J-S43043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW R. FISHER : : Appellant : No. 614 MDA 2023
Appeal from the Judgment of Sentence Entered March 4, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000297-2021
BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MAY 10, 2024
Appellant, Matthew R. Fisher, appeals the judgments of sentence that
the Luzerne County Court of Common Pleas imposed after he entered a guilty
plea to criminal solicitation to commit statutory sexual assault and criminal
attempt to commit unlawful contact with minors.1 On direct review, he
challenges the discretionary aspects of his sentence, claiming that the plea
court imposed a manifestly excessive sentence by imposing consecutive terms
of imprisonment and failing to consider his mitigating sentencing factors. We
affirm.
An affidavit of probable cause, attached to Appellant’s criminal
complaint, indicates, as follows, that his convictions stemmed from
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 902(a)/3122.1(b) and 901(a)/6318(a)(1), respectively. J-S43043-23
arrangements and communications he made with the intention of having
sexual relations with a fifteen-year-old boy:
Investigators received the report of an adult male subject who attempted to have unlawful contact with a minor on June 19, 2020.
A witness reports on June 19, 2020[,] he communicated with a subject using the screen name ‘Matthew’ on the social networking and online dating application Grindr. The username Matthew has a photo of a dog associated with it. During said communication[,] ‘Matthew’ communicates by asking the witness if he wants to meet up and have sex. Afterward, the witness identified himself as a 15-year-old boy. It was after said identification the subject asks the witness if he had nude pictures and wants the witness’s address. Arrangements were made for the subject and witness to meet.
The witness subsequently provided a communication device that contained digital images of text message content as well as video that confirmed the report. A forensic extraction of the device was performed.
A review of same disclosed subject ‘Matthew’ wanted to meet the witness to have sex and forwarded a photograph that included an exposed penis. Matthew also asked the witness for nude pictures and to send him his address. When the witness asked if age was important, Matthew responded no, and asked his age. The witness replied, 15, and asked Matthew his age. Matthew responded 38 and again asked the witness if he had any nude pictures. The witness forwarded his location, and it was arranged that Matthew would proceed there. The location was described as a big lot. When Matthew arrived, he indicated he arrived. The witness replied he would be coming outside to meet Matthew at his car.
The video depicted the witness approaching a subject in a parked, dark colored Ford. The subject is observed sitting in the driver’s seat holding what appeared to be an Apple I phone XR in a red colored case. The subject was looking at its display. When the subject observes the witness near his car[,] he places the phone, display side down, onto his lap. The witness motions to the
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subject to lower the car window. The witness confronts the subject about being there to meet a 15-year-old boy and the subject briefly speaks before the subject quickly places the car into drive and rapidly drives off the lot. The video also indicates it was recorded in Wilkes Barre on June 19, 2020 in a lot at the corner of Market and River Streets.
The witness identified said subject as Matthew Raymond Fisher from his photo displayed on the Pennsylvania State Police Megan’s Law website. Fisher’s identity was further confirmed by his photo with the Pennsylvania Department of Transportation.
On August 27, 2020[, State] Trooper[ ]Justin Leri, Detective Charles Balogh[,] and [Detective Robert Lehman] located Fisher at a residence in Blakeslee, Pa. Fisher’s vehicle, the same observed in the witnesses’ video was in the driveway.
Fisher consented to an interview at the Pennsylvania State Police Stroudsburg barracks. At 1123 hrs. [Trooper] Leri mirandized Fisher.
At 1156 hrs. Fisher consented to a search of his cellular phone. The phone, an Apple I phone XR, possessed the same colored case that the phone he possessed in said video.
Investigators questioned Fisher regarding the allegation that on June 19, 2020 he attempted to meet and have sexual contact with whom he believed to be a 15-year-old boy.
Fisher said the person who[m] he had been texting with said he was “22 or whatever.” Investigators corrected Fisher and displayed a copy of the text message content that provides the person identified himself as a 15-year-old boy. Afterward, Fisher does not deny said age was any different, and when asked if he recalled the conversation, he replied in the affirmative.
Fisher admitted he asked for nude pictures from said person after he identified himself as a 15-year-old boy.
Fisher provided that a photo of his dog appears next to his username ‘Matthew’ within the text message content associated with the aforementioned communication with the witness on Grindr. After meeting with the witness, Fisher said he deleted the Grindr application. However, [he] has since reactivated it. He
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reports that since reactivating said account, he will not meet anyone who reports to be under the age of 18.
Affidavit of Probable Cause, 1/6/21, 1-2 (upper case names reformatted).
