J-A21031-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TRAVIS JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1384 EDA 2017

Appeal from the Judgment of Sentence Entered February 27, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-0014203-2014

BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 13, 2018

Travis Johnson appeals from the judgment of sentence entered on 

February 27, 2017. He contends that the trial court gave an inadequate 

instruction to cure comments made in the Commonwealth’s closing argument

and challenges the discretionary aspects of his sentence. We affirm. 

The Commonwealth charged Johnson with aggravated assault, assault 

of law enforcement by firearm, carrying a firearm on public streets in

Philadelphia, possession of firearm prohibited, and carrying a firearm without 

a license.1 The facts giving rise to these charges are as follows. 

On August 21, 2014, Johnson was riding his bicycle past two police 

vehicles occupied by Officer Matthew Smyth and Officer James Craig. Notes 

of Testimony (N.T.), 6/1/16, at 43-44. Officer Brian Nolan and his partner 

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1 18 Pa.C.S.A. §§ 2702(a)(1), 2702.1(a), 6108, 6105(a)(1), 6106(a)(1), 

respectively. 
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Officer Anthony Santulli were in another police vehicle nearby. Id. at 41.

Officer Nolan noticed that as Johnson was passing their vehicle he was holding 

his waistband area. Id. at 46-48. Officer Nolan believed that Johnson was 

holding the butt of a gun. Id. at 52-53. Officer Nolan exited his vehicle and 

asked Johnson to stop and he complied. Id. at 50-51. Johnson then fled on 

his bicycle, while pulling at what Officer Nolan believed to be the butt of a gun. 

Id. at 52-53. While Johnson pedaled away, the chain of his bicycle broke and 

he continued to flee on foot. Id. at 53-54. Officer Nolan chased him and 

eventually they ended up in a field. While in the field Johnson fired what Officer 

Nolan described as a silver and black handgun once at Officer Nolan. Id. at 

58, 62-63. The sound of the firearm discharging caused Officer Nolan’s 

eardrum to pop but he was not otherwise injured. Id. at 64, 68. Officer Nolan

returned fire, firing twice at Johnson, who then ran again and was eventually 

arrested by fellow officers. Id. at 66-67, 72. Officers recovered a “silver with 

black grip” handgun in a field that Johnson was observed running through.

N.T., 6/7/16, at 97. There were no civilians on the street or in the area where

Johnson ran or where he was arrested. N.T., 6/1/16, at 90-91. 

During closing argument, the prosecutor argued the following: “If you 

say that Travis Johnson is not guilty, you look [Officer] Nolan in the eyes, and 

you’re telling him he’s a liar.” N.T., Trial, 6/8/2016, at 86. The prosecutor also 

stated “[Officer Nolan] spent every day protecting that community. It’s time 

to protect him.” Id. at 97. Defense counsel objected to both statements and 

the court sustained both objections. Id. at 86, 97.
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Prior to instructing the jury, the court asked defense counsel if there 

was anything she wanted to say regarding the sustained objections by the 

court. Id. at 98. Counsel suggested that the court instruct the jury “[t]hat 

they answer to nobody for their verdict . . . It’s their job to judge the facts. 

They’re not here to protect anybody. They’re here to judge the facts.” Id. at 

99. The trial court stated that it would instruct the jury that “[y]our job is to 

follow the law as I instruct you, along with my other instructions, in evaluating 

the evidence to determine the facts in this case.” Id. at 104. Both the 

Commonwealth and defense agreed to the curative instruction. Id. The court 

ultimately gave the following curative instruction:

You should not regard as true any evidence which you find to be 

incredible, even if it is uncontradicted. Your determination of the 

facts should not be based on empathy for or prejudice against the 

defendant or the crime, nor on which attorney made the better 

speech, nor on which attorney you like better. Your job is follow 

the law as I instruct you, along with the other instructions in 

evaluating the evidence to determine the facts in this case.

Id. at 107-108.

The jury found Johnson guilty of the weapons offenses only and the trial 

court sentenced him to nine to 24 years’ incarceration. Johnson filed a postsentence motion which the trial court denied. This timely appeal followed. 

On appeal, Johnson asks us to review the following issues:

I. Did not the trial court err and abuse its discretion by issuing 

an inadequate curative instruction, after the prosecutor 

made improper remarks during the Commonwealth’s closing 

argument – telling jurors that if they found [Johnson] not 

guilty they would be telling the officer “he’s a liar,” and that 

jurors had a duty to “protect” the officer, presumably from 
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[Johnson] – statements that attempted to destroy the 

objectivity of the jury and deprived [Johnson] of his 

constitutional rights to due process, a fair and impartial jury, 

and a fair trial?

II. Did not the sentencing court abuse its discretion by 

imposing a manifestly excessive and unreasonable sentence 

that did not address the particular offense and the 

rehabilitative needs of [Johnson], where the court relied on 

impermissible sentencing factors, including past arrests, in 

violation of the Sentencing Code?

Johnson’s Br. at 4. 

First, Johnson challenges the adequacy of the trial court’s curative 

instruction regarding the prosecutor’s closing argument. However, since 

Johnson “did not object to the instruction, any claim in relation to its adequacy 

is waived.” Commonwealth v. Page, 965 A.2d 1212, 1222 (Pa.Super. 2009). 

