J-S63027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NICHOLAS POMPEII

Appellant No. 678 EDA 2015

Appeal from the Judgment of Sentence December 2, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003991-2014

 CP-51-CR-0003996-2014

 CP-51-CR-0003997-2014

 CP-51-CR-0003998-2014

 CP-51-CR-0004000-2014

BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 06, 2015

Appellant, Nicholas Pompeii, appeals from the December 2, 2014 

aggregate judgment of sentence of 11 to 22 years of incarceration, imposed 

after Appellant entered into an open guilty plea to a multitude of charges.1 

After careful review, we affirm.

____________________________________________

1 As noted by the Commonwealth, “[Appellant] and his co-conspirators 

committed four armed robberies over a span of [several] days, terrorizing a 

neighborhood in South Philadelphia.” Commonwealth Brief at 3. Relative to 

these actions, Appellant pled guilty to multiple counts of robbery, 

aggravated assault, conspiracy, simple assault, possession of an instrument 

of crime, theft by unlawful taking, receiving stolen property, terroristic 

threats, possession of a firearm prohibited, firearms not to be carried 

without a license, carrying a firearm in public in Philadelphia, unauthorized 

(Footnote Continued Next Page)
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The trial court detailed the factual and procedural background of this 

case, an abridged recitation of which is as follows.

[Appellant] and four (4) other individuals committed 

a series of gunpoint robberies in a span of seven 

days in South Philadelphia.

On October 16, 2013, a co-defendant stole a 

vehicle located on 1600 Pratt Street, Philadelphia, 

Pennsylvania that would be used by [Appellant] and 

the other individuals to drive around South 

Philadelphia to commit these crimes. ... [Appellant] 

was charged with receiving stolen property and 

unauthorized use of that motor vehicle.

The first gunpoint robbery took place on 

October 17, 2013. [Appellant] and a co-defendant 

approached the complainant at 11 p.m. at night. 

The co-defendant carried a gun and [Appellant] 

stated, “Turn around and keep walking or we’ll shoot 

you.” [Appellant] later gave a statement admitting 

to robbing and holding up the complainant at 

gunpoint.

The second robbery took place on October 19, 

2013. [Appellant] and two other males approached 

the complainant. One of the co-defendants pistolwhipped the complainant in the head while 

[Appellant] and the other male went through the 

complainant’s pockets. [Appellant] admitted to 

participating in the robbery and going through the 

complainant’s pockets in a statement made to police. 

The third robbery took place that same 

morning of October 19, 2013, ... at 8:07 a.m. at 737 

East Passyunk Avenue, Philadelphia, Pennsylvania. 

[Appellant] and a co-defendant approached a 

(Footnote Continued) _______________________

use of a motor vehicle and recklessly endangering another person. Trial 

Court Opinion, 6/23/15, at 1-2.
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female. The co-defendant pulled the gun and 

[Appellant] stated to the complainant, “Where’s your 

money?” The complainant later identified 

[Appellant] in a photo array and [Appellant] 

admitted to the robbery in his statement to police.

The fourth robbery took place at 5:25 a.m. on 

October 22, 2013. [T]he complainant was 

approached by two males that knocked her to the 

ground and went through her pockets. The 

complainant later identified [Appellant] in a photo 

array and stated that [Appellant] was the one 

holding the gun.

At the time of sentencing, [Appellant’s] prior 

record score was a five (5) and the offense gravity 

score for the leading offense was a ten (10). The 

standard range for the leading offense, a robbery in 

which [Appellant] possessed and held a gun, was 

seventy-eight (78) to ninety (90) months, plus or 

minus twelve (12) months. The standard range for 

the other three (3) robberies was sixty-nine (69) to 

eighty-one (81) months plus or minus twelve (12) 

months. 

The Commonwealth presented the testimony of 

Brian Kysela, who was [a robbery] victim. Mr. 

Kysela stated on the evening in question he and his 

wife were coming home in a taxi at about 11:00 p.m. 

His wife went up before him. As he was crossing the 

road to get into his house he heard someone run up 

behind him. Mr. Kysela turned around to a gunman. 

The gunman took money that Mr. Kysela had in his 

hand from the cab along with Mr. Kysela’s house 

keys. The gunman then asked Mr. Kysela what else 

he had in his pocket. Mr. Kysela gave him his 

driver’s license, credit card, and Zip car membership 

card.

At that point, [Appellant] ran up to them, told 

the gunman to ask for his phone, and then 

demanded “Give us your phone.” Mr. Kysela took 

out his cell phone and the gunman took it. 

