Com. v. Lane, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADAM RUSSELL LANE,
Appellant No. 1232 MDA 2015
Appeal from the Judgment of Sentence June 18, 2015
in the Court of Common Pleas of Wyoming County
Criminal Division at No.: CP-66-CR-0000436-2014
BEFORE: BOWES, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 29, 2016
Appellant, Adam Russell Lane, appeals from the judgment of sentence
imposed pursuant to his open guilty plea to statutory sexual assault,
unlawful contact with a minor, and corruption of minors.1 We affirm.
We take the following facts from the trial court’s September 15, 2015
opinion and our independent review of the record. On April 4, 2014, in a
case preceding this one, Appellant pleaded guilty to corruption of minors for
his conduct of engaging in sexual intercourse with a minor under the age of
sixteen between September 1, 2012, and April 3, 2013. On June 17, 2014,
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3122.1(a)(1), 6318(a)(1), and 6301(a)(1)(ii),
respectively.
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Appellant was sentenced to a term of not less than six nor more than
twenty-three-and-one-half months’ incarceration.
On February 4, 2015, the Commonwealth filed a criminal information
against Appellant in the present case. The information charged Appellant
with multiple counts of involuntary deviate sexual intercourse and related
charges for his conduct of engaging in sexual intercourse with a second
minor under the age of sixteen between September 1, 2013, and April 30,
2014.
On February 6, 2015, Appellant pleaded guilty in the instant case to
the charges of statutory sexual assault, unlawful contact with a minor, and
corruption of minors. Prior to sentencing, Appellant was assessed by the
Sexual Offender’s Assessment Board, which concluded that he did not meet
the criteria for a sexually violent predator. On June 10, 2015, with the
benefit of a pre-sentence investigation report (PSI), the court sentenced
Appellant to consecutive terms of incarceration of not less than sixteen nor
more than forty-eight months for statutory sexual assault, not less than
eighteen nor more than forty-eight months for unlawful contact with a
minor, and not less than fourteen nor more than thirty-six months for
corruption of minors, resulting in an aggregate term of not less than forty-
eight nor more than 132 months’ incarceration. On June 18, 2015, the court
entered an amended order to alter the language pertaining to his sexual
offender registration requirements. Appellant filed a timely post-sentence
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motion on June 22, 2015, which the trial court denied the same day.
Appellant timely appealed.2
Appellant raises five issues for this Court’s review:
I. Did the sentencing court improperly treat Appellant as a
recidivist when the court enhanced Appellant’s sentence
based on his prior conviction because the conduct giving
rise to the current case occurred before Appellant’s
sentencing in the prior case?
II. Is Appellant serving an illegal and unconstitutional
sentence because the sentencing court imposed another
punishment for a prior offense the court had already
sentenced Appellant for?
III. Were Appellant’s three sentences all aggravated sentences
because the minimums fell at the start of the aggravated
guidelines?
IV. Did the sentencing court abuse its discretion and enter a
clearly unreasonable sentence when the court imposed
three consecutive sentences at the cusp of the standard
and aggravated ranges without placing any valid reasons
on the record except that “any lesser of a sentence would
depreciate the nature of [Appellant’s] actions[?”]
V. Does the substantial question requirement under Rule
2119(f) violate Appellant’s right under the Pennsylvania
Constitution to review of a court of record’s decision by an
appellate court?
(Appellant’s Brief, at 3).
We will address Appellant’s first and fourth issues first because they
both challenge the discretionary aspects of his sentence, which “must be
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2
On August 5, 2015, Appellant filed a timely statement of errors complained
of on appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The
court filed an opinion on September 15, 2015. See Pa.R.A.P. 1925(a).
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considered a petition for permission to appeal.” Commonwealth v. Best,
120 A.3d 329, 348 (Pa. Super. 2015) (citation omitted). To preserve claims
relating to the discretionary aspects of a sentence properly, an appellant
must first raise them with the trial court. See Commonwealth v. Foster,
960 A.2d 160, 163 (Pa. Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011).3
Further,
[t]he Rules of Appellate Procedure mandate that, to obtain
review of the discretionary aspects of a sentence, the appellant
must include in his brief a Concise Statement of Reasons Relied
Upon for Allowance of Appeal. See Pa.R.A.P. 2119(f). This
statement must raise a substantial question as to whether the
trial judge, in imposing sentence, violated a specific provision of
the Sentencing Code or contravened a fundamental norm of the
sentencing process.
