J-S51003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH HARTNETT

                            Appellant                No. 2440 EDA 2015


           Appeal from the Judgment of Sentence November 22, 2011
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012575-2010


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED JUNE 22, 2016

        Appellant, Kenneth Hartnett, appeals nunc pro tunc from the judgment

of sentence imposed in the Philadelphia County Court of Common Pleas,

following his guilty plea to aggravated assault, rape, and involuntary deviate

sexual intercourse (“IDSI”).1 We affirm.

        The trial court set forth the relevant facts and procedural history as

follows:

           On July 17, 2010, at about 6:00 A.M., 28-year-old [Victim]
           was walking alone in the Kensington neighborhood of
           Philadelphia. She was approached by [Appellant], whom
           she had never met before, and after a conversation,
           [Appellant] led her through a hole in a fence to a secluded
           area.
____________________________________________


1
    18 Pa.C.S.A. §§ 2702, 3121, and 3123, respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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        As soon as [Victim] emerged from the hole in the fence,
        [Appellant] struck her on the head, rendering [Victim]
        unconscious with one blow.           While [Victim] was
        unconscious, [Appellant] raped her.       At some point,
        [Victim] began to regain consciousness; she had time to
        notice that her pants were off and there was blood all over
        her face, but as soon a[s] [Appellant] noticed her waking
        up, he smashed her head onto the pavement. [Victim]
        begged for mercy and told [Appellant] that she had a
        child; [Appellant] responded that nobody would miss her if
        she died.

        At some point during this [incident], a passerby, who for
        some reason had also crawled through the hole in the
        fence, saw [Appellant] attacking [Victim] and began to
        scream at him. Covered in [Victim’s] blood, [Appellant]
        fled. [Victim], also covered in blood, managed to find a
        bicyclist, who chased [Appellant] down and contain[ed]
        him until police arrived.

        [Appellant] was arrested that day, and forensic analysis
        confirmed that the semen found in [Victim’s] vagina
        belonged to [Appellant]. [Victim] was also able to identify
        [Appellant] during a line-up on September 13, 2010.

        As a result of [Appellant] smashing her head into the
        concrete ground, [Victim’s] skull was compressed into her
        brain. [Victim’s] head is permanently misshapen. She is
        unable to turn her head in a normal fashion and [s]he
        suffers from severe memory loss, and as a result cannot
        be left alone or allowed to take care of her young
        daughter; if she even tries to prepare her own food, she
        will forget there is food on the stove or in the microwave
        and leave it there to burn. [Victim] also suffers from
        nightmares relating to the attack.

        [Victim’s] mother and other family members must now
        care both for [Victim’s] six-year-old daughter and [Victim]
        herself. [Victim] cannot drive, have a job, or even help
        her daughter with first-grade-level homework.

(Trial Court Opinion, filed December 18, 2012, at 1-2).


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        On August 22, 2011, Appellant entered an open guilty plea to

aggravated assault, rape, and IDSI.          On November 22, 2011, the court

sentenced Appellant to concurrent terms of 6½─13 years’ incarceration for

rape and IDSI. Additionally, the court imposed a consecutive term of 10─20

years’ incarceration for aggravated assault. Appellant’s aggregate sentence

was 16½─33 years’ incarceration. On December 2, 2011, Appellant timely

filed a post-sentence motion, which the trial court denied on December 6,

2011.     On December 22, 2011, Appellant timely filed a notice of appeal.

This Court dismissed the appeal, for failure to file a brief, on March 6, 2013.

        On June 6, 2013, Appellant timely filed a PCRA petition.       The PCRA

court granted relief on August 7, 2015, by reinstating Appellant’s appeal

rights nunc pro tunc. On August 13, 2015, Appellant timely filed a notice of

appeal nunc pro tunc. The court ordered Appellant on December 23, 2015,

to file a Rule 1925(b) statement, and Appellant timely complied.

        Appellant raises one issue on appeal:

          WHETHER APPELLANT’S SENTENCE WAS UNDULY HARSH
          AND UNREASONABLE.

(Appellant’s Brief at 8).

        Appellant argues the court imposed an unduly harsh and unreasonable

sentence because the court gave short shrift to mitigating factors presented

in his case.    Specifically, Appellant contends the court failed to consider

Appellant’s    childhood    circumstances,    criminal   background,   character,

remorse, and general rehabilitative needs. Appellant asserts he should have

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received some mitigation of his sentence, instead of an aggravation of his

sentence, because his prior offense score was zero. Additionally, Appellant

argues a post-sentence hearing was necessary to present additional facts

pertaining to Appellant’s harsh childhood circumstances by way of character

testimony. Appellant concludes the sentence was manifestly excessive. As

presented, Appellant challenges the discretionary aspects of his sentence.