[Appellant] then patted down Mr. Kysela’s pockets, 

front and back, grabbed Mr. Kysela’s wife’s jacket 
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and Mr. Kysela’s jacket out of his arms, went 

through them to find nothing and then threw them in 

the gutter. Mr. Kysela was then threatened to turn 

around and keep walking or “we will shoot you.” 

When Mr. Kysela hesitated, [Appellant] stated he 

had a gun. Mr. Kysela kept walking and then they 

left. Mr. Kysela then went into his house as this 

happened outside his front door.

Mr. Kysela testified that this crime had a great 

effect on him and his wife. He stated that neither of 

them felt safe because he was robbed right outside 

of his house, right outside of his door. He did not 

feel safe anywhere in the city. Both he and his wife 

changed jobs and left the city as a result. Prior to 

this incident, they had lived in the city for five (5) 

years. He also stated that it has been difficult for 

him and his wife to live with this violent crime.

The Commonwealth also read the victim 

impact statement of Anna Maria Gorraglia. Ms. 

Gorraglia testified at the sentencing of a codefendant in front of a judge stating:

Last year in October I was robbed at gunpoint 

by two young men. One pointed a gun at my 

chest while the other one, the defendant, 

demanded my purse. Even though I handed 

him my purse he threatened me with, You 

better have some money here. It probably 

wasn’t that long but it seemed like a lifetime. 

The things that were going through my head 

was I’m going to die today. This is it. It’s 

over. I’ll never see my children again. Maybe 

if they shoot me in the back, I’ll survive. The 

defendant demanded [that I] turn around. I 

thought they were going to shoot me in my 

back. This event not only impacted my life, 

but my daughter’s life. My daughter was 

supposed to be with me that day because she 

overslept. If she was with me things may have 

been very different. When I came home my 

daughter started immediately crying. She 

slept with me for weeks. We were both scared 

to go outside for a long time. I was scared of 
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anybody with a hood on and felt like the 

outside was a war zone. It was six months 

before I let my daughter walk anywhere alone 

again. She had gotten very depressed and 

wasn’t eating. I had to take her to the doctor 

two different times. I used to walk to work, 

but I no longer do because I am afraid. That 

route was a shortcut and now I take public 

transportation. Now I have to spend my 

money and do not get my morning exercise. 

The defendant has not only robbed the 

material possessions of mine but, also, has 

taken my freedom.

[Appellant] exercised his right of allocution and 

apologized to his victims, stating:

I have remorse for my victims because I only 

did – I affected their lives harshly. I affected 

mine harshly, too. I’m going – I’m – I’m – I’m 

basically – I’m going through something most 

people don’t go through right now. I may have 

put myself here in this predicament, but there 

are certain things – it’s life changing. I don’t –

I can’t speak right now.

This [trial c]ourt sentenced [Appellant] to four 

(4) to eight (8) years of incarceration plus one (1) to 

two (2) years on the aggravated robbery conspiracy, 

to run consecutively.

On ... the VUFA charges 6105 and 6106, the 

[trial c]ourt sentenced [Appellant] to four (4) to 

eight (8) years plus one (1) to two (2) years to run 

consecutively. The [trial c]ourt sentenced 

[Appellant] to a straight four (4) to eight (8) years 

on the aggravated assault, robbery and conspiracy. 

All three ... run concurrently with one another.

[The trial c]ourt sentenced [Appellant] to five 

(5) to ten (10) years on the aggravated assault, 

robbery and one (1) to two (2) years on the VUFA 

6105 and 6106 to run consecutive to the other 

sentences. [Appellant] was sentenced to one (1) to 

two (2) years also to run consecutive to the other 

sentences. In total, [Appellant] was sentenced to 
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eleven (11) to twenty-two (22) years of

incarceration and ordered to pay $1050.91 in 

restitution. 

Trial Court Opinion, 6/23/15, at 2-7 (internal citations omitted).

On December 11, 2014, Appellant filed a motion for reconsideration, 

which, after a hearing, the trial court denied on February 10, 2015. 

Appellant filed a timely notice of appeal on March 6, 2015. 2 

On appeal, Appellant presents one issue for our review.

Whether the trial court erred by imposing an 

“excessive sentence” violating the Pennsylvania 

Sentencing Code, 42 Pa. C.S. §9701 et. seq. by not 

following the general principle that the sentence 

imposed should call for 1) confinement consistent 

with the protection of the public; 2) the gravity of 

the offense as it relates to the impact on the life of 

the victim; and 3) the rehabilitative needs of 

[Appellant], and amounted to an abuse of discretion. 