Best, supra at 348 (case citations and quotation marks omitted).
In the instant case, Appellant included a Rule 2119(f) statement in his
brief, in which he maintains that the trial court “improperly relied on [his]
2014 conviction to enhance the length of his sentence” and “failed to place
any valid reasons on the record in support of [his] sentence,” which violated
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3
Here, in his post-sentence motion, Appellant raised his first issue, that the
court improperly relied on his 2014 conviction when sentencing him in the
present case. (See Motion for Reconsideration and Extraordinary Relief,
6/22/15, at 2-3). However, he failed to raise his fourth claim, that the court
abused its discretion by failing to place adequate reasons on the record in
support of his sentence. (See id.). Therefore, we deem Appellant’s fourth
claim waived for his failure to raise it with the trial court. See Foster,
supra at 163; see also Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Moreover, for the reasons discussed below, it would not merit relief.
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“our fundamental sentencing norms.” (Appellant’s Brief, at 11-12). These
claims raise a substantial question. See Commonwealth v. Coulverson,
34 A.3d 135, 143 (Pa. Super. 2011) (finding claim challenging trial court’s
alleged failure to offer specific reasons for appellant’s sentence pursuant to
section 9721(b) raises substantial question); Commonwealth v. P.L.S.,
894 A.2d 120, 127 (Pa. Super. 2006), appeal denied, 906 A.2d 542 (Pa.
2006) (“A substantial question exists where the appellant presents a
plausible argument that the sentence violates a provision of the Sentencing
Code or is contrary to the fundamental norms underlying our sentencing
scheme.”) (citation omitted). Therefore, we will address the merits of
Appellant’s claims.
Our standard of review of a sentencing challenge is well-settled:
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. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015)
(citation omitted).
When imposing a sentence, the sentencing court must
consider the factors set out in 42 [Pa.C.S.A.] § 9721(b), that is,
the protection of the public, gravity of offense in relation to
impact on victim and community, and rehabilitative needs of the
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defendant. And, of course, the court must consider the
sentencing guidelines.
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015), appeal
denied, 126 A.3d 1282 (Pa. 2015) (citation and quotation marks omitted).
“Where, as here, the trial court has the benefit of a pre-sentence report, we
presume that the court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with any
mitigating factors.” Johnson, supra at 827 (citation omitted).
In Appellant’s first issue, he argues that the trial court improperly
treated him as a recidivist by considering his 2014 conviction for purposes of
sentencing. (See Appellant’s Brief, at 13-16). Specifically, he argues that,
because he was not sentenced in that case at the time he committed illegal
acts that form the basis of the current legal action, and the 2014 conviction
was not included in his prior record score, the court abused its discretion in
considering it. (See id.). Appellant’s issue does not merit relief.
Initially, Appellant properly asserts that, pursuant to section 303.5(c)
of the Pennsylvania Sentencing Guidelines, un-sentenced convictions, “[i]f
no sentence has yet to be imposed on an offense, the offense shall not be
counted in the calculation of the Prior Record Score.” (Appellant’s Brief, at
13 (citing 204 Pa. Code. § 303.5(c))). In fact, he concedes that his 2014
conviction was not included in his prior record score. (See id. at 15).
However, we disagree with Appellant’s subsequent argument that, because
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the prior conviction was not included in his prior record score, the trial court
abused its discretion in considering it. (See id. at 13, 15).
Pursuant to section 303.5(d) of the Pennsylvania Sentencing
Guidelines, Adequacy of Prior Record Score, expressly states, “[t]he court
may consider at sentencing prior convictions . . . not counted in the
calculation of the Prior Record Score, in addition to other factors deemed
appropriate by the court.” 204 Pa. Code 303.5(d). In fact, it is well-settled
that “prior convictions, of whatever nature, with law enforcement
authorities, are unquestionably among the circumstances to be scrutinized in
determining the appropriate sentence.” Commonwealth v. Kraft, 737
A.2d 755, 757 (Pa. Super. 1999), appeal denied, 747 A.2d 366 (Pa. 1999)
(citation omitted). Furthermore, consideration of earlier convictions not
included in a prior record score “is not only permissible, justice demands it.”
