J-A11001-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BARBARA J WOLFE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1051 WDA 2022

Appeal from the Judgment of Sentence Entered August 31, 2022

In the Court of Common Pleas of Forest County 

Criminal Division at No.: CP-27-CR-0000038-2021

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: October 27, 2023

Appellant Barbara J. Wolfe appeals from the August 31, 2022 judgment 

of sentence entered in the Court of Common Pleas of Forest County (“trial 

court”), following her nolo contendere plea to conspiracy to commit rape of a 

mentally ill victim and indecent assault.

1 Upon review, we affirm.

The facts and procedural history of this case are undisputed. As 

summarized by the trial court:

On July 19, 2021, [Appellant] was charged with involuntary 

deviate sexual intercourse with a child under the age of 16, a 

felony of the first degree, conspiracy to commit rape of a mentally 

ill or deficient victim, a felony of the first degree, aggravated 

indecent assault, a felony of the second degree, indecent assault, 

a misdemeanor of the first degree, and photographing, filming or 

depicting on a computer a sex act with a child, a felony of the 

second degree. The offense date was February 1, 1994, and the 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 903, and 3126(a)(6), respectively.
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statutes in question were the ones in effect on that date. 

[Appellant] was charged after her husband delivered a video 

recording and note to a county district attorney’s office. The video 

depicted [Appellant] and her husband sexually assaulting the 

husband’s 11-month-old granddaughter at the couple’s home in 

Forest County. The video depicted [Appellant] digitally 

penetrating and manipulating the infant’s vagina and [Appellant]

performing oral sex upon the child. She also filmed her husband 

doing the same as well as her husband penetrating the victim’s 

vagina with his penis. The note indicated who the individuals were 

in the recording and where and when the offenses occurred. The 

husband indicated that he intended to commit suicide and 

immediately did that after he delivered the materials. 

On April 20, 2022, [Appellant] entered a plea of nolo contendere

to conspiracy to commit rape of a mentally ill, a felony of the first 

degree, and indecent assault, a misdemeanor of the first degree. 

The plea was entered as an “open” plea with no sentence 

agreement. The Commonwealth and [Appellant] stipulated at the 

time of the plea that there would be no registration requirement 

as the offenses predated the Megan’s Law and Sex Offender 

Registration and Notification Act (SORNA) statutes, and no 

sexually violent predator assessment by the sexual offender’s 

assessment board was mandated. On August 31, 2022, the court 

sentenced [Appellant] to a state correctional institution for fortyseven (47) months to ninety-four (94) months for conspiracy to 

commit rape, and a consecutive sentence of eleven (11) months 

to twenty-two (22) months for indecent assault. The aggregate 

sentence was for a minimum of fifty-eight (58) months to a 

maximum of one hundred sixteen (116) months. Both sentences 

were at the high end of the standard range of the sentencing 

guidelines in effect at the date of the offense. 

No timely post sentence motion was filed by [Appellant]. On 

September 14, 2022, [Appellant] filed a timely appeal to the 

Pennsylvania Superior Court. On September 15, 2022, the court 

entered an order directing [Appellant] to file a concise statement 

of matters complained of on appeal within twenty-one (21) days. 

[Appellant] filed a timely concise statement on October 3, 2022.

Also, on October 3, 2022, [Appellant] filed a motion to modify 

sentence nunc pro tunc. On that date, the court entered an order 

dismissing the motion as the court lacked jurisdiction under 

Pa.R.A.P. 1701(b)(3). [Appellant’s] statement of matters 

complained of on appeal set forth the solitary issue that “the court 
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erred in imposing a sentence that was manifestly excessive in

length.”

Trial Court Opinion, 10/20/22, at 1-3 (unnecessary capitalizations and 

footnotes omitted). 

On appeal, Appellant repeats the same argument, i.e., the trial court 

abused its discretion “in imposing a sentence manifestly excessive in length.” 

Appellant’s Brief at 6. 

Appellant’s sole issue implicates the discretionary aspects of sentencing. 

In this regards, it is well-settled that “[t]he right to appeal a discretionary 

aspect of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 

1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the 

discretionary aspects of a sentence, an appellant’s appeal should be 

considered as a petition for allowance of appeal. Commonwealth v. W.H.M., 

932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v.

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

An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

[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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 
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the appropriateness of sentence is a question to be evaluated on a case-bycase basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Here, we must note at the outset that Appellant has waived his 

sentencing claim for multiple reasons. As the Commonwealth points out and 

our review of the record confirms, she principally failed to preserve this claim 

for our review because she did not raise it before the trial court at sentencing 

or in the post-sentence motion. See Pa.R.Crim.P. 720(A)(1); see also 

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (holding 

objections to discretionary aspects of sentence are generally waived if not 

raised at sentencing or preserved in a post-sentence motion). In 

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013), we explained 

that “issues challenging the discretionary aspects of a sentence must be raised 

in a post-sentence motion or by presenting the claim to the trial court during 

the sentencing proceedings. Absent such efforts, an objection to a 

discretionary aspect of a sentence is waived.” Cartrette, 83 A.3d at 1042 

(citation omitted). Relatedly, it is axiomatic that “[i]ssues not raised in the 

trial court are waived and cannot be raised for the first time on appeal.” 

Pa.R.A.P. 302(a). Additionally, as happened here, an appellant may not raise 

an issue for the first time in a Rule 1925(b) Statement. Commonwealth v. 

Tejada, 107 A.3d 788, 799 (Pa. Super. 2015). Finally, another reason why 

Appellant’s sentencing issue is waived is because she failed to include in her 

appellate brief a Rule. 2119(f) statement and the Commonwealth has objected 
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to its absence. See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. 

Super. 2004) (noting that we are precluded from reviewing the merits of a 

sentencing claim if the Commonwealth objects to the omission of a Rule 

2119(f) statement). Accordingly, Appellant is not entitled to relief. 

Judgment of sentence affirmed.

Date: 10/27/2023