J-A14031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ADAM RUSSELL LANE,

Appellant No. 1232 MDA 2015

Appeal from the Judgment of Sentence June 18, 2015

in the Court of Common Pleas of Wyoming County

Criminal Division at No.: CP-66-CR-0000436-2014

BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 29, 2016

Appellant, Adam Russell Lane, appeals from the judgment of sentence 

imposed pursuant to his open guilty plea to statutory sexual assault, 

unlawful contact with a minor, and corruption of minors.1 We affirm.

We take the following facts from the trial court’s September 15, 2015 

opinion and our independent review of the record. On April 4, 2014, in a 

case preceding this one, Appellant pleaded guilty to corruption of minors for 

his conduct of engaging in sexual intercourse with a minor under the age of 

sixteen between September 1, 2012, and April 3, 2013. On June 17, 2014, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3122.1(a)(1), 6318(a)(1), and 6301(a)(1)(ii), 

respectively.
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Appellant was sentenced to a term of not less than six nor more than 

twenty-three-and-one-half months’ incarceration.

On February 4, 2015, the Commonwealth filed a criminal information 

against Appellant in the present case. The information charged Appellant 

with multiple counts of involuntary deviate sexual intercourse and related 

charges for his conduct of engaging in sexual intercourse with a second 

minor under the age of sixteen between September 1, 2013, and April 30, 

2014.

On February 6, 2015, Appellant pleaded guilty in the instant case to 

the charges of statutory sexual assault, unlawful contact with a minor, and 

corruption of minors. Prior to sentencing, Appellant was assessed by the 

Sexual Offender’s Assessment Board, which concluded that he did not meet 

the criteria for a sexually violent predator. On June 10, 2015, with the 

benefit of a pre-sentence investigation report (PSI), the court sentenced 

Appellant to consecutive terms of incarceration of not less than sixteen nor 

more than forty-eight months for statutory sexual assault, not less than 

eighteen nor more than forty-eight months for unlawful contact with a 

minor, and not less than fourteen nor more than thirty-six months for 

corruption of minors, resulting in an aggregate term of not less than fortyeight nor more than 132 months’ incarceration. On June 18, 2015, the court 

entered an amended order to alter the language pertaining to his sexual 

offender registration requirements. Appellant filed a timely post-sentence 
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motion on June 22, 2015, which the trial court denied the same day. 

Appellant timely appealed.2

Appellant raises five issues for this Court’s review:

I. Did the sentencing court improperly treat Appellant as a 

recidivist when the court enhanced Appellant’s sentence 

based on his prior conviction because the conduct giving 

rise to the current case occurred before Appellant’s 

sentencing in the prior case?

II. Is Appellant serving an illegal and unconstitutional 

sentence because the sentencing court imposed another 

punishment for a prior offense the court had already 

sentenced Appellant for?

III. Were Appellant’s three sentences all aggravated sentences 

because the minimums fell at the start of the aggravated 

guidelines?

IV. Did the sentencing court abuse its discretion and enter a 

clearly unreasonable sentence when the court imposed 

three consecutive sentences at the cusp of the standard 

and aggravated ranges without placing any valid reasons 

on the record except that “any lesser of a sentence would 

depreciate the nature of [Appellant’s] actions[?”]

V. Does the substantial question requirement under Rule 

2119(f) violate Appellant’s right under the Pennsylvania 

Constitution to review of a court of record’s decision by an 

appellate court?

(Appellant’s Brief, at 3).

We will address Appellant’s first and fourth issues first because they 

both challenge the discretionary aspects of his sentence, which “must be 

____________________________________________

2 On August 5, 2015, Appellant filed a timely statement of errors complained 

of on appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The 

court filed an opinion on September 15, 2015. See Pa.R.A.P. 1925(a).
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considered a petition for permission to appeal.” Commonwealth v. Best, 

120 A.3d 329, 348 (Pa. Super. 2015) (citation omitted). To preserve claims

relating to the discretionary aspects of a sentence properly, an appellant 

must first raise them with the trial court. See Commonwealth v. Foster, 

960 A.2d 160, 163 (Pa. Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011).

3

 

Further, 

[t]he Rules of Appellate Procedure mandate that, to obtain 

review of the discretionary aspects of a sentence, the appellant 

must include in his brief a Concise Statement of Reasons Relied 

Upon for Allowance of Appeal. See Pa.R.A.P. 2119(f). This 

statement must raise a substantial question as to whether the 

trial judge, in imposing sentence, violated a specific provision of 

the Sentencing Code or contravened a fundamental norm of the 

sentencing process.

