Com. v. Mathis, N.

J-S03034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORMAN MATHIS
Appellant No. 1368 EDA 2015
Appeal from the Judgment of Sentence October 22, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0900071-2005
CP-51-CR-1006931-2005
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 27, 2016
Appellant Norman Mathis appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following the
revocation of his probation for his possession with intent to deliver (“PWID”)1
and conspiracy2 convictions. We affirm.
The trial court set forth the relevant factual and procedural history of
this appeal as follows:
On February 27, 2004, [Appellant] was arrested and
charged with [PWID] and conspiracy. On June 9, 2004,
[Appellant] was again arrested and charged with PWID and
conspiracy. On November 3, 2005, [Appellant] pled guilty
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1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 903.
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to the charges resulting from these two arrests and was
sentenced by this [c]ourt to a negotiated sentence of 3 to
23 months[’] county incarceration plus 1 year [of]
probation on each docket, to run concurrently with one
another. On November 11, 2005, [Appellant] was arrested
and charged with aggravated assault and weapons
offenses. On June 6, 2006, these charges were
withdrawn. On July 31, 2006, [Appellant] appeared before
this [c]ourt for a violation hearing and this [c]ourt allowed
probation and parole to continue.
On June 20, 2007, [Appellant] was arrested and charged
with attempted murder, aggravated assault and weapons
offenses. On June 23, 2008, [Appellant] was arrested and
charged with providing false information to acquire a
firearm and conspiracy. On October 14, 2008, [Appellant]
pled guilty to aggravated assault and violations of the
Uniform Firearms Act (VUFA) [18 Pa.C.S. §§] 6105 and
6106, and was sentenced by the Honorable Willis Berry to
3½ to 7 years[’] state incarceration. On August 4, 2010,
[Appellant] was found guilty of providing false information
to acquire a firearm and conspiracy, and was sentenced by
the Honorable Gwendolyn Bright to 6 to 12 months[’]
county incarceration plus 4 years[’] probation.
On October 22, 2010, [Appellant] appeared before this
[c]ourt via video conference for a violation hearing.
[Appellant] was represented at the hearing by Michael
Garmisa, Esquire, while the Commonwealth attorney was
Noel DeSantis, Esquire. After this [c]ourt reviewed
[Appellant’s] criminal history, the probation officer, Hussan
Musallam (“Musallam”), recommended that probation be
revoked and a sentence of incarceration imposed due to
the two direct violations [Appellant] had incurred. Mr.
Garmisa acknowledged that [Appellant’s] direct violations
[] were serious in nature but noted that [Appellant] was
working, had enrolled in a GED program and had two
young children. Consequently, Mr. Garmisa requested that
this [c]ourt sentence [Appellant] to 1 to 2 years[’] state
incarceration, to run consecutively to the sentence
imposed by Judge Berry. (N.T. 10/22/2010, p. 7-10).
Ms. DeSantis requested that [Appellant] be sentenced to 5
to 10 years[’] state incarceration on each charge, to run
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concurrently with one another but consecutive to the
sentence imposed by Judge Berry. Ms. DeSantis noted that
[Appellant] pled guilty to a case in which he shot an
unarmed man multiple times and argued that he had
therefore increased his level of violence. Ms. DeSantis
further argued that [Appellant] knew that he was not
allowed to possess a firearm and that he provided false
information in order to acquire one. Ms. DeSantis further
noted that [Appellant] could potentially face up to 40 years
on the charges in the instant cases. [Appellant] next spoke
on his own behalf. [Appellant] apologized to this [c]ourt for
violating his probation and stated that he had learned from
the mistake[s] he had made. [Appellant] further stated
that he was currently enrolled in a GED program and had
taken violence prevention classes for six months. Id. at
10-12.
This [c]ourt found [Appellant] to be in direct violation and
terminated his parole and revoked his probation. On
docket CP-51-CR-0900071-2005, this [c]ourt sentenced
[Appellant] to 5 to 10 years[’ incarceration] on both the
PWID and conspiracy charges, to run concurrent with one
another. On docket CP-51-CR-1006931-2005, this [c]ourt
sentenced [Appellant] to 5 to 10 years[’] state
incarceration on both the PWID and conspiracy charges, to
run concurrently with one another but consecutive to the
sentences on the other docket, for a total aggregate term
of 10 to 20 years[’] state incarceration. Id. at 12-14.