On September 8, 2021, Appellant entered a guilty plea to the above-
referenced offenses after executing a written guilty plea agreement and
participating in an oral colloquy conducted by the plea court. N.T. 9/8/21, 2-
9. As part of the colloquy, he agreed that, on June 19, 2020, he encouraged
or requested an individual purporting to be fifteen years old to engage in
conduct which would constitute statutory sexual assault and that he
performed an act which constituted a substantial step toward the commission
of the crime of unlawful contact with a minor. Id. 6-7. The record did not
include any reference to any agreements for sentencing recommendations
made in connection with the entry of the plea. Sentencing was deferred for
an evaluation by the Sexual Offenders Assessment Board (SOAB) and the
preparation of a pre-sentence investigation report. Id. at 9. A subsequent
SOAB report opined that Appellant met the criteria set forth in law as a
sexually violent predator. Commonwealth’s Motion to Schedule Sexually
Violent Predator Hearing, 11/24/21, ¶ 4.
On March 4, 2022, the plea court sentenced Appellant to 30 to 84
months’ imprisonment for criminal solicitation to commit statutory sexual
assault, to be served consecutive to any other sentence that Appellant might
have already been serving at that time, and a consecutive term of 30 to 84
months’ imprisonment, to be followed by three years’ probation, for criminal
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attempt to commit unlawful contact with minors.2, 3 Sentencing Order,
3/4/22, 1; N.T. 3/4/22, 14. The court prefaced the imposition of the sentence
with the following remarks:
Having again reviewed the presentence report and everything offered here today, I do note the defendant appearing to be remorseful and accepting of responsibility by his plea and by what he is stating here, and I do note some of the mental health issues that were referenced in the presentence report and referenced in the sexual offender’s report, however, I am very concerned with the nature of the offenses involved and the fact that the defendant has a prior sexual related offense involving a minor on his record
2 The imprisonment terms were within the standard range recommended by
the Sentencing Guidelines. For each of the offenses, the guidelines recommended a minimum imprisonment term of 27 to 33 months’ imprisonment, plus or minus 9 months for aggravating or mitigating circumstances. 204 Pa. Code § 303.3(a)(1) (convictions for an attempt or solicitation of a first-degree felony receive an offense gravity score that is one point less than the offense attempted or solicited; 7th ed. amend. 5 of the Sentencing Guidelines); 204 Pa. Code § 303.15 (offense listing, setting an offense gravity score of nine for statutory sexual assault under 18 Pa.C.S. § 3122.1(b), a first-degree felony, and providing that unlawful contact under 18 Pa.C.S. § 6318(a)(1) has the same offense gravity score as the underlying offense for which the defendant contacted a minor, or an offense gravity score of six, whichever is greater; 7th ed. amend. 5 of the Sentencing Guidelines); 204 Pa. Code § 303.16(a) (basic sentencing matrix; 7th ed. amend. 5 of the Sentencing Guidelines); N.T. 3/4/22, 9 (noting that Appellant had a prior record score of five).
Appellant was also found to be a sexual violent predator and a tier 3 registrant for purposes of the sexual offender registration and notification provisions under Revised Subchapter H of the Sexual Offender Registration and Notification Act (SORNA). Sentencing Order, 3/4/22, 1; N.T. 3/4/22, 2-3, 15- 18; Sexual Offender Registration Notification, 3/4/22, 1-2; see 42 Pa.C.S. §§ 9799.14-9799.15.
3 Appellant’s counsel acknowledged that Appellant had recently received an imprisonment term of 27 to 60 months in a Monroe County matter for failing to register as a sexual offender. N.T. 3/4/22, 5-6.
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and that he was on parole and subject to registration requirements at the time of this offense. Obviously it does concern the Court that the defendant would pose a threat to minor children by these types of offenses and obviously their impact on victims. I will fashion a sentence within the standard range of the applicable guidelines and sentence the defendant as follows in order to hold him accountable and obviously see that he’s in a structured setting with a period of incarceration to hopefully avail himself of programs to reform his ways. There was a concern that he didn’t seem to follow through with the sexual offender counseling before and he will need to do so.
N.T. 3/4/22, 13-14.
Appellant attempted to file a pro se motion for reconsideration of
sentence that was a nullity because he still had counsel of record at the time.
See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)
(noting that, when Nischan was represented by counsel, his “pro se post-
sentence motion was a nullity, having no legal effect.”). He then filed a pro
se notice of appeal that was untimely because the pro se post-sentence motion
did not toll the thirty-day deadline for filing a notice of appeal following the
sentencing hearing. We sua sponte quashed as untimely the appeal resulting
from that notice. Superior Court Order, No. 979 MDA 2022, 8/17/22, 1.