See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating

claim that sentence is manifestly excessive challenges discretionary aspects

of   sentencing);   Commonwealth       v.   Cruz-Centeno,    668   A.2d     536

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)

(stating claim that sentencing court failed to consider or did not adequately

consider certain factors challenges discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).      Prior to reaching the merits of a discretionary

sentencing issue:

     [W]e conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

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Objections to the discretionary aspects of sentence are generally waived if

they are not raised at the sentencing hearing or in a motion to modify the

sentence imposed at that hearing.     Commonwealth v. Mann, 820 A.2d

788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599

(2003).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness    of   the    sentence     under     the    Sentencing     Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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.”      Sierra,     supra     at    912-13      (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

      “Generally, Pennsylvania law ‘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. Any challenge


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to the exercise of this discretion ordinarily does not raise a substantial

question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.

2006)). “An allegation that a sentencing court failed to consider or did not

adequately consider certain factors does not raise a substantial question that

the sentence was inappropriate.”         Cruz-Centeno, supra at 545.         Cf.

Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.Super. 2003) (en banc)

(stating claim that court imposed sentence in aggravated range without

considering mitigating circumstances constitutes substantial question as to

discretionary aspects of sentencing).

      Our standard of review of a challenge to the discretionary aspects of

sentencing is as follows:

         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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)). The trial court has

discretion in determining whether a hearing is required on the post-sentence

motions. Pa.R.Crim.P. 720(B)(2)(b).


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        In the instant case, Appellant properly preserved a challenge to the

discretionary aspects of sentencing in his post-sentence motion, his Rule

1925(b) statement, and his Rule 2119(f) statement. To the extent Appellant

poses     a generic claim         that the     court failed    to   consider   mitigating

circumstances, the claim does not raise a substantial question as to the

discretionary     aspects    of    sentencing.       See      Cruz-Centeno,       supra.

Nevertheless, where Appellant claims the court sentenced him in the

aggravated range without considering mitigating circumstances, Appellant

appears to raise a substantial question as to the discretionary aspects of his

sentence. See Felmlee, supra.

        As an initial matter, the minimum sentences imposed for IDSI and

rape fell in the aggravated range of the sentencing guidelines; the minimum

sentence for aggravated assault actually exceeded the aggravated range of

the sentencing guidelines.         Nevertheless, none of the sentences breached

the respective statutory maximums for the offenses at issue.2

        In Appellant’s post sentence motion he requested modification of his

overall    sentence,    based      on   his    remorse   and    his   harsh    childhood

circumstances.      On appeal, Appellant adds he should have received some

mitigation of his sentences, instead of an aggravation of his sentences,

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2
  Each of the three offenses was graded as a first degree felony, with a
statutory maximum sentence of 20 years. See generally 18 Pa.C.S.A. §
1103(1).



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because his prior offense score was zero. Appellant’s post-sentence motion,

however, failed to raise any issue implicating his prior record score, so that

aspect of his claim is waived.

      Moreover, at sentencing, the court announced numerous factors to

support a departure from the guidelines, including the exceptionally cruel

nature of the crimes and the extensive and permanent brain damage to

Victim, which has caused her severe memory loss and left her unable to care

for her daughter or maintain employment.      The court also considered the

harsh circumstances of Appellant’s childhood and his expression of remorse.

The court stated the imposition of the statutory maximum sentence for

aggravated assault was reasonable and necessary, given the nature and

circumstances of the crime. Appellant’s post-sentence motion failed to raise

any issues, which went unaddressed at the sentencing hearing. Further, the

court had the benefit of a PSI report and mental health evaluation, which

contained Appellant’s childhood circumstances. Thus, we can presume the

court considered these as relevant mitigating sentencing factors.        See

Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating where

sentencing court had benefit of PSI, law assumes court was aware of and

weighed relevant information regarding mitigating factors).     Also, the PSI

report included information Appellant sought to introduce through additional

character testimony at a subsequent hearing; therefore, a hearing on

Appellant’s post-sentence motion was unnecessary.      Thus, Appellant is not


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entitled to relief as to the discretionary aspects of sentencing. Accordingly,

we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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