Id.
Here, Appellant pleaded guilty to corruption of minors in the first case
on April 4, 2014. (See Appellant’s Brief, at 5). The conduct complained of
in the current case occurred “on separate and distinct dates” between
September 1, 2013 through April 30, 2014. (N.T. Guilty Plea, 2/06/15, at
13). Therefore, we conclude that the trial court did not abuse its discretion
in considering Appellant’s prior conviction for corruption of minors when
imposing sentence in this case. See 204 Pa. Code 303.5(d); Johnson,
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supra at 826; Kraft, supra at 757. Appellant’s first issue does not merit
relief.
Moreover, while we are cognizant of the “recidivist philosophy” on
which Appellant relies, (Appellant’s Brief, at 13, 15-16), it generally has
been applied to cases involving whether a former conviction should be
considered a prior conviction for purposes of a recidivist statute. It does not
stand for the proposition Appellant advances, that because he was not
sentenced on his first crime at the time he committed the illegal acts in the
case herein, the court abused its discretion in considering the prior
conviction. (See id. at 3, 15). For example, as stated by the Pennsylvania
Supreme Court:
the general purpose of graduated sentencing laws “is to punish
more severely offenders who have persevered in criminal activity
despite the theoretically beneficial effects of penal discipline.”
[Commonwealth v.] Shiffler, [] 879 A.2d [185,] 195 [(Pa.
2005)] (quoting Commonwealth v. Dickerson, [] 621 A.2d
990, 992 ([Pa.] 1993)) (emphasis omitted). Stated another
way, the purpose of such laws is to enhance punishment “when
the defendant has exhibited an unwillingness to reform his
miscreant ways and to conform his life according to the law.”
[Id.]. Accordingly, [f]ollowing the recidivist logic, each strike
that serves as a predicate offense must be followed by
sentencing and, by necessary implication, an opportunity for
reform, before the offender commits the next strike. However,
“[t]he recidivist philosophy, while a valid policy, is not the only
valid sentencing policy, nor is it a constitutional principle or
mandate,” and the legislature is free to enact a statute “which
clearly expresses a different application.” [Id.] at 196.
Commonwealth v. Jarowecki, 985 A.2d 955, 961 (Pa. 2009) (footnote,
and some quotation marks and case citations omitted).
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In the case sub judice, the trial court did not sentence Appellant on a
second “strike” pursuant to a “graduated sentencing law.” Id. Instead, the
the trial court considered the prior crime as a factor it “scrutinized in
determining the appropriate sentence.” Kraft, supra at 757.
Indeed, the cases on which Appellant relies for his recidivist policy
argument all considered the philosophy in relation to a “graduated
sentencing law.” (Appellant’s Brief, at 13-15). For example, Appellant relies
on Dickerson, supra, for the theory that “one must have the opportunity
for rehabilitation before being punished more severely for committing a
second crime.” (Id. at 13). However, in Dickerson, the High Court
examined the language of the recidivist statute, 18 Pa.C.S.A. § 9714, which
imposes a five-year mandatory minimum sentence where “the previous
conviction occurred within seven years of the date of the commission of the
instant offense.” Dickerson, supra at 992. In considering when a prior
conviction could be considered for purposes of section 9714, our Supreme
Court held “that a prior record score under the sentencing guidelines cannot
include a prior offense which has not resulted in a conviction before the later
offense was committed.” Id. at 993.
Here, Appellant’s prior conviction was not included in his prior record
score. In light of the well-settled principle that consideration of earlier
convictions not included in a prior record score “is not only permissible,
justice demands it[,]” Kraft, supra at 757, we decline to read the holding of
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Dickerson as standing for the proposition that a court shall not consider a
prior conviction if a defendant has not been sentenced on it at the time of
his commission of a second crime.