Best, supra at 348 (case citations and quotation marks omitted).

In the instant case, Appellant included a Rule 2119(f) statement in his 

brief, in which he maintains that the trial court “improperly relied on [his] 

2014 conviction to enhance the length of his sentence” and “failed to place 

any valid reasons on the record in support of [his] sentence,” which violated 

____________________________________________

3 Here, in his post-sentence motion, Appellant raised his first issue, that the 

court improperly relied on his 2014 conviction when sentencing him in the 

present case. (See Motion for Reconsideration and Extraordinary Relief, 

6/22/15, at 2-3). However, he failed to raise his fourth claim, that the court 

abused its discretion by failing to place adequate reasons on the record in 

support of his sentence. (See id.). Therefore, we deem Appellant’s fourth 

claim waived for his failure to raise it with the trial court. See Foster, 

supra at 163; see also Pa.R.A.P. 302(a) (“Issues not raised in the lower 

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

Moreover, for the reasons discussed below, it would not merit relief.
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“our fundamental sentencing norms.” (Appellant’s Brief, at 11-12). These 

claims raise a substantial question. See Commonwealth v. Coulverson, 

34 A.3d 135, 143 (Pa. Super. 2011) (finding claim challenging trial court’s 

alleged failure to offer specific reasons for appellant’s sentence pursuant to 

section 9721(b) raises substantial question); Commonwealth v. P.L.S., 

894 A.2d 120, 127 (Pa. Super. 2006), appeal denied, 906 A.2d 542 (Pa. 

2006) (“A substantial question exists where the appellant presents a 

plausible argument that the sentence violates a provision of the Sentencing 

Code or is contrary to the fundamental norms underlying our sentencing 

scheme.”) (citation omitted). Therefore, we will address the merits of 

Appellant’s claims.

Our standard of review of a sentencing challenge is well-settled:

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. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) 

(citation omitted). 

When imposing a sentence, the sentencing court must 

consider the factors set out in 42 [Pa.C.S.A.] § 9721(b), that is, 

the protection of the public, gravity of offense in relation to 

impact on victim and community, and rehabilitative needs of the 
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defendant. And, of course, the court must consider the 

sentencing guidelines. 

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015), appeal 

denied, 126 A.3d 1282 (Pa. 2015) (citation and quotation marks omitted). 

“Where, as here, the trial court has the benefit of a pre-sentence report, we 

presume that the court was aware of relevant information regarding the 

defendant’s character and weighed those considerations along with any 

mitigating factors.” Johnson, supra at 827 (citation omitted).

In Appellant’s first issue, he argues that the trial court improperly 

treated him as a recidivist by considering his 2014 conviction for purposes of 

sentencing. (See Appellant’s Brief, at 13-16). Specifically, he argues that, 

because he was not sentenced in that case at the time he committed illegal 

acts that form the basis of the current legal action, and the 2014 conviction 

was not included in his prior record score, the court abused its discretion in 

considering it. (See id.). Appellant’s issue does not merit relief.

Initially, Appellant properly asserts that, pursuant to section 303.5(c) 

of the Pennsylvania Sentencing Guidelines, un-sentenced convictions, “[i]f 

no sentence has yet to be imposed on an offense, the offense shall not be 

counted in the calculation of the Prior Record Score.” (Appellant’s Brief, at 

13 (citing 204 Pa. Code. § 303.5(c))). In fact, he concedes that his 2014 

conviction was not included in his prior record score. (See id. at 15). 

However, we disagree with Appellant’s subsequent argument that, because 
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the prior conviction was not included in his prior record score, the trial court 

abused its discretion in considering it. (See id. at 13, 15). 

Pursuant to section 303.5(d) of the Pennsylvania Sentencing 

Guidelines, Adequacy of Prior Record Score, expressly states, “[t]he court 

may consider at sentencing prior convictions . . . not counted in the 

calculation of the Prior Record Score, in addition to other factors deemed

appropriate by the court.” 204 Pa. Code 303.5(d). In fact, it is well-settled 

that “prior convictions, of whatever nature, with law enforcement 

authorities, are unquestionably among the circumstances to be scrutinized in 

determining the appropriate sentence.” Commonwealth v. Kraft, 737 

A.2d 755, 757 (Pa. Super. 1999), appeal denied, 747 A.2d 366 (Pa. 1999) 

(citation omitted). Furthermore, consideration of earlier convictions not 

included in a prior record score “is not only permissible, justice demands it.” 