See, 42 Pa. C.S. §9721(B)?

Appellant’s Brief at 3. 

At the outset, we note that Appellant’s argument on appeal pertains to 

the discretionary aspects of his sentence. “Pennsylvania law makes clear 

that by entering a guilty plea, the defendant waives his right to challenge on 

direct appeal all non[-]jurisdictional defects except the legality of the 

sentence and the validity of the plea.” Commonwealth v. Lincoln, 72 

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 

____________________________________________

2 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea, 

he or she does not waive claims regarding the discretionary aspects of the 

sentence “because there was no agreement as to the sentence [the 

defendant] would receive.” Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. 

Super. 2013) (citation omitted). Nevertheless, “[t]here is no absolute right 

to appeal when challenging the discretionary aspect of a sentence.” 

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation 

omitted). When an appellant forwards an argument pertaining to the 

discretionary aspects of the sentence, this Court considers such an argument 

to be a petition for permission to appeal. Commonwealth v. Buterbaugh, 

91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal 

denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this 

Court determines that there is a substantial question that the sentence was 

not appropriate under the sentencing code.” Commonwealth v. Cartrette, 

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks 

and citation omitted).

Prior to reaching the merits of a discretionary aspects of sentencing 

issue, this Court is required to conduct a four-part analysis to determine 

whether a petition for permission to appeal should be granted. 

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) 

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we 

must determine the following.
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(1) [W]hether appellant has filed a timely notice of 

appeal, Pa.R.A.P. 902, 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, 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, 42 

[Pa.C.S.A.] § 9781(b).

Id.

Instantly, Appellant filed a timely motion for modification of sentence 

and notice of appeal. Also, he has included a Rule 2119(f) statement in his 

brief. Appellant’s Brief at 2. We therefore proceed to determine whether 

Appellant has raised a substantial question for our review.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 

(Pa. 2013). “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.” Id. 

(citations omitted). “Additionally, we cannot look beyond the statement of 

questions presented and the prefatory 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Provenzano, 

50 A.3d 148, 154 (Pa. Super. 2012).
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In this case, Appellant avers that the trial court abused its discretion 

based on the following claims. 

The trial court erred by imposing an “excessive 

sentence” violating the Pennsylvania Sentencing 

Code, 42 Pa. C.S. §9701 et. seq. by not following the 

general principle that the sentence imposed should 

call for 1) confinement consistent with the protection 

of the public; 2) the gravity of the offense as it 

relates to the impact on the life of the victim; and 3) 

the rehabilitative needs of [Appellant], and 

amounted to an abuse of discretion. See, 42 Pa. 

C.S. §9721(B) ...

The Sentence imposed was unreasonable and 

pursuant to the Pennsylvania Sentencing Code, in 

that total confinement for a period of 11 to 22 years 

is an excessive sentence. [Appellant] is “amenable 

to drug treatment” and vocational training, and 

rehabilitation.

Appellant’s Pa.R.A.P. 2119(f) Statement, Appellant’s Brief at 2; see also

Appellant’s Statement of the Question Involved, id. at 3. 

This Court has long recognized that “an allegation that a sentencing 

court ... did not adequately consider certain factors does not raise a 

substantial question that the sentence was inappropriate.” Commonwealth 

v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d 

1280 (Pa. 2009); see also Commonwealth v. Bullock, 868 A.2d 516, 529 

(Pa. Super. 2005). Furthermore, this Court has held that an argument that 

the trial court failed to consider certain mitigating factors in favor of a lesser 

sentence does not present a substantial question appropriate for our review. 

Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011); 

accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). 
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Consequently, Appellant has failed to a raise a substantial question for our 

review.3 See Edwards, supra.

Based on the foregoing, we deny Appellant’s petition for permission to 

appeal the discretionary aspects of his sentence, and affirm the trial court’s 

December 2, 2014 judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015

____________________________________________

3 Even if we were permitted to address the merits, Appellant would not be 

entitled to relief. We note that the trial court provided detailed reasoning for 

its sentence, including its statement that it “chose to impose a mitigated 

guideline state sentence to permit [Appellant’s] release from custody at a 

relatively young age but a term of incarceration to provide assurance that he 

is rehabilitated from the tendencies which caused him to resort to crime. 

Additionally, based on [Appellant’s] age and needs for treatment, the [trial 

c]ourt recommended SCI-Chester.” Trial Court Opinion, 6/23/15, at 10, 

citing N.T., 12/2/14, at 30 (emphasis added).