Likewise, we are not legally persuaded by the cases Appellant relies on
for his argument that the court stacked his prior conviction on to his current
ones for the purpose of sentencing. (See Appellant’s Brief, at 14-15). For
example, in Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000),
appeal denied, 759 A.2d 920 (Pa. 2000), this Court found that the trial court
abused its discretion in sentencing the defendant above the mandatory
minimum where “the legislature already factored that consideration into the
mandatory minimum three-year sentence pursuant to 18 Pa.C.S.[A.] §
7508(a)(3)(i).” Goggins, supra at 732. Goggins is inapposite to the case
before us, because here, Appellant was not sentenced above a statutorily
prescribed mandatory minimum on the basis of his prior conviction. For all
of these reasons, Appellant’s first issue lacks merit.
In his fourth issue, Appellant argues that the trial court abused its
discretion by imposing an unreasonable sentence where it “had no valid
reasons for imposing three consecutive sentences at the cusp of the
standard and aggravated guidelines.” (Appellant’s Brief, at 25). As
previously noted, this issue is waived for Appellant’s failure to present it to
the trial court. (See supra at 4 n.3). However, it also would lack merit,
even if properly preserved in the trial court.
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It is well-settled that:
When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S.[A.] § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the
defendant. . . . [A]nd, of course, the court must consider the
sentencing guidelines.
Coulverson, supra at 144 (citation omitted). “[I]f the sentencing court,
after considering the appropriate section 9721 sentencing factors, states
valid reasons for its sentence, which are supported by the record, this Court
must affirm the decision . . . .” Commonwealth v. Marts, 889 A.2d 608,
616 (Pa. Super. 2005) (citation omitted). “[W]hen sentencing an appellant,
the trial court is permitted to consider the seriousness of the offense and its
impact on the community.” Id. at 615 (citation and internal quotation
marks omitted).
Here, we first observe that the trial court considered “an extensive
[PSI.]” (Trial Court Opinion, 9/15/15, at 4). Therefore, “we presume that
the court was aware of relevant information regarding [Appellant’s]
character and weighed those considerations along with any mitigating
factors.” Johnson, supra at 827 (citation omitted). Additionally, pursuant
to section 9741(b), the trial court set forth its reasons for imposing its
sentence on Appellant, including “the serious nature of the offense, the
offense occurred while [Appellant] was pending sentencing for a similar
offense[,] . . . the sentence is within the standard range guidelines[,] and
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any lesser of a sentence would depreciate [Appellant’s] conduct.” (N.T.
Sentencing, 6/10/15, at 10; see also id. at 11-13).
Hence, based on our review of the entire record in this matter, which
reveals a pattern of Appellant’s engaging in illegal sexual contact with
minors under sixteen years of age, we conclude that the trial court did not
abuse its discretion in imposing Appellant’s sentence where it “state[d] valid
reasons for its sentence, which are supported by the record[.]” Marts,
supra at 616; see also Johnson, supra at 827. Appellant’s fourth
challenge would not merit relief.
We now turn to Appellant’s second, third, and fifth claims.
In Appellant’s second claim, he maintains that the court erred as a
matter of law when it violated his protection against double jeopardy by
“impos[ing] another punishment for a prior offense for which [it] had already
sentenced [him].” (Appellant’s Brief, at 16). Appellant’s issue does not
merit relief.
The proscription against twice placing an individual in
jeopardy of life or limb is found in both the Fifth Amendment to
the United States Constitution, as well as in Article 1, Section 10
of the Pennsylvania Constitution. Yet, as the Pennsylvania
Supreme Court has held, Pennsylvania’s Double Jeopardy Clause
involves the same meaning, purpose, and end [as the Double
Jeopardy Clause in the United States Constitution], thus,
[Pennsylvania’s clause] has generally been construed as
coextensive with its federal counterpart.
The Double Jeopardy Clause embodies three protections:
[i]t protects against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for the
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same offense after conviction. And it protects against multiple
punishments for the same offense.
Commonwealth v. Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013),
appeal denied, 84 A.3d 1062 (Pa. 2014) (citations, quotation marks, and
footnote omitted). A question regarding whether an individual’s right
against double jeopardy has been violated is a question of law; therefore,
our standard of review is de novo and our scope of review is plenary. See
id.