Id.

Here, Appellant pleaded guilty to corruption of minors in the first case 

on April 4, 2014. (See Appellant’s Brief, at 5). The conduct complained of 

in the current case occurred “on separate and distinct dates” between 

September 1, 2013 through April 30, 2014. (N.T. Guilty Plea, 2/06/15, at 

13). Therefore, we conclude that the trial court did not abuse its discretion 

in considering Appellant’s prior conviction for corruption of minors when 

imposing sentence in this case. See 204 Pa. Code 303.5(d); Johnson, 
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supra at 826; Kraft, supra at 757. Appellant’s first issue does not merit 

relief.

Moreover, while we are cognizant of the “recidivist philosophy” on 

which Appellant relies, (Appellant’s Brief, at 13, 15-16), it generally has 

been applied to cases involving whether a former conviction should be 

considered a prior conviction for purposes of a recidivist statute. It does not 

stand for the proposition Appellant advances, that because he was not 

sentenced on his first crime at the time he committed the illegal acts in the 

case herein, the court abused its discretion in considering the prior 

conviction. (See id. at 3, 15). For example, as stated by the Pennsylvania 

Supreme Court:

the general purpose of graduated sentencing laws “is to punish 

more severely offenders who have persevered in criminal activity 

despite the theoretically beneficial effects of penal discipline.” 

[Commonwealth v.] Shiffler, [] 879 A.2d [185,] 195 [(Pa. 

2005)] (quoting Commonwealth v. Dickerson, [] 621 A.2d 

990, 992 ([Pa.] 1993)) (emphasis omitted). Stated another 

way, the purpose of such laws is to enhance punishment “when 

the defendant has exhibited an unwillingness to reform his 

miscreant ways and to conform his life according to the law.” 

[Id.]. Accordingly, [f]ollowing the recidivist logic, each strike 

that serves as a predicate offense must be followed by 

sentencing and, by necessary implication, an opportunity for 

reform, before the offender commits the next strike. However, 

“[t]he recidivist philosophy, while a valid policy, is not the only 

valid sentencing policy, nor is it a constitutional principle or 

mandate,” and the legislature is free to enact a statute “which 

clearly expresses a different application.” [Id.] at 196.

Commonwealth v. Jarowecki, 985 A.2d 955, 961 (Pa. 2009) (footnote, 

and some quotation marks and case citations omitted).
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In the case sub judice, the trial court did not sentence Appellant on a 

second “strike” pursuant to a “graduated sentencing law.” Id. Instead, the 

the trial court considered the prior crime as a factor it “scrutinized in 

determining the appropriate sentence.” Kraft, supra at 757. 

Indeed, the cases on which Appellant relies for his recidivist policy 

argument all considered the philosophy in relation to a “graduated 

sentencing law.” (Appellant’s Brief, at 13-15). For example, Appellant relies 

on Dickerson, supra, for the theory that “one must have the opportunity 

for rehabilitation before being punished more severely for committing a 

second crime.” (Id. at 13). However, in Dickerson, the High Court 

examined the language of the recidivist statute, 18 Pa.C.S.A. § 9714, which 

imposes a five-year mandatory minimum sentence where “the previous 

conviction occurred within seven years of the date of the commission of the 

instant offense.” Dickerson, supra at 992. In considering when a prior 

conviction could be considered for purposes of section 9714, our Supreme 

Court held “that a prior record score under the sentencing guidelines cannot 

include a prior offense which has not resulted in a conviction before the later 

offense was committed.” Id. at 993. 

Here, Appellant’s prior conviction was not included in his prior record 

score. In light of the well-settled principle that consideration of earlier 

convictions not included in a prior record score “is not only permissible, 

justice demands it[,]” Kraft, supra at 757, we decline to read the holding of 
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Dickerson as standing for the proposition that a court shall not consider a 

prior conviction if a defendant has not been sentenced on it at the time of 

his commission of a second crime.