Appellant’s post-sentence motion and direct appeal rights were thereafter
reinstated nunc pro tunc after Appellant filed a petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541, et seq. Order, 3/15/23, 1.
Appellant then filed a counseled post-sentence motion for
reconsideration nunc pro tunc in which, inter alia, he requested the plea court
to reimpose his judgments of sentence to be served concurrently with each
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other and a separate sentence in an unrelated criminal matter in Monroe
County. Post-Sentence Motion, 3/22/23, ¶ 2. Following the denial of that
motion, he timely filed a notice of appeal. Order Denying Post-Sentence
Motion, 4/13/23, 1; Notice of Appeal, 4/20/23. He also timely filed a court-
ordered concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Rule 1925(b) Order, 4/25/23, 1; Rule 1925(b) Statement,
5/12/23, 1.
Appellant presents the following questions for our review:
I. Whether the [plea] court abused its discretion in failing to run each count concurrently[?]
II. Whether the [plea] court erred or abused its discretion in failing to consider mitigation evidence presented by the Appellant[?]
Appellant’s Brief, 1.
Appellant claims that the plea court abused its discretion by sentencing
him to consecutive terms of imprisonment “without considering [his] remorse,
mental health issues, and mitigation evidence.” Appellant’s Brief, 2, 7-9. He
acknowledges that his individual judgments of sentence “fell within the
[Sentencing G]uidelines” and were imposed following the consideration of a
pre-sentence investigation report, but he alleges that the resulting aggregate
term of imprisonment was “excessive considering [his] remorse and mitigating
circumstances.” Id.
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There is no absolute right to appellate review of a discretionary
sentencing claim. Commonwealth v. Solomon, 247 A.3d 1163, 1167 (Pa.
Super. 2021) (en banc). Rather,
We conduct a four-part analysis to determine: (1) whether [the] appellant [ ] 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.A.P. 720; (3) whether [the] appellant’s brief has a fatal defect, [see] 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. Bartic, 303 A.3d 124, 134 (Pa. Super. 2023) (citation
omitted). Following satisfaction of all four elements of this review, this Court
then reviews the underlying discretionary aspects of sentencing issue,
pursuant to an abuse of discretion standard. Commonwealth v. Akhmedov,
216 A.3d 307, 328-29 (Pa. Super. 2019) (en banc).
Here, we find no procedural impediments to substantive review.
Appellant timely filed a notice of appeal within thirty days of the denial of his
timely-filed post-sentence motion that was filed after the reinstatement of his
post-sentence motion and direct appeal rights nunc pro tunc. Pa.R.Crim.P.
720(A)(2)(b). His claim was also preserved by the points raised in his timely-
filed post-sentence motion for reconsideration of sentence in which he argued
that he should have received concurrent terms of imprisonment based on
mitigating sentencing factors, including his mental health issues, his
acceptance of responsibility for his actions, his limited education, and his
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participation in sexual offender programming in the state prison system. Post-
Sentence Motion, 3/22/23, ¶ 2. Lastly, Appellant included a statement
required by Pa.R.A.P. 2119(f) in his brief and asserted that his claim alleging
the imposition of an excessive sentence and a lower court’s failure to properly
consider mitigating sentencing factors raised a substantial question permitting
our review. See, e.g., Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.
Super. 2015) (en banc) (“[W]e conclude that [an a]ppellant’s challenge to the
imposition of his consecutive sentences as unduly excessive, together with his
claim that the court failed to consider his rehabilitative needs upon fashioning
its sentence, presents a substantial question.”). Accordingly, we will consider
Appellant’s sentencing claim.
Upon conducting substantive review of a discretionary sentencing claim,
we are mindful of our standard of review which provides:
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.
Commonwealth v. Glawinski, 310 A.3d 321, 326 (Pa. Super. 2024)
(citation omitted). This deferential standard is based on the recognition that
“the nuances of sentencing decisions are difficult to gauge from the court
transcript used upon appellate review.” Commonwealth v. Perry, 32 A.3d
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232, 236 (Pa. 2011), quoting Commonwealth v. Walls, 926 A.2d 957, 961-
62 (Pa. 2007).
Appellant first takes issue with the plea court’s decision to impose
consecutive rather than concurrent terms of imprisonment. Appellant’s Brief,
7-8. When imposing a sentence, the sentencing court must consider “the
protection of the public, the gravity of the offense as it relates the impact on
the life of the victim and on the community, and the rehabilitative needs of
the defendant.” 42 Pa.C.S. § 9721(b). “The general rule in Pennsylvania is
that in imposing a sentence, the court has discretion whether to make it
concurrent with or consecutive to other sentences then being imposed or other
sentences previously imposed.” Commonwealth v. Graham, 661 A.2d
1367, 1373 (Pa. 1995); see also Commonwealth v. Marts, 889 A.2d 608,
612 (Pa. Super. 2005) (“Long standing precedent of this Court recognizes that
42 Pa.C.S.A. section 9721 affords the sentencing court discretion to impose
its sentence concurrently or consecutively to other sentences being imposed
at the same time or to sentences already imposed.”).
