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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH ANDREW KOVALESKI :
:
Appellant : No. 824 MDA 2018
Appeal from the Judgment of Sentence Entered April 10, 2017
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002000-2012
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 16, 2019
Kenneth Andrew Kovaleski (Appellant) appeals from the judgment of
sentence imposed after the trial court granted Appellant relief under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and re-sentenced
him on April 10, 2017. Upon review, we affirm.
In Appellant’s prior appeal, this Court recounted the relevant factual and
procedural history:
In June 2011, Appellant raped Victim, his adopted minor
daughter. Appellant continued to abuse Victim over the course of
a year until she reported the abuse to police in July 2012. On
February 26, 2014, a jury convicted Appellant of rape by forcible
compulsion, statutory sexual assault, incest, involuntary deviate
sexual intercourse (IDSI) with a person less than sixteen (16)
years of age, IDSI by forcible compulsion, unlawful contact with a
minor, aggravated indecent assault on a person less than sixteen
(16) years of age, endangering the welfare of children, corruption
of minors, and indecent assault. The [trial] court sentenced
Appellant on July 2, 2014, to an aggregate term of twenty-one
(21) to forty-two (42) years’ imprisonment; this sentence included
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mandatory minimums under 42 Pa.C.S.A. § 9718. The [trial]
court also adjudicated Appellant a Tier III offender and a sexually
violent predator (SVP) under the Sex Offender Registration and
Notification Act (SORNA) in effect at that time. On April 30, 2015,
this Court affirmed the judgment of sentence. Our Supreme Court
denied Appellant’s petition for an allowance of appeal on
November 10, 2015.
On October 13, 2016, Appellant timely filed a PCRA petition.
Appellant filed a motion for recusal of the trial judge from
presiding over the PCRA proceedings on October 18, 2016,
because the judge and the prosecutor were Facebook friends. On
November 16, 2016, the PCRA court held a hearing on the recusal
motion and denied relief. On February 13, 2017, the PCRA court
held an evidentiary hearing; the [PCRA] court initially denied PCRA
relief on March 8, 2017. Appellant timely filed a motion for
reconsideration on March 20, 2017. On March 23, 2017, the PCRA
court expressly granted relief in part, regarding the imposition of
the mandatory minimum sentences, and again denied PCRA relief
in all other respects.
On April 10, 2017, the [trial court] resentenced Appellant to
an aggregate term of twenty (20) to forty (40) years’
imprisonment, without the mandatory minimum sentences. After
sentencing, Appellant objected to both IDSI sentences on the
record; and the [trial] court accepted the oral motion for
reconsideration in lieu of a written motion. Appellant, however,
also timely filed a written post-sentence motion on April 18, 2017,
which claimed the [trial] court was vindictive when it resentenced
Appellant and the entire sentence was contrary to the
fundamental norms of sentencing. The [trial] court did not rule
on Appellant’s post-sentence motion. Nevertheless, on . . . April
24, 2017, Appellant filed a notice of appeal.
Commonwealth v. Kovaleski, 721 MDA 2017, *1 (Pa. Super. Apr. 27, 2018)
(unpublished memorandum) (footnotes omitted).
On April 27, 2018, this Court quashed Appellant’s appeal with regard to
his challenge of the discretionary aspects of his sentence because of the
outstanding and timely-filed post-sentence motion. Id. at *8. Accordingly,
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we remanded Appellant’s case to the trial court for the consideration and
disposition of his outstanding post-sentence motion. Id.
Following remand, the trial court denied Appellant’s post-sentence
motion on April 27, 2018. On May 17, 2018, Appellant filed a notice of appeal.
Both Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant presents five sentencing issues for our review:
1. Was the re-imposition of essentially the same sentence at the
re-sentencing hearing improper?
2. Did the re-sentencing violate Appellant’s constitutional due
process rights under North Carolina v. Pearce, 295 U.S. 711
(1989), because the [trial court] increased Appellant’s
sentence on various charges? Did the [trial court] not justify
the increases as required under Commonwealth v. Barnes,
2017 WL 2927566, at *11 (Pa. Super. 2017) and
Commonwealth v. Walker, 568 A.2d 201, 205 (Pa. Super.