Likewise, we are not legally persuaded by the cases Appellant relies on 

for his argument that the court stacked his prior conviction on to his current 

ones for the purpose of sentencing. (See Appellant’s Brief, at 14-15). For 

example, in Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000), 

appeal denied, 759 A.2d 920 (Pa. 2000), this Court found that the trial court 

abused its discretion in sentencing the defendant above the mandatory 

minimum where “the legislature already factored that consideration into the 

mandatory minimum three-year sentence pursuant to 18 Pa.C.S.[A.] § 

7508(a)(3)(i).” Goggins, supra at 732. Goggins is inapposite to the case 

before us, because here, Appellant was not sentenced above a statutorily 

prescribed mandatory minimum on the basis of his prior conviction. For all 

of these reasons, Appellant’s first issue lacks merit.

In his fourth issue, Appellant argues that the trial court abused its 

discretion by imposing an unreasonable sentence where it “had no valid 

reasons for imposing three consecutive sentences at the cusp of the 

standard and aggravated guidelines.” (Appellant’s Brief, at 25). As 

previously noted, this issue is waived for Appellant’s failure to present it to 

the trial court. (See supra at 4 n.3). However, it also would lack merit, 

even if properly preserved in the trial court.
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It is well-settled that:

When imposing a sentence, the sentencing court must consider 

the factors set out in 42 Pa.C.S.[A.] § 9721(b), that is, the 

protection of the public, gravity of offense in relation to impact 

on victim and community, and rehabilitative needs of the 

defendant. . . . [A]nd, of course, the court must consider the 

sentencing guidelines.

Coulverson, supra at 144 (citation omitted). “[I]f the sentencing court, 

after considering the appropriate section 9721 sentencing factors, states 

valid reasons for its sentence, which are supported by the record, this Court 

must affirm the decision . . . .” Commonwealth v. Marts, 889 A.2d 608, 

616 (Pa. Super. 2005) (citation omitted). “[W]hen sentencing an appellant, 

the trial court is permitted to consider the seriousness of the offense and its 

impact on the community.” Id. at 615 (citation and internal quotation 

marks omitted).

Here, we first observe that the trial court considered “an extensive 

[PSI.]” (Trial Court Opinion, 9/15/15, at 4). Therefore, “we presume that 

the court was aware of relevant information regarding [Appellant’s] 

character and weighed those considerations along with any mitigating 

factors.” Johnson, supra at 827 (citation omitted). Additionally, pursuant 

to section 9741(b), the trial court set forth its reasons for imposing its 

sentence on Appellant, including “the serious nature of the offense, the 

offense occurred while [Appellant] was pending sentencing for a similar 

offense[,] . . . the sentence is within the standard range guidelines[,] and 
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any lesser of a sentence would depreciate [Appellant’s] conduct.” (N.T. 

Sentencing, 6/10/15, at 10; see also id. at 11-13). 

Hence, based on our review of the entire record in this matter, which 

reveals a pattern of Appellant’s engaging in illegal sexual contact with 

minors under sixteen years of age, we conclude that the trial court did not 

abuse its discretion in imposing Appellant’s sentence where it “state[d] valid

reasons for its sentence, which are supported by the record[.]” Marts, 

supra at 616; see also Johnson, supra at 827. Appellant’s fourth 

challenge would not merit relief.

We now turn to Appellant’s second, third, and fifth claims.

In Appellant’s second claim, he maintains that the court erred as a 

matter of law when it violated his protection against double jeopardy by 

“impos[ing] another punishment for a prior offense for which [it] had already 

sentenced [him].” (Appellant’s Brief, at 16). Appellant’s issue does not 

merit relief.

The proscription against twice placing an individual in 

jeopardy of life or limb is found in both the Fifth Amendment to 

the United States Constitution, as well as in Article 1, Section 10 

of the Pennsylvania Constitution. Yet, as the Pennsylvania 

Supreme Court has held, Pennsylvania’s Double Jeopardy Clause 

involves the same meaning, purpose, and end [as the Double 

Jeopardy Clause in the United States Constitution], thus, 

[Pennsylvania’s clause] has generally been construed as 

coextensive with its federal counterpart.

The Double Jeopardy Clause embodies three protections: 

[i]t protects against a second prosecution for the same offense 

after acquittal. It protects against a second prosecution for the 
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same offense after conviction. And it protects against multiple 

punishments for the same offense.

Commonwealth v. Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013), 

appeal denied, 84 A.3d 1062 (Pa. 2014) (citations, quotation marks, and 

footnote omitted). A question regarding whether an individual’s right 

against double jeopardy has been violated is a question of law; therefore, 

our standard of review is de novo and our scope of review is plenary. See 

id.

