the guidelines
          would be clearly unreasonable; or

          (3) the sentencing court sentenced outside the
          sentencing   guidelines and  the  sentence   is
          unreasonable.

          In all other cases[,] the appellate court shall affirm
          the sentence imposed by the sentencing court.

       “When imposing a sentence, a court is required to consider
       the particular circumstances of the offense and the
       character of the defendant.”     “In particular, the court
       should refer to the defendant’s prior criminal record, his
       age, personal characteristics and his potential for
       rehabilitation.”  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.” Further, where a
       sentence is within the standard range of the guidelines,
       Pennsylvania law views the sentence as appropriate under
       the Sentencing Code.



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Griffin, 65 A.3d at 937 (citations omitted).

      Instantly, at the request of Appellant’s counsel, the trial court

proceeded to sentencing the same day trial concluded, and the sentencing

hearing commenced twenty minutes after the verdict was entered. See N.T.

Trial, 8/4/15, at 123; N.T. Sentencing, 8/4/15, at 2 (unpaginated). The trial

court indicated that a member of the county Adult Probation Office was

present and that it reviewed Appellant’s prior record. N.T. Sentencing at 1.

It noted Appellant had sixteen prior convictions and that his most recent

conviction involved thirty-three total counts, most of which had been

withdrawn.    Id.   It calculated Appellant’s prior record score as five.   Id.

Although the applicable standard range minimum sentence was from twenty-

seven to thirty months, plus twelve months for aggravating factors, the

court stated the standard range minimum sentence was from forty to fifty-

two months. Id. After Appellant addressed the court, the court sentenced

him to forty-two to eighty-four months consecutive to the sentence he was

previously serving. Id. at 3. That sentence fell within the low end of the

standard range recited at the sentencing hearing.

      The trial court explained its sentence as follows:

         [W]e have taken into consideration the nature of this
         offense, the seriousness of aggravated assault, a felony of
         the second degree, which is punishable by a term of
         imprisonment of up to ten years. We have considered the
         numbers to which you have been found guilty. We’ve
         considered your prior record, taken into consideration your
         rehabilitative needs and the gravity of this offense. We
         feel that a lesser sentence would depreciate from the


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         seriousness of this crime and that you are in need of
         correctional treatment that can be provided most
         effectively to your commitment to an institution.

Id. at 3-4.

      Notably, the court did not state its intent to sentence within the

aggravated range. Further, we discern no support in the record to find that

the misstatement of the Sentencing Guidelines was otherwise harmless.

Therefore, the record does not support a conclusion that the trial court

properly applied the Sentencing Guidelines.     Accordingly, the sentence is

subject to vacation. See 42 Pa.C.S. § 9781(c)(1); Cook, 941 A.2d at 11;

Simpson, 829 A.2d at 339; Felmlee, 828 A.2d at 1107.

      In sum, we affirm the convictions, vacate the judgment of sentence,

and remand for resentencing.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2016




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