1989)?
3. Did the [c]ourt fail to state on the record, the proper application
of the sentencing guidelines, and a contemporaneous
statement for reasons for the consecutive nature of the
sentences?
4. Do the questions presented, supra, raise a substantial
question as to whether the sentence violated a specific
provision of the sentencing code or is contrary to the
“fundamental norms underlying the sentencing process.” See
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987);
Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002);
Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. 2005).
5. Does the substantial question requirement of Pennsylvania
Rule of Appellate Procedure 2119(f) violate Appellant’s right to
appeal under the Pennsylvania Constitution Article V Section 9,
to review of a court of record’s decision by an appellate court?
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a. Additionally, does the substantial question rule
violate Pennsylvania Constitution Article V Section
9, when Appellant only raises sentencing issues on
direct appeal?
Appellant’s Brief at 8-9.
However, the argument section of Appellant’s brief has only two
sections, titled “THE SENTENCE SHOULD BE MODIFIED,” and “CLAIMS UNDER
THE PENNSYLVANIA CONSTITUTION.” See id. at 17, 20-21. Appellant is in
clear violation of the Pennsylvania Rules of Appellate Procedure, which state:
The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part—
in distinctive type or in type distinctively displayed—the particular
point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
The above deficiency notwithstanding, we proceed to address the
substance of Appellant’s claims. First, we recognize that Appellant is
challenging the discretionary aspects of his sentence.1,2 “The right to
appellate review of the discretionary aspects of a sentence is not absolute,
and must be considered a petition for permission to appeal.”
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1While Appellant’s second issue appears to be a constitutional claim, we have
held that a judicial vindictiveness claim is a challenge to the discretionary
aspects of sentencing. Commonwealth v. Robinson, 931 A.2d 15, 22 (Pa.
Super. 2007) (“[A] claim of vindictiveness is a waivable challenge to the
discretionary aspects of the sentence.”).
2Appellant’s fourth issue generally claims that Appellant has raised substantial
questions. Because we find that Appellant has raised substantial questions,
we forgo any further discussion of this issue.
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of the test by raising
his discretionary sentencing claims in a timely post-sentence motion, filing a
timely notice of appeal, and including in his brief a Rule 2119(f) concise
statement. See Appellant’s Brief at 6-7. Therefore, we examine whether
Appellant presents substantial questions for our review.3
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3 In determining whether Appellant has raised a substantial question, “[w]e
cannot look beyond the statement of questions presented and the prefatory
[Rule] 2119(f) statement to determine whether a substantial question exists.”
Commonwealth v. Barnes, 167 A.3d 110, 123 (Pa. Super. 2017) (en banc)
(citing Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013).
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Appellant argues that in re-sentencing him, the trial court “violate[d]
Appellant’s [constitutional] due process rights under [North Carolina v.
Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794 (1989)]. Appellant’s Brief at 8. He also claims that the
trial court failed to adequately state its reasons for its sentence on the record.
Id. Accordingly, Appellant has raised substantial questions for our review.
See Barnes, 167 A.3d at 123 (“[I]t is settled that [a]ppellant’s claim that his
sentence on remand was a product of vindictiveness presents a substantial
question for our review.”) (citation omitted); Commonwealth v. Simpson,
829 A.2d 334, 338 (Pa. Super. 2003) (a substantial question is raised where
the defendant claimed “that the trial court failed to sufficiently state its
reasons for the sentence imposed.”) (citation omitted).
We thus review Appellant’s sentencing claims mindful of the following:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations
omitted).
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Appellant’s first discretionary claim4 asserts that the trial court was
judicially vindictive by “essentially impos[ing] the same aggregate sentence
at re-sentencing.” Appellant’s Brief at 8.
The United States Supreme Court in Pearce stated:
Due process of law . . . requires that vindictiveness against a
defendant for having successfully attacked his first conviction
must play no part in the sentence he receives after a new trial.
And since fear of such vindictiveness may unconstitutionally deter
a defendant’s exercise of the right to appeal or collaterally attack
his first conviction, due process also requires that a defendant be
freed of apprehension of such a retaliatory motivation on the part
of the sentencing judge.
