J-S02045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JESSE MICHAEL WATSON,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 941 MDA 2019

Appeal from the Judgment of Sentence Entered May 13, 2019

in the Court of Common Pleas of Bradford County 

Criminal Division at No(s): CP-08-CR-0000291-2018

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 27, 2020

Jesse Michael Watson (“Watson”) appeals from the judgment of 

sentence imposed following his entry of a nolo contendere plea to one count 

of tampering with evidence.1 We affirm.

Watson was arrested on March 31, 2018, following an incident at his 

home in Sayre, Pennsylvania. A Sayre police officer was in the process of 

issuing Watson a citation related to Watson’s unleashed dog. During the 

interaction, the officer observed Watson pick up a glass pipe that was sitting 

at his feet and put it into his sweatshirt pocket. The officer instructed Watson 

to remove the pipe from his pocket, and Watson refused. A scuffle ensued, 

and Watson threw the pipe inside the house before closing the door behind 

him. Watson was eventually arrested, his dogs were contained, and he was 

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1 See 18 Pa.C.S.A. § 4910(1).
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charged with tampering, resisting arrest, possession of marijuana, escape, 

and possession of drug paraphernalia following the incident.2

On June 1, 2018, Watson filed an omnibus pre-trial Motion requesting, 

in part, to suppress the physical evidence seized during the incident. On 

September 11, 2018, the trial court held a pretrial hearing, where Watson 

admitted to possessing the paraphernalia. Watson further admitted to 

throwing the pipe into the house, and to shutting the door behind him. N.T., 

9/11/18, at 4-7. The trial court denied the Motion on November 13, 2018.

On March 14, 2019, Watson entered a plea of nolo contendere, pursuant 

to a plea agreement. The trial court sentenced him to time served to 23 

months, 29 days in prison, and he was immediately paroled.3 Watson filed a 

timely post-sentence Motion to modify his sentence, arguing that his sentence 

was excessive given his plea. The trial court denied his Motion, and this timely 

appeal followed.

Watson raises, as his sole issue, “[whether] the sentence imposed by 

the [trial] court was excessive[.]” Brief for Appellant at 3. Watson challenges 

the discretionary aspects of his sentence. Watson claims that the sentence 

he received was outside the aggravated range of the sentencing guidelines. 

Id. at 9. He argues that the 265 days in prison served prior to his sentencing

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2 See 18 Pa.C.S.A. § 4910(1); 5104; 5121(a); 35 P.S. §§ 780-113(a)(31), 

(32).

3 Watson’s bail was previously revoked on July 2, 2018, following an unrelated 

arrest in New York. On October 30, 2018, Watson filed a Motion to reinstate 

his bail for the instant offenses, which the trial court denied.
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far exceeds the aggravated range, and the trial court failed to consider 

Watson’s prior record score, background, and time served in calculating its 

maximum sentence. Id. at 11-12.

We approach Watson’s argument mindful that the right to appeal a 

challenge to the discretionary aspects of a sentence is not absolute. 

Commonwealth v. Williams, 787 A.2d 1085, 1087 (Pa. Super. 2001).

[T]o reach the merits of a discretionary sentencing issue, we must 

determine: (1) whether the appellant has filed a timely notice of 

appeal; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence; (3) 

whether the appellant’s brief has a fatal defect, [s]ee Pa.R.A.P. 

2119(f); and (4) whether there is a substantial question that the 

sentence appealed from is inappropriate under the Sentencing 

Code, 42 Pa.C.S.A. § 9781(b).

Id. at 1087-88 (citation omitted).

Watson’s brief substantially complies with the first three requirements.4 

Therefore, we will determine whether there is a substantial question requiring 

us to review the discretionary aspects of his sentence.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526, 

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4 Watson’s brief does not include a separate concise statement pursuant to 

Pa.R.A.P. 2119(f). Instead, Watson incorporates his concise statement into

the argument section, and attaches the sentencing guideline forms “to satisfy 

[the Rule 2119(f)] requirement.” Brief for Appellant at 9. Because the 

Commonwealth has not objected to the Rule 2119(f) statement, we will 

proceed to determine whether there exists a substantial question. See 

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (explaining 

that this Court may ignore the omission of a Rule 2119(f) statement, and 

proceed to the substantial question analysis, when the appellee does not 

object to the omission).
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533 (Pa. Super. 2011). “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.” Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa. Super. 

2017). Merely claiming that a sentence is excessive or unreasonable does not 

raise a substantial question. Commonwealth v. Hornaman, 920 A.2d 1282, 

1284 (Pa. Super. 2007).

Watson’s claim fails to raise a substantial question. Here, as Watson 

recognizes, the negotiated plea agreement provided for a minimum sentence 

of time served, which the trial court imposed, while the maximum sentence 

was left to the trial court’s discretion. See Brief for Appellant at 11-12; see 

also N.T., 5/13/19, at 3 (wherein Watson’s counsel states that the plea 

agreement calls for a minimum of time served, and requests for the trial court 

to follow the plea agreement and impose a short tail). As a result, Watson 

has not raised a substantial question. See Commonwealth v. Dalberto, 

648 A.2d 16, 21 (Pa. Super. 1994) (holding that an appellant has no authority 

to challenge the discretionary aspects of an imposed sentence when a plea 

agreement includes a negotiated sentence accepted and imposed by the 

sentencing court); Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super. 

2010) (stating that “a nolo contendere plea has the same effect as a guilty 

plea for purposes of sentencing and is considered a conviction[.]”).
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Additionally, Watson’s maximum sentence of 23 months, 29 days falls 

within the statutory maximum. See 18 Pa.C.S.A. § 4910 (1) (stating that 

tampering with evidence is a misdemeanor of the second degree); 18 

Pa.C.S.A. § 106(b)(7) (stating that the maximum sentence for a misdemeanor 

of the second degree is two years); Commonwealth v. Kimbrough, 872 

A.2d 1244, 1263 (Pa. Super. 2005) (explaining that “[w]hen the sentence is 

within the range prescribed by statute, a challenge to the maximum sentence 

imposed does not set forth a substantial question as to the appropriateness of 

the sentence under the guidelines.”). Accordingly, Watson has not raised a 

substantial question, and we cannot grant him relief on his claim.5

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/27/2020

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5 Furthermore, the trial court had the benefit of a pre-sentence investigation 

report, heard Watson’s testimony during the omnibus pre-trial hearing, and 

stated its reasons for imposing its sentence on the record. See N.T., 5/13/19, 

at 3-5, 7-8; Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) 

(stating that, when the sentencing court had the benefit of a pre-sentence 

investigation report, “[this Court] assume[s] the sentencing court was aware 

of the relevant information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors.” (internal 

quotations omitted)).