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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
FRANK JOHNSON,                             :          No. 1932 EDA 2019
                                           :
                          Appellant        :


         Appeal from the Judgment of Sentence Entered May 11, 2017,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0008752-2016


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 24, 2020

        Frank Johnson appeals from the May 11, 2017 judgment of sentence

entered by the Court of Common Pleas of Philadelphia County following his

non-jury     conviction of aggravated      assault, simple    assault, recklessly

endangering another person (“REAP”), and possessing instruments of crime.1

After careful review, we affirm.

        The trial court provided the following factual and procedural history:

              On June 9, 2016, sometime after 9:00 p.m.,
              Philadelphia Police Officers [Brian] Egrie and Durkin[2]
              were on routine patrol driving up 7th Street in the
              direction of Cantrell Street when they observed
              appellant       and      another       man       named
              Stanley Sabalauskas, the complainant herein, fighting
              in the street. The complainant testified that the affray

1   18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, and 907(a), respectively.

2   Officer Durkin’s first name does not appear in the record.
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            started when appellant hit him with a cane as he was
            speaking to another man. The complainant then tried
            to grab the cane from appellant but he pushed the
            complainant to the ground, got on top of him, and
            then began striking him several times with the metal
            cane.

            The officers ordered appellant to stop but he ignored
            their orders and even continued to strike the
            complainant with the cane even after one of the
            officers drew his service revolver. He finally stopped
            when the officers pulled him off the complainant. The
            complainant suffered injuries to his face and head.

Trial court opinion, 7/17/19 at 2.

            [Appellant] was convicted on March 9, 2017, following
            a waiver trial before [the trial c]ourt[] of aggravated
            assault, graded as a felony of the second degree,
            simple assault, [REAP], and possessing instruments of
            crime, generally.      Sentencing occurred, as noted
            above, on May 11, 2017, on which date [the trial
            c]ourt imposed an aggregate sentence of four to eight
            years’ incarceration followed by a term of probation of
            five years on appellant. Appellant thereafter filed a
            post-sentence motion which was denied by operation
            of law on September 14, 2017. Appellant did not
            thereafter file a notice of appeal.

            On December 1, 2017, appellant filed a pro se
            petition pursuant to the Post-Conviction [R]elief Act
            (hereinafter PCRA). 42 Pa.C.S.[A.] §§ 9541 et seq.
            Counsel was appointed to represent him and after
            counsel filed an amended petition, [the PCRA c]ourt,
            on June 25, 2019, issued an order granting appellant
            the right to file a notice of appeal nunc pro tunc from
            the judgment of sentence. Appellant filed said notice
            and subsequent thereto, pursuant to an order issued
            by [the trial c]ourt, a Pa.R.A.P. 1925(b) Statement of
            [Errors] Complained of on [A]ppeal.

Id. at 1-2.    The trial court subsequently filed an opinion pursuant to

Pa.R.A.P. 1925(a).


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      Appellant raises the following issue for our review:

            Whether [appellant] was denied fairness in the
            sentencing     hearing   where,    as    here,    the
            [C]ommonwealth interjected inflammatory and
            prejudicial evidence, without proof, that [appellant]
            had intimidated the complainant/witness during the
            pendency of this matter and that witnesses testified
            to seeing a trail of blood on the walls, street, and
            dumpsters[?]

Appellant’s brief at v (full capitalization omitted).

      Although appellant frames his issue as one based on prosecutorial

misconduct, he challenges the discretionary aspects of his sentence. Indeed,

appellant complains that at his sentencing hearing, the Commonwealth

introduced evidence not of the record in order to “prejudice the [trial] court

against [appellant] and to obtain a lengthy sentence in excess of that

requested by appellant.” (Appellant’s brief at 6.)

            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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015), quoting Commonwealth v. Hoch, 936

A.2d 515, 517-518 (Pa.Super. 2007) (citation omitted).

            Challenges to the discretionary aspects of sentence
            are not appealable as of right. Commonwealth v.


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            Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
            Rather, an appellant challenging the sentencing
            court’s discretion must invoke this Court’s jurisdiction
            by (1) filing a timely notice of appeal; (2) properly
            preserving the issue at sentencing or in a motion to
            reconsider and modify the sentence; (3) complying
            with Pa.R.A.P. 2119(f), which requires a separate
            section of the brief setting forth “a concise statement
            of the reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of a sentence[;]”
            and (4) presenting a substantial question that the
            sentence appealed from is not appropriate under the
            Sentencing Code. Id. (citation omitted).

Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa.Super. 2019).

      Here, appellant filed a timely notice of appeal and filed a post-sentence

motion in which he alleged that the trial court imposed an excessive sentence.

(See appellant’s post-sentence motion, 5/17/17 at unnumbered page 2.)

Appellant failed to include a Rule 2119(f) statement in his brief; however,

because the Commonwealth did not object to this omission, we may

nonetheless review appellant’s claim. Commonwealth v. Gould, 912 A.2d

869, 872 (Pa.Super. 2006), citing Commonwealth v. Bonds, 890 A.2d 414,

418 (Pa.Super. 2005), appeal denied, 906 A.2d 537 (Pa. 2006).

      We must now determine whether appellant has raised a substantial

question.

            “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:

                  A substantial question exists only when
                  the appellant advances a colorable
                  argument that the sentencing judge’s


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                  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).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super. 2015). This court

has concluded that a sentence which is the product of prejudice, bias, or ill

will constitutes a substantial question because such a sentence is “necessarily

contrary to the fundamental norms of sentencing.”         Commonwealth v.

Derry, 150 A.3d 987, 995 (Pa.Super. 2016).

      Here, appellant alleges that the prosecutor made statements during the

sentencing hearing “to prejudice the [trial] court against [appellant] and to

obtain a lengthy sentence in excess of that requested by [appellant].”3

(Appellants brief at 6.) Nowhere in appellant’s five-sentence argument does

he allege—let alone demonstrate—that the trial court exercised its sentencing




3 Appellant requested a term of incarceration of 11½ to 23 months. (Notes of
testimony, 5/11/17 at 5.) The standard range in the sentencing guidelines
for aggravated assault with an offense gravity score of 8 and appellant’s status
as a repeat felony offender is 40-52 months’ imprisonment. 204 Pa.Code
§ 303.16 (repealed January 1, 2018).


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discretion for reasons of prejudice, bias, or ill will. Consequently, appellant

fails to raise a substantial question.4

      Judgment of sentence affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary



Date: 3/24/2020




4  Notwithstanding this failure, we note that the trial court stated at the
sentencing hearing that it did not factor in the statements at issue from the
Commonwealth’s argument when crafting appellant’s sentence; rather, the
trial court placed emphasis on photographic evidence that was admitted at
trial. (Notes of testimony, 5/11/17 at 10; trial court opinion, 7/17/19 at 3.)
Moreover, the record reflects that the trial court imposed a sentence within
the standard guideline range.       See 204 Pa.Code § 303.16 (repealed
January 1, 2018).


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