J-A10036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH JEROME JOHNSON
Appellant No. 1185 MDA 2014
Appeal from the Judgment of Sentence June 19, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000798-2013
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015
Appellant Kenneth Jerome Johnson appeals from the judgment of
sentence entered in the Lycoming County Court of Common Pleas following
his jury trial convictions for rape of an unconscious person, sexual assault
and indecent assault.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On February 28, 2013, T.P. (“Victim”) was consuming alcoholic beverages at
the Port Tavern with her friends Athenia Smith, Menunah Sillah, and Jameer
Harrod. N.T., 1/27/14, at 10-12. Appellant was also at the bar, mostly
socializing with Smith. Id. at 13. When the bar closed, Victim drove her
friends back to Smith’s house, and Appellant followed them. Id. at 14.
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1
18 Pa.C.S. §§ 3121(a)(3), 3124.1, 3126(a)(4), respectively
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After consuming additional alcoholic beverages at the house, with her friends
and Appellant, Victim went to sleep on the couch. Id. at 23. Victim awoke
to find Appellant’s penis in her vagina. Id. at 25. Victim fought Appellant
off of her and eventually chased him out of the house. Id. at 28-30.
On January 28, 2014, a jury convicted Appellant of the aforementioned
charges. On June 19, 2014, the court sentenced Appellant to 81-168
months’ incarceration, followed by 3 years’ probation, for rape of an
unconscious person. The other convictions merged for sentencing purposes.
On July 14, 2014, Appellant timely filed a notice of appeal. On July 22,
2014, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely
complied on July 25, 2014.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
IMPOSING A MINIMUM SENTENCE OF 81 MONTHS, A
SENTENCE WITHIN THE STANDARD RANGE OF THE
SENTENCING GUIDELINES, WHERE THE APPELLANT’S
CONDUCT WAS LESS THAN EGREGIOUS, HE WAS FOUND
NOT TO BE A SEXUALLY VIOLENT PREDATOR, AND HIS
EXEMPLARY CONDUCT BETWEEN THE TIME OF HIS
ARREST AND SENTENCING?
Appellant’s Brief at 4.
In his sole issue on appeal, Appellant challenges the discretionary
aspects of his sentence. He argues his sentence is unreasonable in light of
his history, character, and rehabilitative needs. We disagree.
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When reviewing a challenge to the discretionary aspects of sentencing,
we determine whether the trial court has abused its discretion.
Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.2014).
“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 address such a discretionary
challenge, an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
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.
Presently, Appellant filed a timely notice of appeal and preserved his
issues in a post-sentence motion. Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).
Therefore, we must determine whether Appellant raises 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. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
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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. (internal citations omitted).
Additionally, “a claim of excessiveness that is raised against a
sentence within the statutory limits fails to raise a substantial question as a
matter of law.” Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa.2002).
Here, the court sentenced Appellant to 81-168 months’ incarceration,
followed by 3 years’ probation. The minimum sentence falls within the
guideline range of 72-90 months’ incarceration. Thus, Appellant’s bald
assertion that his sentence is too harsh fails to raise a substantial question
for review. See Mouzon, supra.
Judgment of sentence affirmed.
President Judge Gantman joins in the memorandum.
Judge Mundy concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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