Here, Appellant refers to a discrete statement made by the trial court
in its September 15, 2015 opinion about “the totality of [Appellant’s]
sexually related offenses[,]” as evidence that the trial court sentenced him
twice for his prior offense. (Appellant’s Brief, at 17). However, he fails to
identify on the record where a double sentence was, in fact, imposed. (See
id.). In fact, Appellant’s argument that the court violated his right against
double jeopardy is belied by the record. At sentencing, the court merely
considered Appellant’s prior conviction as one of the factors for its decision,
and then expressly sentenced him on only the three crimes to which he
pleaded guilty. (See N.T. Sentencing, 6/10/15, at 9-13). Therefore, after
our de novo review, we conclude that the trial court did not impose an illegal
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sentence by violating Appellant’s rights against double jeopardy. See
Hallman, supra at 1260. Appellant’s second issue does not merit relief.4
In his third claim, Appellant asks this Court to determine as a matter
of law that the trial court sentenced him to “aggravated sentences because
the minimums fell at the start of the aggravated guidelines[.]” (Appellant’s
Brief, at 18).5 Appellant’s issue lacks merit.
Appellant concedes that, where a “court explicitly states its intention to
impose a standard sentence, then a sentence at the cusp of the standard
and aggravated ranges is a standard guideline sentence.” (Appellant’s Brief,
at 18) (citing Commonwealth v. Lopez, 627 A.2d 1229, 1231 (Pa. Super.
1993), implied overruling on different grounds recognized by,
Commonwealth v. Rosario-Hernandez, 666 A.2d 292 (Pa. Super. 1995)
(“Unless the trial court states to the contrary, this [C]ourt will presume
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4
Appellant also takes issue with the fact that the trial court stated that he
engaged in illegal sexual contact with a minor for one-and-one-half years
when the behavior in this case only occurred for an alleged eight months,
and the contact in the first case occurred for approximately seven months.
(See Appellant’s Brief, at 17). However, we read the court’s comment, not
as evidence of its improper attempt to punish him twice for the first crime,
but as a general observation about Appellant’s character that included
continued inappropriate behavior.
5
Appellant also claims that the court erred in failing to put sufficient reasons
for his “aggravated” sentences on the record. (See Appellant’s Brief, at 18).
However, he failed to raise this issue in his statement of questions involved;
nor is it fairly suggested thereby. See Pa.R.A.P. 2116(a); (see also
Appellant’s Brief, at 3). Moreover, because we conclude that the trial court
imposed standard range sentences, this issue is moot.
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that a sentence at the bound of the standard and aggravated ranges falls in
the aggravated range.”)) (citation omitted) (emphasis added). Here, the
trial court expressly stated its intention to impose standard range sentences
on Appellant. (See N.T. Sentencing, 6/10/15, at 10-13). Therefore, we will
not presume that the trial court intended Appellant’s sentence to be in the
agggravated range. See Lopez, supra at 1231.
Moreover, Appellant invites us to overturn Lopez “to find as a
concrete rule that a sentence at the cusp of the guidelines between standard
and aggravated ranges is always an aggravated sentence.” (Appellant’s
Brief, at 20). This we cannot do. First, we remind Appellant that we grant
great deference to the sentence imposed by the trial court, and will only
vacate it if the court has committed an error of law or abuse of discretion.
See Johnson, supra at 826. Also, “[t]his Court is bound by existing
precedent under the doctrine of stare decisis and continues to follow
controlling precedent as long as the decision has not been overturned by our
Supreme Court.” Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super.
2014) (citation and footnote omitted). Therefore, we decline Appellant’s
invitation to overrule Lopez. Appellant’s fourth issue lacks merit.
Finally, in his fifth issue, Appellant challenges the requirements of 42
Pa.C.S.A. § 9781 and Pennsylvania Rule of Appellate Procedure 2119(f) on
the basis that they violate section nine of the Pennsylvania Constitution
because “they limit an appellant’s right to a direct appeal of his sentence.”
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(Appellant’s Brief, at 26; see id. at 26-28). Appellant’s issue lacks merit
where this Court already addressed a nearly identical argument and held
that section 9781(b) is constitutional.