Here, Appellant refers to a discrete statement made by the trial court 

in its September 15, 2015 opinion about “the totality of [Appellant’s] 

sexually related offenses[,]” as evidence that the trial court sentenced him 

twice for his prior offense. (Appellant’s Brief, at 17). However, he fails to 

identify on the record where a double sentence was, in fact, imposed. (See 

id.). In fact, Appellant’s argument that the court violated his right against 

double jeopardy is belied by the record. At sentencing, the court merely 

considered Appellant’s prior conviction as one of the factors for its decision, 

and then expressly sentenced him on only the three crimes to which he 

pleaded guilty. (See N.T. Sentencing, 6/10/15, at 9-13). Therefore, after 

our de novo review, we conclude that the trial court did not impose an illegal 
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sentence by violating Appellant’s rights against double jeopardy. See 

Hallman, supra at 1260. Appellant’s second issue does not merit relief.4 

In his third claim, Appellant asks this Court to determine as a matter 

of law that the trial court sentenced him to “aggravated sentences because 

the minimums fell at the start of the aggravated guidelines[.]” (Appellant’s 

Brief, at 18).5 Appellant’s issue lacks merit.

Appellant concedes that, where a “court explicitly states its intention to 

impose a standard sentence, then a sentence at the cusp of the standard 

and aggravated ranges is a standard guideline sentence.” (Appellant’s Brief, 

at 18) (citing Commonwealth v. Lopez, 627 A.2d 1229, 1231 (Pa. Super. 

1993), implied overruling on different grounds recognized by, 

Commonwealth v. Rosario-Hernandez, 666 A.2d 292 (Pa. Super. 1995) 

(“Unless the trial court states to the contrary, this [C]ourt will presume 

____________________________________________

4 Appellant also takes issue with the fact that the trial court stated that he 

engaged in illegal sexual contact with a minor for one-and-one-half years 

when the behavior in this case only occurred for an alleged eight months, 

and the contact in the first case occurred for approximately seven months. 

(See Appellant’s Brief, at 17). However, we read the court’s comment, not 

as evidence of its improper attempt to punish him twice for the first crime, 

but as a general observation about Appellant’s character that included 

continued inappropriate behavior.

5 Appellant also claims that the court erred in failing to put sufficient reasons 

for his “aggravated” sentences on the record. (See Appellant’s Brief, at 18). 

However, he failed to raise this issue in his statement of questions involved; 

nor is it fairly suggested thereby. See Pa.R.A.P. 2116(a); (see also 

Appellant’s Brief, at 3). Moreover, because we conclude that the trial court 

imposed standard range sentences, this issue is moot.
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that a sentence at the bound of the standard and aggravated ranges falls in 

the aggravated range.”)) (citation omitted) (emphasis added). Here, the 

trial court expressly stated its intention to impose standard range sentences 

on Appellant. (See N.T. Sentencing, 6/10/15, at 10-13). Therefore, we will 

not presume that the trial court intended Appellant’s sentence to be in the 

agggravated range. See Lopez, supra at 1231. 

Moreover, Appellant invites us to overturn Lopez “to find as a 

concrete rule that a sentence at the cusp of the guidelines between standard 

and aggravated ranges is always an aggravated sentence.” (Appellant’s 

Brief, at 20). This we cannot do. First, we remind Appellant that we grant 

great deference to the sentence imposed by the trial court, and will only 

vacate it if the court has committed an error of law or abuse of discretion. 

See Johnson, supra at 826. Also, “[t]his Court is bound by existing 

precedent under the doctrine of stare decisis and continues to follow 

controlling precedent as long as the decision has not been overturned by our 

Supreme Court.” Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 

2014) (citation and footnote omitted). Therefore, we decline Appellant’s 

invitation to overrule Lopez. Appellant’s fourth issue lacks merit.

Finally, in his fifth issue, Appellant challenges the requirements of 42 

Pa.C.S.A. § 9781 and Pennsylvania Rule of Appellate Procedure 2119(f) on 

the basis that they violate section nine of the Pennsylvania Constitution 

because “they limit an appellant’s right to a direct appeal of his sentence.” 
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(Appellant’s Brief, at 26; see id. at 26-28). Appellant’s issue lacks merit 

where this Court already addressed a nearly identical argument and held 

that section 9781(b) is constitutional.