In order to assure the absence of such a motivation, we have
concluded that whenever a judge imposes a more severe sentence
upon a defendant after a new trial, the reasons for his doing so
must affirmatively appear. Those reasons must be based upon
objective information concerning identifiable conduct on the part
of the defendant occurring after the time of the original sentencing
proceeding. And the factual data upon which the increased
sentence is based must be part of the record, so that the
constitutional legitimacy of the increased sentence may be fully
reviewed on appeal.
Pearce, 395 U.S. at 725-26.
This Court has held that “Pearce’s rationale for providing reasons on
the record applies also when the original sentence is vacated and a second
sentence is imposed without an additional trial.” Barnes, 167 A.3d at 110
(citation omitted). Absent evidence that a sentencing increase is justified,
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4 For ease of review, we combine the analyses of Appellant’s first and second
questions presented because they are interrelated and Appellant combines
these two issues, along with his third question presented, into one argument
section in his brief. See Appellant’s Brief at 17-20.
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“the presumption of vindictiveness cannot be rebutted.” Commonwealth v.
Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1990).
However, as recently noted by the en banc panel of this Court in
Barnes, the presumption can be rebutted where a trial court imposes higher
sentences on certain counts during re-sentencing to reach the same aggregate
sentence as previously imposed and preserve its sentencing scheme. Barnes,
167 A.3d at 124 (“[A] judge can duplicate the effect of the original sentencing
plan by adjusting the sentences on various counts so that the aggregate
punishment remains the same.”). This Court in Barnes analyzed our decision
in Commonwealth v. McHale, 924 A.2d 664 (Pa. Super. 2007), overruled in
part on other grounds by Commonwealth v. Robinson, 931 A.2d 15 (Pa.
Super. 2007):
In [McHale], we upheld the trial court’s resentencing of the
defendant when his conviction on the most serious charges, two
counts of aggravated assault, previously had been based on
insufficient evidence. After remand, to maintain the same total
aggregate sentence as originally imposed, the trial court increased
the overall sentence on the surviving counts. Noting that the
aggregate sentence remained unchanged, we upheld the new
sentence. In so doing, we noted:
[O]ur conclusion is not altered by the fact that remand
and resentencing were prompted by reversal of two of
[the defendant’s] convictions. . . . Whether remand is
the result of reversal of one or more convictions or
vacation of an illegal sentence, we conclude that the
trial court has the same discretion and responsibilities
in resentencing.
Barnes, 167 A.3d at 124-25 (citations omitted).
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Here, the trial court did not impose a “vindictive sentence” on Appellant
because aggregate sentence after remand was decreased, which Appellant
concedes. See Appellant’s Brief at 13-15. Consistent with our holding in
Barnes, it is apparent that the trial court increased Appellant’s IDSI sentence
not out of vindictiveness, but in an attempt to preserve the integrity of its
original sentencing scheme; a goal specifically referenced by the trial court at
Appellant’s re-sentencing. N.T., 4/10/17, at 18 (“[I]t is my intent to achieve
through sentencing today what the court—what I was able to achieve back on
July 2nd of 2014.”). As the trial court’s desire to preserve its previous
sentencing scheme defeats the presumption of vindictiveness, and Appellant’s
aggregate sentence was not increased at re-sentencing, we do not find that
his sentence was a result of judicial vindictiveness. Therefore, Appellant is
not entitled to relief. Barnes, 167 A.3d at 125.
Appellant also asserts that the trial court failed to place adequate
reasoning on the record for the sentence. Appellant’s Brief at 8. The relevant
portion of 42 Pa.C.S.A. § 9721(b) states:
In selecting from the alternatives set forth in subsection (a), the
court shall follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
Id.
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In addition:
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors. Additionally, the sentencing
court must state its reasons for the sentence on the record. 42
Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the
record by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all
relevant factors.
Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (some citations omitted).
Instantly, the trial court at re-sentencing commented at length:
I have had the opportunity to review the presentence
investigation that was originally prepared, but then updated by
the Department of Probation because of the change in the law
regarding the imposition of mandatory minimums for some of the
offenses for which [Appellant] was convicted. I have also had the
opportunity to review the letter submitted by the victim in this
case[.] And I did have the opportunity to preside over the trial.