In any event, even if Johnson had properly preserved this claim, we 

would reject it as meritless. The trial court’s instruction adequately informed 

the members of the jury that it was their duty to follow the law and not make 

a decision based “on empathy for or prejudice against the defendant or the 

crime.” N.T., 6/8/16, at 108. This was sufficient to counteract the prosecutor’s 

comments that they protect the community and suggestions that if they found 

Johnson not guilty, it meant that Officer Nolan was a liar. We presume the 

jury followed these cautionary instructions and as such conclude no abuse of 

discretion by the trial court. See Commonwealth v. Jones, 668 A.2d 491, 

504 (Pa. 1995) (holding cautionary instruction given was adequate since jury 

is presumed to have followed instruction and defendant expressed satisfaction 

of instruction by failing to object to the instruction).
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Next, Johnson challenges the discretionary aspects of his sentence. 

Before we address the merits of this claim, we must engage in a four-factor

analysis to determine whether: (1) the appeal is timely; (2) the issues 

presented were properly preserved; (3) the brief satisfies Pa.R.A.P. 2119(f);2

and (4) a substantial question is presented. See Commonwealth v. 

Radecki, 180 A.3d 441, 467 (Pa.Super. 2018) (citing Commonwealth v. 

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

Here, Johnson’s appeal is timely, but two of his claims were not 

preserved. Johnson maintains that the “trial court improperly considered the 

facts of Mr. Johnson’s arrests” and his sentence is excessive “because of the 

consecutive nature of the sentence.” Johnson’s Br. at 13. However, he did not 

raise these issues with the trial court and therefore they are waived. See 

Pa.R.A.P. 302(a) (providing issues not raised before trial court are waived on 

appeal). Even if these issues were properly preserved for appellate review, 

they are meritless. 

First, a court may consider arrests when imposing sentence “as long as 

the court realizes that the defendant had not been convicted on those prior 

charges.” Commonwealth v. Bryant, 458 A.2d 1010, 1012 (quoting

Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa.Super. 1981)). Here, the 

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2 “An appellant who challenges the discretionary aspects of a sentence in a 

criminal matter shall set forth in a separate section of the brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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trial court recognized that Johnson had both arrests and convictions but it did 

not give the same weight to arrests as it did for convictions. See N.T., 

Sentencing, 2/27/17, at 38.

Second, it is within the court’s discretion to impose a consecutive

sentence. While Johnson maintains that by imposing consecutive sentences 

the trial court “double[-]counted Mr. Johnson’s prior record and also the 

offense gravity,” we disagree. Johnson’s Br. at 29. It is true that courts are 

not permitted to double-count factors that have been included in the 

Sentencing Guidelines. See Commonwealth v. Goggins, 748 A.2d 721, 732 

(Pa.Super. 2000) (en banc). However, they are permitted to “refer to the 

defendant’s prior criminal record, his age, personal characteristics and his 

potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1, 10 

(Pa.Super. 2002). The trial court sentenced Johnson on his “very unfortunate 

history,” as well as the Pre Sentenced Investigation (“PSI”) report, the 

memoranda from both counsel, and the facts of the case, all of which are 

permissible factors. The claim is meritless. 

*Johnson’s last claim is that that the “trial court imposed an excessive 

sentence that failed to consider Mr. Johnson’s rehabilitative needs.” This claim

is preserved as it was raised in the post-sentence motion, Johnson’s brief 

satisfies Pa.R.A.P. 2119(f), but the claim does not present a substantial 

question. See Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super. 

2013) (claim that trial court failed to consider defendant’s rehabilitative needs 

and therefore the sentence is manifestly excessive does not present 
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substantial question). Even if we considered this claim to raise a substantial 

question, no relief is due. 

When we review the discretionary aspects of sentencing, “the proper 

standard of review when considering whether to affirm the sentencing court’s 

determination is an abuse of discretion.” Moury, 992 A.2d at 169 (quoting

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)). An abuse of 

discretion is not found “merely because an appellate court might have reached 

a different conclusion.” Id. at 170. Instead, an abuse of discretion exists

where there is “manifest unreasonableness, or partiality, prejudice, bias, or 

ill-will, or such lack of support so as to be clearly erroneous.” Id. 

Johnson maintains that “[t]he court did not even try to address Mr. 

Johnson’s rehabilitative needs or impose an individualized sentence.” 

Johnson’s Br. at 24. He contends that factors such as obtaining his GED, 

“growing up in a neighborhood surrounded by drug dealers and criminals,” as 

well as participating in a substance abuse treatment program, were ignored 

by the court. Id. at 25-26. However, the record before us belies Johnson’s 

claims.

Prior to imposing sentence the trial court considered the PSI which 

included the very mitigating factors that Johnson maintains the court ignored. 

Thus, we “presume that the sentencing judge was aware of relevant 

information regarding [Johnson’s] character and weighed those considerations 

along with mitigating statutory factors.” Commonwealth v. Devers, 546 

A.2d 12, 18 (Pa. 1988). Additionally, as stated above, the court considered 
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both parties’ sentencing memoranda, the facts and circumstances of the case,

and Johnson’s prior record score. N.T., Sentencing at 36. Specifically, the 

court stated the following:

I’ve considered the presentence, the prior record score, the 

memorandums of counsel, as well all the facts and circumstances 

of this case and sentencing guidelines. I also am considering what 

I saw at that scene that day, the alley, the darkness that was 

there that night, not when we went there, and what occurred 

based on what I think the jury found, which was there was a chase 

and the defendant was found in that what I would call very 

disgusting corner of an ally with large fences, where the gun was 

later found after having been discarded. 

Id. at 36-37.

The court was well aware of Johnson’s upbringing based on the 

information in the PSI. However, it did not give it the weight that Johnson 

believes it should have been given. This does not make his sentence

unreasonable; nor does it mean that the trial court completely ignored the 

mitigating factors as he suggests. We therefore find that the court acted within 

its discretion in sentencing Johnson. 

Judgment of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/18
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