Appellant asserts that the imposition of an aggregate term with a
fourteen-year maximum imprisonment term “is manifestly excessive in light
of the crimes committed and [his] remorse in accepting responsibility for his
actions.” Appellant’s Brief, 8. His argument fails to take into consideration
that there were multiple factors, that were not accounted for by the
Sentencing Guidelines, that demonstrated a need for a period of incarceration
that exceeded merely just one standard-guideline-range term. Many of these
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factors were covered by the plea court’s statement of reasons for the
sentence. At the outset, Appellant’s alarming conduct in this matter
demonstrated that he posed a present danger to children in his community as
he attempted to arrange a sexual encounter – with who he thought was a
minor – and sought to trade nude images with a person who he was explicitly
told was fifteen years old. N.T. 3/4/22, 13 (“Obviously, it does concern the
Court that the defendant would pose a threat to minor children…”). The fact
that the instant offenses were committed after Appellant formerly committed
a prior sexual offense that subjected him to sexual offender registration and
reporting requirements, and was on parole in another criminal matter, also
showed that Appellant posed a substantial risk of recidivism while remaining
a danger to the community. Id. (“I am very concerned with the nature of the
offenses involved and the fact that the defendant had a prior sexual related
offense involving a minor on his record and that he was on parole and subject
to registration requirements at the time of the offense.”).
With the circumstances presented, we cannot agree with Appellant that
the imposed aggregate sentence was unreasonably long. The imposed
sentencing scheme was clearly meant to serve the twin goals of protecting the
community from Appellant and addressing Appellant’s obvious rehabilitative
needs. N.T. 3/4/22, 13-14 (“I will … sentence the defendant as follows in order
to hold him accountable and obviously see that he’s in a structured setting with
a period of incarceration to hopefully avail himself of programs to reform his
ways.”). The need for a such a term was clearly apparent where Appellant
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engaged in the actions resulting in his offenses despite the fact that he was
already under the supervision of parole authorities and the services open to
him in that process had failed to curtail his criminal conduct. Id. at 14 (“… he
didn’t seem to follow through with the sexual offender counseling before and
he will need to do so.”). The plea court acted within its discretion when it
structured the instant aggregate sentence. See Commonwealth v. Taylor,
277 A.3d 577, 594 (Pa. Super. 2022) (holding that an aggregate sentence of
18 to 36 years’ imprisonment for sexual offenses against a four-year-old victim
was not an abuse of discretion where the imposition of consecutive prison terms
was an individualized sentence consistent with the protection of the public, the
gravity of the offenses as they related to the impact of the victim and the
community, and the rehabilitative needs of the appellant, and the trial court
gave ample reasons for imposing the sentences consecutively).
To the extent that Appellant also asserts that the plea court imposed by
an excessive sentence by failing to consider mitigation evidence, we conclude
that he has not demonstrated an abuse of discretion. Because the plea court
had the benefit of a pre-sentence investigation, we may presume that it was
aware of the relevant mitigating factors and properly considered them. See
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“Where pre-
sentence reports exist, we shall continue to presume that the sentencing judge
was aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”);
Commonwealth v. Morrobel, --- A.3d ----, 2024 WL 876371, *3 (Pa.
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Super., filed Mar. 1, 2024) (“We will presume the sentencing court was aware
of the relevant information concerning Morrobel’s character and history, as
the court had the benefit of a pre-sentence investigation.”). Even if we were
not subject to that presumption, we acknowledge that the plea court explicitly
acknowledged Appellant’s mitigating factors before imposing the sentence.
N.T. 3/4/22, 13 (plea court referencing that Appellant appeared “to be
remorseful and accepting of responsibility by his plea” and noting “some of
the mental health issues that were referenced in the presentence report”).
Properly reviewing the record, it does not support the notion that the plea
court ignored mitigating factors.
For all the foregoing reasons, Appellant’s challenge to the discretionary
aspects of his sentence fails. See Commonwealth v. Brown, 249 A.3d
1206, 1216 (Pa. Super. 2021) (“[An a]ppellant is not entitled to a ‘volume
discount’ on his multiple convictions by the imposition of concurrent
sentences.”) (citations omitted and formatting altered).
Judgments of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 5/10/2024
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