So, I am now prepared to impose sentence. I do, in fashioning
the sentence that I’m imposing here today, I did take into
consideration the standard guideline range as well as the
opportunity to sentence outside of the standard guideline range.
And I will tell you, my sentence on all of the charges is going to
be within the standard guideline range. However, it is my intent
to achieve through sentencing today what the court—what I was
able to achieve back on July 2nd of 2014. I do agree with the
Commonwealth in that sense in that at that time the
Commonwealth had invoked mandatory minimum sentences. And
the court if I wanted to, I would have been unable to deviate
outside of that particular sentencing scheme. But now, the
mandatory minimum sentences are no longer permissible in the
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state of Pennsylvania. We’re back really to square one,
sentencing without the imposition of any mandatory minimum
sentences. So, but in terms of value and weight of the sentencing
scheme and having listened to the testimony and having presided
over the trial and taking everything into consideration, the court
does recognize the very persuasive arguments here today, but I
am mindful of the serious nature and gravity of these offenses,
the violation of trust, many, many troubling aspects of this case.
So, in Count 1, rape, it is going to be the order of this court
that [Appellant] be sentenced to serve a period of incarceration in
a state correctional institution for a minimum of 5 to a maximum
of 10 years. That sentence is within the standard range. With
respect to Count 2, [IDSI], it’s going to be the order of this court
that [Appellant] be sentenced to serve a minimum of 5 to a
maximum of 10 years in a state correctional institution
consecutive to Count 1. With respect to Count 3 . . ., [IDSI], it’s
going to be the order of this court that [Appellant] be sentenced
to serve a sentence of 5 to 10 years consecutive to Counts 1 and
2. With respect to Count 4, aggravated indecent assault, it’s going
to be the order of this court that [Appellant] be sentenced to serve
a period of incarceration in a statement correctional institution for
2 to 4 years consecutive. With respect to Count 5, incest, it’s the
order of this court that [Appellant] be sentenced to serve a period
of 1 to 2 years in a state correctional institution, consecutive. With
respect to Count 6, the statutory sexual assault, it’s the order of
this court that [Appellant] be sentenced to serve a period of
incarceration in the state correctional institution, 1 to 2 years,
consecutive. Count 7, endangering the welfare of a child, it’s
going to be the order of this court that [Appellant] be sentenced
to serve a period of incarceration for 1 to 2 years, consecutive.
Count 8, corruption of minors, it’s going to be the order of this
court that the defendant be sentenced to serve a minimum of 3
months to a maximum of 12 months in a state correction
institution, concurrent. Count 9, indecent assault, the
Commonwealth concedes that Count 9 merges for purposes of
sentencing with Count 4, aggravated indecent assault. So the
aggregate sentence here today is to 20 to 40 years in a state
correctional institution. [Appellant] is not eligible for the RRRI
reduction in sentence. And I must now advise you, sir, of the
reasons for the sentence here today. This sentence recognizes
the nature and gravity of the offenses. It recognizes the unusual
circumstance that the victim of these crimes is the adopted
daughter of [Appellant]. And that, initially, she was the foster
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child of [Appellant] and later adopted by [Appellant] and his wife.
It recognizes that this sentence is necessary for the protection of
the community and [Appellant’s] needs for punishment and
rehabilitation.
N.T., 4/10/17, at 17-22.
The trial court further opined:
[Appellant] asserts that his due process rights were violated
because the sentence imposed by this court at the resentencing
hearing was “essentially the same sentence” as the original
sentence. He further asserts the trial court erred when it
increased his sentence on various charges without stating the
reasons justifying the increases on the record. This simply is not
true. (See N.T. 4/10/17 at pg. 17). Additionally, he fails to state
any reasons for his conclusion, nor does he cite to any evidence
in the transcripts.
The sentence imposed by this court at the resentencing
hearing was clearly not the result of judicial vindictiveness. This
court stated that its intent was to preserve the integrity of the
original sentencing scheme. (See N.T. 4/10/17 at pg. 17).