On November 2, 2010, [Appellant] filed a pro se [p]etition
to [r]econsider[3] and for [a]ppointment of [c]ounsel. On
November 18, 2010, [Appellant] filed a pro se [n]otice of
[a]ppeal to the Superior Court. On December 3, 2010,
David W. Banish, Esquire, was appointed as appellate
counsel. On January 13, 2011, [Appellant] filed a pro se
[c]oncise [s]tatement of [e]rrors [p]ursuant to Pa.R.A.P.
1925(b). On January 24, 2011, after receiving the notes of
testimony, this [c]ourt ordered defense counsel file a
[c]oncise [s]tatement of [e]rrors pursuant to Pa.R.A.P.
1925(b) by February 14, 2011. On February 14, 2011, Mr.
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3
This motion was not docketed, nor is it part of the certified record.
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Banish filed his [c]oncise [s]tatement of [e]rrors and
asserted that there were no non-frivolous issues preserved
for appeal. On March 28, 2011, this [c]ourt filed its opinion
in the matter.
On March 15, 2012, the Superior Court quashed
[Appellant’s] appeal after they concluded that the appeal
was not properly before them. On November 29, 2012,
[Appellant] filed a petition pursuant to the Post-Conviction
Relief Act [(“PCRA”)4] to have his appellate rights
reinstated nunc pro tunc. On March 7, 2014, Peter A.
Levin, Esquire[,] was appointed PCRA Counsel. On April
24, 2015, the Commonwealth agreed to reinstate
[Appellant’s] appellate rights with Mr. Levin to remain as
appellate counsel. On May 12, 2015, [Appellant] filed a
[n]otice of [a]ppeal to the Superior Court. On May 14,
2015, this [c]ourt ordered [Appellant] to file a [c]oncise
[s]tatement of [e]rrors pursuant to Pa.R.A.P. 1925(b) and
defense counsel did so on June 3, 2015.
Trial Court Opinion, filed June 11, 2015, at 2-4.
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING [] APPELLANT TO A HARSH AND EXCESSIVE
SENTENCE?
Appellant’s Brief at 7.
In his sole issue on appeal, Appellant challenges the discretionary
aspects of his sentence. Challenges to the discretionary aspects of
sentencing do not entitle a petitioner to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can
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4
42 Pa.C.S. §§ 9541-9546.
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address such a discretionary challenge, an appellant must invoke this Court’s
jurisdiction by satisfying the following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see 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.
Id.
“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.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa.Super.2013), appeal denied, 76 A.3d 538 (Pa.2013).
Presently, Appellant failed to preserve his issues at sentencing or in a
timely post-sentence motion.5 Thus, Appellant has waived his challenge to
the discretionary aspects of his sentence.6
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5
Appellant claims he filed a pro se petition for reconsideration on November
2, 2010, however this petition was not docketed, the trial court did not rule
on it, and it is not included in the certified record. Moreover, his alleged pro
se petition would be considered a nullity as he was represented by counsel
when he filed it. See Commonwealth v. Figueroa, 29 A.3d 1177, 1178
n.2 (Pa.Super.2011), appeal denied, 46 A.3d 715 (Pa.2012). Appellant did
not file a post-sentence motion after his appellate rights were reinstated
nunc pro tunc.
6
Moreover, Appellant’s claim that the court failed to consider his
rehabilitative needs and mitigating factors and failed to state adequate
reasons for its sentence is devoid of merit. The trial court acknowledged
Appellant’s apology, ordered him to get a GED and job training, and
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2016
_______________________
(Footnote Continued)
sentenced him to a period of confinement because Appellant committed
serious crimes while he was on probation and the court felt it needed to
sentence Appellant to full confinement to vindicate the authority of the
court. See N.T., 10/22/2010, at 13-14.
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