We observe first that:
The Pennsylvania Supreme Court has consistently held
that enactments of the General Assembly enjoy a strong
presumption of constitutionality. All doubts are to be resolved in
favor of sustaining the constitutionality of the legislation. . . .
[W]e are obliged to exercise every reasonable attempt to
vindicate the constitutionality of a statute and uphold its
provisions. . . . Moreover, one of the most firmly established
principles of our law is that the challenging party must prove the
act clearly, palpably and plainly violates the constitution.
The power of judicial review must not be used
as a means by which the courts might substitute its
judgment as to public policy for that of the
legislature. The role of the judiciary is not to
question the wisdom of the action of [the] legislative
body, but only to see that it passes constitutional
muster.
Commonwealth v. Elia, 83 A.3d 254, 266-67 (Pa. Super. 2013), appeal
denied, 94 A.3d 1007 (Pa. 2014) (citations and quotation marks omitted).
In holding that section 9781(b) does not violate the Pennsylvania
Constitution, this Court observed:
The Pennsylvania Constitution guarantees a right of appeal
from a court of record:
There shall be a right of appeal in all cases to a
court of record from a court not of record; and there
shall also be a right of appeal from a court of record
or from an administrative agency to a court of record
or to an appellate court, the selection of such court
as to be provided by law; and there shall be such
other rights of appeal as may be provided by law.
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PA. CONST. art. V, § 9. The Judicial Code provides the
procedure for exercising this right when the issue on appeal is
the discretionary aspects of the sentence imposed following
criminal proceedings:
The defendant or the Commonwealth may file
a petition for allowance of appeal of the discretionary
aspects of a sentence for a felony or misdemeanor to
the appellate court that has 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.
42 Pa.C.S.A. § 9781(b). Focusing on the phrases “allowance of
appeal” and “granted at the discretion of the appellate court,”
McFarlin argues that this section, in effect, renders this type of
appeal discretionary in violation of the constitutional right to
appeal. We do not agree.
We recognize that this right has been construed as
absolute. We are also aware that § 9781(b) has been construed
as a limitation upon that right. Nonetheless, the existence of an
absolute right to appeal does not, in and of itself, render all
limitations governing the exercise of that right unconstitutional.
It has long been the law that both the legislature and the courts
have the authority to enact reasonable regulations controlling
the exercise of the constitutional right of appeal. All regulations
are, to some extent, limitations. If the limitation imposed by §
9781(b) is a reasonable control of the exercise of the right to
appeal, it is constitutionally valid.
We hold today that § 9781(b) is a reasonable
regulation of the right to appeal. . . . Only if the trial court
manifestly abuses its discretion will the sentence be disturbed. .
. . In effect, § 9781(b) merely requires an accused to indicate
how the trial court possibly abused its discretion before the
appellate court will consider the merits of his contentions as to
the discretionary aspects of his sentence.
* * *
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. . . We cannot say that the operation of § 9781(b) clearly,
plainly and palpably violates the constitution, despite the
phrases “allowance of appeal” and “granted at the discretion of
the court” which it contains. Therefore, we hold that 42
Pa.C.S.A. § 9781(b) is a reasonable regulation of the
exercise of the right to appeal; as such, it does not violate
Article V, Section 9, of the Pennsylvania Constitution.
Commonwealth v. McFarlin, 587 A.2d 732, 735-36 (Pa. Super. 1991),
affirmed, 607 A.2d 730 (Pa. 1992) (footnotes and case citations omitted;
emphases added).6
Here, Appellant raises the same constitutional challenge as that raised
by McFarlin. (See Appellant’s Brief, at 26-28). Therefore, for the reasons
stated in McFarlin, we conclude that Appellant’s fifth issue does not merit
relief.
Judgment of sentence affirmed.
Judge Ott joins the Memorandum.
Judge Bowes files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2016
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6
Pennsylvania Rule of Appellate Procedure 2119(f) regulates the procedure
for appeals of the discretionary aspects of sentence pursuant to 42 Pa.C.S.A.
§ 9781(b). See Pa.R.A.P. 2119(f). Therefore, we conclude that it also is
constitutional for the same reasons enunciated in McFarlin.
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