We observe first that:

The Pennsylvania Supreme Court has consistently held 

that enactments of the General Assembly enjoy a strong

presumption of constitutionality. All doubts are to be resolved in 

favor of sustaining the constitutionality of the legislation. . . . 

[W]e are obliged to exercise every reasonable attempt to 

vindicate the constitutionality of a statute and uphold its 

provisions. . . . Moreover, one of the most firmly established 

principles of our law is that the challenging party must prove the 

act clearly, palpably and plainly violates the constitution.

The power of judicial review must not be used 

as a means by which the courts might substitute its 

judgment as to public policy for that of the 

legislature. The role of the judiciary is not to 

question the wisdom of the action of [the] legislative 

body, but only to see that it passes constitutional 

muster.

Commonwealth v. Elia, 83 A.3d 254, 266-67 (Pa. Super. 2013), appeal 

denied, 94 A.3d 1007 (Pa. 2014) (citations and quotation marks omitted).

In holding that section 9781(b) does not violate the Pennsylvania 

Constitution, this Court observed:

The Pennsylvania Constitution guarantees a right of appeal 

from a court of record:

There shall be a right of appeal in all cases to a 

court of record from a court not of record; and there 

shall also be a right of appeal from a court of record 

or from an administrative agency to a court of record 

or to an appellate court, the selection of such court 

as to be provided by law; and there shall be such 

other rights of appeal as may be provided by law.
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PA. CONST. art. V, § 9. The Judicial Code provides the 

procedure for exercising this right when the issue on appeal is 

the discretionary aspects of the sentence imposed following 

criminal proceedings:

The defendant or the Commonwealth may file 

a petition for allowance of appeal of the discretionary 

aspects of a sentence for a felony or misdemeanor to 

the appellate court that has jurisdiction for such 

appeals. Allowance of appeal may be granted at the 

discretion of the appellate court where it appears 

that there is a substantial question that the sentence 

imposed is not appropriate under this chapter.

42 Pa.C.S.A. § 9781(b). Focusing on the phrases “allowance of 

appeal” and “granted at the discretion of the appellate court,” 

McFarlin argues that this section, in effect, renders this type of 

appeal discretionary in violation of the constitutional right to 

appeal. We do not agree.

We recognize that this right has been construed as 

absolute. We are also aware that § 9781(b) has been construed 

as a limitation upon that right. Nonetheless, the existence of an 

absolute right to appeal does not, in and of itself, render all 

limitations governing the exercise of that right unconstitutional. 

It has long been the law that both the legislature and the courts 

have the authority to enact reasonable regulations controlling 

the exercise of the constitutional right of appeal. All regulations 

are, to some extent, limitations. If the limitation imposed by § 

9781(b) is a reasonable control of the exercise of the right to 

appeal, it is constitutionally valid.

We hold today that § 9781(b) is a reasonable 

regulation of the right to appeal. . . . Only if the trial court 

manifestly abuses its discretion will the sentence be disturbed. . 

. . In effect, § 9781(b) merely requires an accused to indicate 

how the trial court possibly abused its discretion before the 

appellate court will consider the merits of his contentions as to 

the discretionary aspects of his sentence. 

* * *
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. . . We cannot say that the operation of § 9781(b) clearly, 

plainly and palpably violates the constitution, despite the 

phrases “allowance of appeal” and “granted at the discretion of 

the court” which it contains. Therefore, we hold that 42 

Pa.C.S.A. § 9781(b) is a reasonable regulation of the 

exercise of the right to appeal; as such, it does not violate 

Article V, Section 9, of the Pennsylvania Constitution.

Commonwealth v. McFarlin, 587 A.2d 732, 735-36 (Pa. Super. 1991), 

affirmed, 607 A.2d 730 (Pa. 1992) (footnotes and case citations omitted; 

emphases added).6

Here, Appellant raises the same constitutional challenge as that raised 

by McFarlin. (See Appellant’s Brief, at 26-28). Therefore, for the reasons 

stated in McFarlin, we conclude that Appellant’s fifth issue does not merit 

relief.

Judgment of sentence affirmed.

Judge Ott joins the Memorandum.

Judge Bowes files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2016

____________________________________________

6

Pennsylvania Rule of Appellate Procedure 2119(f) regulates the procedure 

for appeals of the discretionary aspects of sentence pursuant to 42 Pa.C.S.A. 

§ 9781(b). See Pa.R.A.P. 2119(f). Therefore, we conclude that it also is 

constitutional for the same reasons enunciated in McFarlin.