J-S43043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW R. FISHER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

____________________________________________

* 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. 
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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 abovereferenced 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 postsentence 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 courtordered 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 timelyfiled 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. PostSentence 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 presentence 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