Furthermore, [Appellant’s] due process rights were not violated
because his aggregate sentence was actually less than the one
originally imposed. Thus, [Appellant’s] boilerplate assertions,
without more, cannot withstand judicial scrutiny. See
Commonwealth v. Hale, 924 A.2d 664, 670 (Pa. Super. 2007)
(“preserving the integrity of the original sentencing scheme is a
legitimate sentencing concern, and sentences may be adjusted so
that the aggregate punishment remains the same upon
resentencing.”). Additionally, [Appellant] alleges this court
abused its discretion by imposing consecutive sentences for
various offenses. However, Pennsylvania courts have ruled to the
contrary. See McHale, supra 924 A.2d at 673 (holding that, upon
resentencing, re-imposition of the same aggregate sentence by
changing sentences on various charges to run consecutively rather
than concurrently was within the trial court’s discretion.)[.]
Finally, this court provided proper and legitimate reasons
when it resentenced [Appellant] to [an] aggregate term of twenty
(20) to (40) years of imprisonment. This [c]ourt made it clear the
reasons for the sentence[.] . . . [A]ppellant’s assertions are
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boilerplate and are not supported by any evidence contained in
the record.
Trial Court Opinion, 10/5/18, at 7-8 (footnotes omitted, underlining in
original).
We agree with the trial court. At Appellant’s re-sentencing, the trial
court specifically stated on the record that it “had the opportunity to review
the presentence investigation [report] that was originally prepared, but then
updated by the Department of Probation[.]” N.T., 4/10/17, at 17-18. As the
trial court indicated that it was informed by Appellant’s pre-sentence
investigation report, it properly satisfied the requirement of Section 9721(b)
that the reasons for the imposition of sentence be placed on the record.
Moreover, the trial court provided commentary acknowledging the gravity of
the offenses committed, Appellant’s relationship to the victim, the necessity
of protecting the community, and Appellant’s need for punishment and
rehabilitation. See N.T., 4/10/17, at 21-22.
Ultimately, the trial court determined that Appellant’s crimes
necessitated an aggregate sentence of 20 to 40 years; which includes
consecutive sentences. See Commonwealth v. Zirkle, 107 A.3d 127, 133
(Pa. Super. 2014) (“We have stated that the imposition of consecutive rather
than concurrent sentences lies within the sound discretion of the sentencing
court.”) (citations omitted); see also McHale, 924 A.2d at 673 (“That the
trial court on remand maintained the total aggregate length of [a]ppellant’s
sentence . . . by imposing the remaining sentences consecutively instead of
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concurrently does not alter the conclusion that the total aggregate length was
not increased.”) (emphasis omitted). Thus, the record reflects that the trial
court properly complied with Section 9721(b) by placing adequate reasons for
Appellant’s sentence on the record, and did not abuse its discretion in
imposing consecutive sentences.
In his fifth issue, Appellant asserts that “[42 Pa.C.S.A. §] 9781(b) and
[Pa.R.A.P.] 2119(f) establish an unconstitutional restraint on Appellant’s
constitutional right to an appeal,” and “asks this Court to strike down Rule
2119(f), [Section] 9781(b), [Section] 9781(f), and overrule the case law
surrounding the discretionary aspects of sentencing.” Appellant’s Brief at 21,
24. In averring that Section 9781 and Rule 2119(f) violate the Pennsylvania
Constitution, Appellant requests that we overrule our decision in
Commonwealth v. McFarlin, 587 A.2d 732 (Pa. Super. 1991) (en banc) (Del
Sole, J., dissenting), affirmed, 607 A.2d 730 (Pa. 1992) (per curiam), which
held that “[Section] 9781(b) is a reasonable regulation of the right to appeal.”
Id. at 735. Appellant suggests we adopt Judge Del Sole’s dissenting opinion,
which argued that Section 9781(b) violated article V, section 9 of the
Pennsylvania Constitution.5 Id. at 739. Appellant’s issue lacks merit because
this Court has previously held that Section 9781(b) is constitutional.
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5Article V, section 9 of the Pennsylvania Constitution provides: “There shall
be a right of appeal in all cases to a court of record form a court not of record;
and there shall also be a right of appeal from a court of record or from an
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“As the constitutionality of a statute presents a pure question of law,
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa. Super. 2014) (citing
Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013). “We note that duly
enacted legislation carries with it a strong presumption of constitutionality.”
