J-S78016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 AKEEM JOHNSON                            :
                                          :
                    Appellant             :   No. 2880 EDA 2016

           Appeal from the Judgment of Sentence August 4, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): MC-51-CR-0013675-2015


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED MARCH 25, 2019

      Akeem Johnson was found in violation of probation and sentenced to

prison. He challenges discretionary aspects of his revocation sentence. We

affirm.

      Johnson was charged with numerous crimes in relation to his sexual

contact with his then-four-year-old cousin. Johnson entered a negotiated

guilty plea in October 2015 to one count of corruption of minors. Pursuant to

the plea agreement, the court sentenced him to five years of probation and

placed him under the supervision of the substance abuse unit. The conditions

of his probation included his undergoing substance abuse and psychosexual

evaluations, and complying with any treatment recommendations resulting

from those evaluations.

      Johnson was then found in violation of his probation three times. The

first time, in January 2016, the court found him in violation of the conditions

____________________________________
* Former Justice specially assigned to the Superior Court.
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of his probation and re-imposed the five-year probation sentence. However,

the court directed that he be placed under the supervision of the sex offender

unit, required him to meet all conditions of a sex offender treatment program,

and ordered him to have “no unsupervised contact with minors.” Order,

Violation of Probation, 1/27/16.

       The second time, Johnson’s lawyer said that the probation department

had learned that Johnson was living with his mother, who would baby-sit

children in her home. Counsel asserted that since being detained for the

violation, Johnson had found another place to live. The court again found him

in technical violation, revoked his probation, and sentenced him to a new five-

year term of probation, with the same conditions as before. Order, Violation

of Probation, 2/29/16.

       The third time, which is the source of this appeal, Johnson’s probation

officer testified1 that when he first met with Johnson, they went over the sex

offender unit rules, which prohibited Johnson from participating in social

media. The probation officer said Johnson admitted he had a Facebook

account, which the probation officer then deleted, and Johnson claimed he had

no other social media accounts. The probation officer then searched Johnson’s

cell phone and found text messages in which Johnson bragged that he had

created social media accounts under false names so that the probation officer

____________________________________________


1 The Notes of Testimony from the August 4, 2016 hearing are incorrectly
captioned as being from August 4, 2015. The error in the year is evident from
the judge’s on-the-record references to events in January and February 2016.

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would not find them. The officer nonetheless found and deleted Johnson’s

WhatsApp and Snapchat accounts. The officer also discovered numerous nude

photos of Johnson’s sister, including one of her engaged in a sex act. He also

found numerous pictures of children, including pictures of Johnson with

children, photos of a nude female child, and an image of an infant in which

her genitals were visible.

      The probation officer said that Johnson failed to attend a sex offender

treatment session and failed to appear at a scheduled office visit with the

probation officer. Johnson also violated program rules by leaving the

jurisdiction without approval on two occasions, once to get a haircut in Darby,

Delaware County, and once to go to Ventnor, NJ.

      The probation officer searched Johnson’s phone again in July 2016, and

found another image of Johnson’s sister in the nude that Johnson had

downloaded from Instagram and sent by text message to another person. The

officer then found numerous other pictures of minor children and photos of

naked women. He also discovered that Johnson had opened a Vimeo account,

as well as text messages between Johnson and his sister evidencing that

Johnson had been accessing Instagram. The probation officer said that later

searches of Johnson’s cell phone turned up a screen shot of an Instagram

account, which demonstrated that Johnson had accessed that application. He

also found sexualized images of women and children. The officer additionally

testified that Johnson had tested positive for marijuana and never provided

verification that he had enrolled in drug treatment.

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      Johnson presented his sister’s testimony. She confirmed that the nude

photos were of her and said that the children in the photos included her

daughter and her young cousin. However, she claimed that the phone had

previously been hers and she had “downloaded everything on there.” N.T.,

8/4/16, at 18.

      The court revoked Johnson’s probation and sentenced him to two to four

years in prison followed by one year of probation. The court pointed out that

this was Johnson’s third violation, and characterized Johnson’s behavior as

“escalating.” Id. at 23. The court stated that whether Johnson or his sister

put the photographs on the phone, at the very least Johnson knew they were

on the phone and left them there. The court also pointed out that Johnson had

gone out of state without permission, failed a drug test, never attended drug

treatment, and lied to the probation officer. Acknowledging that the violation

was technical, the judge said he was imposing the two-to-four-year prison

sentence, followed by one year of probation, “because you have not abided

by my probation.” Id. at 27. Defense counsel voiced a request for a lesser,

in-county sentence, but the judge rejected it: “No. He is getting what I just

gave him, and he will be in sex offender treatment in a state correctional

institution. That’s what I want him to have. He is dangerous. He does not fulfill

the promise of wanting rehabilitation. He just keeps breaking the rules.” Id.

at 28-29.

