J-S15007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TIMOTHY THOMAS,

Appellant No. 3219 EDA 2014

Appeal from the Judgment of Sentence Entered November 4, 2011

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006244-2010

BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 29, 2016

Appellant, Timothy Thomas, appeals nunc pro tunc from the November 

4, 2011 judgment of sentence of an aggregate term of 81⁄2 to 17 years’ 

incarceration, imposed after he pled guilty to rape (by forcible compulsion) 

and simple assault. Appellant challenges the discretionary aspects of his 

sentence. We affirm.

The trial court set forth the facts of Appellant’s case, as follows:

On November 23, 2009, [Appellant] snuck into the 

bedroom of his girlfriend’s sister. [Appellant] crept up to the six 

month[s] pregnant victim, who was sleeping in bed with her 

two-year-old son, and began to rape her. The victim’s son woke 

up, at which point [Appellant] forcibly inserted his penis into the 

victim’s mouth. Then [Appellant] bent the victim over the bed 

and continued raping her. After he was finished, [Appellant] 

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* Retired Senior Judge assigned to the Superior Court.
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ordered the victim not to tell anyone about what had happened 

and then he fled. [Appellant] later texted the victim, apologized 

for raping her, and offered to pay her $200 if she [did not] go to 

the police. The victim contacted police anyway. The police 

listened to a phone conversation between [Appellant] and the 

victim in which [Appellant] apologized again for raping her.

Trial Court Opinion (TCO), 6/30/15, at 2.

On June 20, 2011, Appellant entered an open guilty plea to the abovestated offenses, in exchange for the Commonwealth’s withdrawing other 

charges. On November 4, 2011, the court sentenced Appellant to a term of 

81⁄2 to 17 years’ incarceration for the rape conviction, and a concurrent term 

of 1 to 2 years’ incarceration for simple assault. Appellant did not file a 

post-sentence motion or a direct appeal.

On April 14, 2012, Appellant filed a pro se petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was 

appointed and filed an amended petition on Appellant’s behalf. After 

conducting a short hearing on October 31, 2014, the court issued an order 

that same day stating, “[Appellant’s] appellate rights are reinstated nunc pro 

tunc.” PCRA Court Order, 10/31/14 (unnecessary capitalization omitted).

Appellant’s counsel then filed a timely notice of appeal on Appellant’s 

behalf. Appellant also timely complied with the court’s order to file a 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Herein, he 

raises the following two issues for our review, which we have reordered for 

ease of disposition:

I. Did the [PCRA] court err in denying [A]ppellant’s motion to file 

post[-]sentence motions nunc pro tunc; because of this 

[A]ppellant was unable to file a motion to correct what 
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[A]ppellant believed was an erroneous sentence that based on 

the record was more severe than the trial court intended to 

impose?

II. Is [A]ppellant entitled to a new sentenc[ing] hearing when 

the trial court intend[ed] to impose a sentence in the mitigated 

range of the sentenc[ing] guidelines because it found that 

[A]ppellant was remorseful but mistakenly imposed a more 

severe sentence in the standard range of the sentenc[ing] 

guidelines?

Appellant’s Brief at 2.

Initially, Appellant’s first claim does not implicate his judgment of 

sentence but, rather, it challenges the PCRA court’s order issued on October 

31, 2014.1 Specifically, Appellant contends that the PCRA court erred by 

denying his request to file a nunc pro tunc post-sentence motion, which 

precluded Appellant from preserving the sole issue he raises in this nunc pro 

tunc direct appeal, i.e., a challenge to the discretionary aspects of his 

sentence. Appellant notes that the court’s October 31, 2014 order ruling on 

his petition stated only, “Defendant’s appellate rights are reinstated nunc pro 

tunc.” PCRA Court Order, 10/31/14. 

However, the trial court (which also presided over Appellant’s PCRA 

petition) states in its opinion that “[w]hen [it] reinstated [Appellant’s] direct 

appeal rights, it was the [c]ourt’s intention to give [Appellant] his full 

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1 Appellant should have filed two separate notices of appeal, one nunc pro 

tunc appeal from his judgment of sentence, and another notice of appeal 

from the PCRA court’s order issued on October 31, 2014. However, 

Appellant did state, in the single notice of appeal that he filed, that he was 

appealing from both his judgment of sentence, as well as the PCRA court’s 

order.
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appellate rights, including the ability to file any necessary post-sentence 

motions required to properly preserve any issues for direct appeal pursuant 

to Pennsylvania Rule of Criminal Procedure 720(B).” TCO at 3. The court 

then declares that, “in the interest of judicial economy[,] this [c]ourt will 

treat [Appellant’s] ... allegations of error as if they were properly preserved 

for appeal and address them on their merits, despite the fact that these 

issues were never raised in a post-sentence motion, nunc pro tunc or 

otherwise.” Id. at 3-4. 

The odd procedural posture of this case, the reasonable confusion 

regarding the scope of the PCRA court’s brief order, and the fact that the 

PCRA court intended to reinstate Appellant’s right to file a post-sentence 

motion nunc pro tunc, compel us to likewise overlook the waiver of 

Appellant’s sentencing issue based on his failure to file a post-sentence 

motion. 