Id. (citation omitted). “A presumption exists [t]hat the General Assembly
does not intend to violate the Constitution of the United States or of this
Commonwealth when promulgating legislation.” Id. (citations omitted).
Therefore, “a statute will not be found unconstitutional unless it clearly,
palpably, and plainly violates the Constitution.” Commonwealth v. Neiman,
84 A.3d 603, 611 (Pa. 2013) (citation omitted). “If there is any doubt as to
whether a challenger has met this high burden, then we will resolve that doubt
in favor of the statute’s constitutionality.” Id. (citation omitted).
Section 9781, in relevant part, provides:
(b) Allowance of appeal.--The defendant or the Commonwealth
may file a petition for allowance of appeal of the discretionary
aspects of a sentence for a felony or a misdemeanor to the
appellate court that has initial jurisdiction for such appeals.
Allowance of appeal may be granted at the discretion of the
appellate court where it appears that there is a substantial
question that the sentence imposed is not appropriate under this
chapter. . . .
(f) Limitation on additional appellate review.--No appeal of
the discretionary aspects of the sentence shall be permitted
____________________________________________
administrative agency to a court of record or to an appellate court, the
selection of such court to be as provided by law; and there shall be such other
rights of appeal as may be provided by law.”
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beyond the appellate court that has initial jurisdiction for such
appeals.
42 Pa.C.S.A. § 9781(b), (f). Pennsylvania Rule of Appellate Procedure 2119(f)
reads:
(f) Discretionary aspects of sentencing. An appellant who
challenges the discretionary aspects of sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence. The statement
shall immediately precede the argument on the merits with
respect to the discretionary aspects of the sentence.
Id.
Upon review, we are not persuaded by Appellant’s constitutional
challenge to Section 9781(b).6 Appellant concedes, Section 9781(b) has been
explicitly held by this Court to be a “reasonable regulation upon the right to
appeal,” and therefore “does not violate the Pennsylvania Constitution.” 7
McFarlin, 587 A.2d at 733. Our decision in McFarlin was affirmed by the
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6 While Appellant challenges the constitutionality of Pa.R.A.P. 2119(f), we
recognize that Rule 2119(f) is merely the mechanism for which Section
9781(b) compliance is mandated. We therefore treat his fifth issue as a
constitutional challenge to Section 9781(b). See Appellant’s Brief at 22
(“Appellant asks this Honorable Court to find 42 Pa.C.S.A. § 9781(b) and
Pa.R.A.P. 2119(f) unconstitutionally [restrictive on] the right to an appeal
under Article V, § 9 of the Pennsylvania Constitution.”).
7 Appellant’s Brief at 22 (“The majority in McFarlin held the right to appeal is
absolute, but the limitation imposed by [Section] 9781(b) is a reasonable
control of the exercise of the right to appeal.”) (citation omitted, underlining
in original).
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Pennsylvania Supreme Court in a per curiam order. Commonwealth v.
McFarlin, 607 A.2d 730 (Pa. 1992) (per curiam). See also Commonwealth
v. Dodge, 77 A.3d 1263, 1282 n.4 (Pa. Super. 2013) (“In a five-to-four
decision, this Court rejected a constitutional challenge under Article V, § 9 to
42 Pa.C.S. § 9871. Our Supreme Court affirmed, without discussion, via a
per curiam order.”) (citations omitted). As our decision in McFarlin remains
good law, we hold that Section 9781(b) does not violate the Pennsylvania
Constitution and this issue does not warrant relief.8
In sum, Appellant’s claims are without merit and we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/16/2019
____________________________________________
8 See also Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super.
1999) (“It is not the prerogative of an intermediate appellate court to
enunciate new precepts of law or to expand existing legal doctrines. Such is
a province reserved to the Supreme Court.”); Commonwealth v. Montini,
712 A.2d 761, 769 (Pa. Super. 1998) (“[T]he Superior Court is an error
correcting court and we are obliged to apply the decisional law as determined
by the Supreme Court of Pennsylvania.”).
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