      Johnson moved for reconsideration, arguing the sentence exceeded

what was necessary to protect the public, foster his rehabilitation, or vindicate

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the court’s authority. The court denied the motion and Johnson filed this

appeal. The court did not issue a Pa.R.A.P. 1925(b) order. Johnson’s brief

presents a single question:

         Did not the trial court err and abuse its discretion by
         imposing a sentence which is manifestly excessive, and
         which violates Section 9771 and 9721 of the Sentencing
         Code as a sentence of total confinement for technical
         violations of probation, because it considered improper
         sentencing factors, is unreasonable and not necessary to
         vindicate the authority of the court, and failed to consider
         the least restrictive alternatives, the needs of the Appellant
         and the possible harm to the community?

Johnson’s Br. at 3.

      Johnson contends that in fashioning his sentence, the lower court relied

on his accessing social media, in violation of the First Amendment, and based

the sentence on a recitation of underlying facts not of record. He also makes

a three-pronged attack on the court’s imposition of a prison sentence. He

argues that because the court found him in mere “technical” violation of

probation, and he was not convicted of a new crime, there is no evidence that

he is likely to commit another crime if the court did not imprison him. He

further argues that total confinement was unwarranted to vindicate the court’s

authority.

      Johnson acknowledges that he is challenging discretionary aspects of his

sentence. See id. at 2. Our standard of review is therefore abuse of discretion,

and our scope of review is plenary. Commonwealth v. Walls, 926 A.2d 957,

964 (Pa. 2007).


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       There is no right in Pennsylvania to appellate review of discretionary

aspects of a sentence. Rather, to obtain such review, an appellant must

include in its appellate brief a statement demonstrating a substantial question

that the sentence was inappropriate under the Sentencing Code. See 42

Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). We thus ask four questions before

considering the merits of such a challenge: 1. Was the appeal timely? 2. Did

the appellant preserve the issue below? 3. Does the appellant’s brief include

a Pa.R.A.P. 2119(f) statement petitioning for allowance of appeal? 4. Did the

appellant demonstrate a substantial question? See Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa.Super. 2010).

       Here, the appeal was timely,2 and Johnson’s brief includes a Rule

2119(f) statement. However, he did not preserve all of his issues below.

Although his motion for reconsideration argued that the social media ban

would make his life “difficult,” he did not raise his First Amendment argument

in the lower court. See Johnson’s Br., Ex. A, at 2. Nor did his motion contend

that the court relied on facts outside the record in imposing sentence, and he

did not raise any objection on either of these bases during the violation

hearing. Those issues are therefore waived. See Pa.R.A.P. 302(a). His

remaining issues – his arguments that the evidence did not demonstrate that

he was likely to reoffend if the court did not imprison him, and that a prison
____________________________________________


2The 30th day after the court entered the sentencing order was Saturday,
September 3, 2016, and the following Monday, September 5, 2016, was Labor
Day. His September 6, 2016 appeal was thus timely. See Pa.R.C.P. 106(b);
D.K. v. S.P.K., 102 A.3d 467, 470 n.1 (Pa.Super. 2014).

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sentence was not necessary to vindicate the court’s authority – are properly

before us and present a substantial question. See Commonwealth v.

Ferguson, 893 A.2d 735, 737 (Pa.Super. 2006). However, they do not merit

relief.

          A court revoking probation may not impose a sentence of total

confinement unless it finds at least one of the following: (1) the defendant has

been convicted of another crime; (2) the defendant’s conduct indicates that it

is likely the defendant will commit another crime if not imprisoned; or (3) such

a sentence is essential to vindicate the authority of the court. 42 Pa.C.S.A. §

9771(c).

          We perceive no abuse of discretion here. At the very least, Johnson’s

commission of what the lower court termed “serial and serious violations”

justified the imposition of a prison sentence, as necessary to vindicate the

court’s authority. See Trial Court Opinion, filed Oct. 13, 2017, at 6. The court

has repeatedly found him in violation of probation, and this time, it cited at

least five different ways in which Johnson violated the terms of his probation.

Id. We also see no abuse of discretion in the lower court’s conclusion that

Johnson’s behavior was “escalating,” such that he was likely to reoffend if the

court did not imprison him. The lower court did not abuse its discretion in

sentencing Johnson to prison.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/19




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