However, we cannot overlook another basis on which Appellant has 

waived the specific sentencing challenge he asserts herein. Appellant solely 

contends on appeal that the trial court “intend[ed] to impose a sentence in 

the mitigated range of the sentenc[ing] guidelines[,]” yet the court 

“mistakenly imposed a higher sentence in the standard range of the 

sentenc[ing] guidelines.” Appellant’s Brief at 7. According to Appellant, this 

ostensible mistake by the court constitutes an abuse of discretion and 

renders his sentence “unreasonable.” Id. at 8. 
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As the Commonwealth points out, in Appellant’s Rule 1925(b) 

statement, he raised the following issues pertaining to his sentence:

3. The trial court abused its discretion in the sentence it imposed 

on [Appellant]. The sentence was unreasonable.

4. The sentence imposed was above the aggravated range of the 

sentencing guidelines.

Rule 1925(b) Statement, 12/2/14. Appellant did not specifically state that 

the trial court erred by imposing a standard range sentence when it intended 

to impose a sentence in the mitigated range of the guidelines. 

Consequently, the trial court did not address this claim in its Rule 1925(a) 

opinion. Therefore, we conclude that Appellant has waived this sentencing 

issue for our review.2 See Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall 

concisely identify each ruling or error that the appellant intends to challenge 

with sufficient detail to identify all pertinent issues for the judge.”); 

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not 

raised in accordance with the provisions of this paragraph (b)(4) are 

waived.”).

Nevertheless, even if properly preserved, we would decline to review 

Appellant’s sentencing claim. 

A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to 

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2 We note that the trial court’s order to file a Rule 1925(b) statement 

specifically directed that “[a]ny issue not properly included in the Statement 

timely filed and served pursuant to Rule 1925(b) shall be deemed waived.” 

Trial Court Order, 11/17/14.
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pursue such a claim is not absolute. When challenging the 

discretionary aspects of the sentence imposed, an appellant 

must present a substantial question as to the inappropriateness 

of the sentence. Two requirements must be met before we will 

review this challenge on its merits. First, an appellant must set 

forth in his brief a concise statement of the reasons relied upon 

for allowance of appeal with respect to the discretionary aspects 

of a sentence. Second, the appellant must show that there is a 

substantial question that the sentence imposed is not 

appropriate under the Sentencing Code. That is, [that] the 

sentence violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process. We 

examine an appellant’s [Pa.R.A.P.] 2119(f) statement to 

determine whether a substantial question exists. Our inquiry 

must focus on the reasons for which the appeal is sought, in 

contrast to the facts underlying the appeal, which are necessary 

only to decide the appeal on the merits. 

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008) 

(citations, quotation marks and footnote omitted; emphasis in original).

Here, Appellant presents a Rule 2119(f) statement arguing that the 

court’s sentence was “unreasonable, irrational, and an abuse of discretion 

because the court ... told [Appellant] three times that it intended to impose a 

sentence in the mitigated range of the sentenc[ing] guidelines, but 

erroneously imposed a more severe sentence in the standard range of the 

sentenc[ing] guidelines.” Appellant’s Brief at 3. Appellant does not specify 

what “specific provision of the sentencing scheme” or “fundamental norm” of 

the sentencing process the court violated in this regard.3 Appellant also 

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3 We also note that at no point in his Rule 2119(f) statement, or the 

argument portion of his brief, does Appellant cite to where in the record the 

(Footnote Continued Next Page)
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claims that “[t]he imposition of consecutive sentences imposed by the trial 

court was a manifest abuse of discretion....” Id. However, the record 

confirms that Appellant’s sentences were imposed to run concurrently, not 

consecutively. Accordingly, Appellant has failed to convince us that either of

his claims constitute a substantial question warranting our review.4 

Judgment of sentence affirmed.

(Footnote Continued) _______________________

sentencing court purportedly indicated its intention to impose a mitigated

range sentence. 

4

In any event, we would ascertain no abuse of discretion in the court’s 

decision to impose standard range, concurrent sentences for Appellant’s two 

offenses. In its opinion, the court states:

[I]n imposing [Appellant’s] sentence, this [c]ourt took into 

account all mitigating factors cited by defense counsel, as well as 

arguments of the Commonwealth. This [c]ourt carefully 

considered the heinous acts committed by [Appellant] as well as 

the fact that [Appellant] entered into a guilty plea. The [c]ourt 

also took into account the seriousness of the violation, 

[Appellant’s] rehabilitative needs, and the need to protect the 

community in accordance with 42 Pa.C.S. § 9721(b). 

TCO at 7 (footnote and citations to the record omitted). We have reviewed 

the record of the lengthy sentencing hearing conducted by the court, which 

supports the court’s claim that it carefully considered all of the requisite 

sentencing factors, including Appellant’s remorse and other mitigating 

circumstances. While the court did incorrectly state that Appellant’s 

sentence was in the mitigated range of the guidelines, see N.T. Sentencing, 

11/4/11, at 43, it is clear that the court prudently fashioned, and fully 

intended to impose, the aggregate term of 81⁄2 to 17 years’ incarceration. 

The record also demonstrates that the court provided ample reasons for 

imposing Appellant’s standard range, concurrent sentences. Accordingly, 

even if Appellant’s claim constituted a substantial question, we would 

conclude that the court did not abuse its discretion in sentencing him. 
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Judge Platt joins this memorandum.

Judge Olson concurs in the result of this memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/29/2016