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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AKEEM JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2880 EDA 2016

Appeal from the Judgment of Sentence August 4, 2016

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

No(s): MC-51-CR-0013675-2015

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 25, 2019

Akeem Johnson was found in violation of probation and sentenced to 

prison. He challenges discretionary aspects of his revocation sentence. We 

affirm.

Johnson was charged with numerous crimes in relation to his sexual 

contact with his then-four-year-old cousin. Johnson entered a negotiated 

guilty plea in October 2015 to one count of corruption of minors. Pursuant to 

the plea agreement, the court sentenced him to five years of probation and 

placed him under the supervision of the substance abuse unit. The conditions

of his probation included his undergoing substance abuse and psychosexual

evaluations, and complying with any treatment recommendations resulting 

from those evaluations. 

Johnson was then found in violation of his probation three times. The 

first time, in January 2016, the court found him in violation of the conditions 
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of his probation and re-imposed the five-year probation sentence. However, 

the court directed that he be placed under the supervision of the sex offender 

unit, required him to meet all conditions of a sex offender treatment program, 

and ordered him to have “no unsupervised contact with minors.” Order, 

Violation of Probation, 1/27/16. 

The second time, Johnson’s lawyer said that the probation department 

had learned that Johnson was living with his mother, who would baby-sit 

children in her home. Counsel asserted that since being detained for the 

violation, Johnson had found another place to live. The court again found him 

in technical violation, revoked his probation, and sentenced him to a new fiveyear term of probation, with the same conditions as before. Order, Violation 

of Probation, 2/29/16.

The third time, which is the source of this appeal, Johnson’s probation 

officer testified1that when he first met with Johnson, they went over the sex 

offender unit rules, which prohibited Johnson from participating in social 

media. The probation officer said Johnson admitted he had a Facebook 

account, which the probation officer then deleted, and Johnson claimed he had 

no other social media accounts. The probation officer then searched Johnson’s 

cell phone and found text messages in which Johnson bragged that he had 

created social media accounts under false names so that the probation officer 

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1 The Notes of Testimony from the August 4, 2016 hearing are incorrectly 

captioned as being from August 4, 2015. The error in the year is evident from 

the judge’s on-the-record references to events in January and February 2016. 
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would not find them. The officer nonetheless found and deleted Johnson’s 

WhatsApp and Snapchat accounts. The officer also discovered numerous nude 

photos of Johnson’s sister, including one of her engaged in a sex act. He also 

found numerous pictures of children, including pictures of Johnson with 

children, photos of a nude female child, and an image of an infant in which 

her genitals were visible. 

The probation officer said that Johnson failed to attend a sex offender 

treatment session and failed to appear at a scheduled office visit with the 

probation officer. Johnson also violated program rules by leaving the 

jurisdiction without approval on two occasions, once to get a haircut in Darby, 

Delaware County, and once to go to Ventnor, NJ. 

The probation officer searched Johnson’s phone again in July 2016, and 

found another image of Johnson’s sister in the nude that Johnson had 

downloaded from Instagram and sent by text message to another person. The 

officer then found numerous other pictures of minor children and photos of 

naked women. He also discovered that Johnson had opened a Vimeo account, 

as well as text messages between Johnson and his sister evidencing that 

Johnson had been accessing Instagram. The probation officer said that later 

searches of Johnson’s cell phone turned up a screen shot of an Instagram

account, which demonstrated that Johnson had accessed that application. He 

also found sexualized images of women and children. The officer additionally 

testified that Johnson had tested positive for marijuana and never provided 

verification that he had enrolled in drug treatment. 
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Johnson presented his sister’s testimony. She confirmed that the nude 

photos were of her and said that the children in the photos included her 

daughter and her young cousin. However, she claimed that the phone had 

previously been hers and she had “downloaded everything on there.” N.T., 

8/4/16, at 18. 

The court revoked Johnson’s probation and sentenced him to two to four 

years in prison followed by one year of probation. The court pointed out that 

this was Johnson’s third violation, and characterized Johnson’s behavior as 

“escalating.” Id. at 23. The court stated that whether Johnson or his sister 

put the photographs on the phone, at the very least Johnson knew they were 

on the phone and left them there. The court also pointed out that Johnson had 

gone out of state without permission, failed a drug test, never attended drug 

treatment, and lied to the probation officer. Acknowledging that the violation 

was technical, the judge said he was imposing the two-to-four-year prison 

sentence, followed by one year of probation, “because you have not abided 

by my probation.” Id. at 27. Defense counsel voiced a request for a lesser, 

in-county sentence, but the judge rejected it: “No. He is getting what I just 

gave him, and he will be in sex offender treatment in a state correctional 

institution. That’s what I want him to have. He is dangerous. He does not fulfill 

the promise of wanting rehabilitation. He just keeps breaking the rules.” Id.

at 28-29. 

Johnson moved for reconsideration, arguing the sentence exceeded 

what was necessary to protect the public, foster his rehabilitation, or vindicate 
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the court’s authority. The court denied the motion and Johnson filed this 

appeal. The court did not issue a Pa.R.A.P. 1925(b) order. Johnson’s brief

presents a single question:

Did not the trial court err and abuse its discretion by 

imposing a sentence which is manifestly excessive, and 

which violates Section 9771 and 9721 of the Sentencing 

Code as a sentence of total confinement for technical 

violations of probation, because it considered improper 

sentencing factors, is unreasonable and not necessary to 

vindicate the authority of the court, and failed to consider 

the least restrictive alternatives, the needs of the Appellant 

and the possible harm to the community?

Johnson’s Br. at 3.

Johnson contends that in fashioning his sentence, the lower court relied 

on his accessing social media, in violation of the First Amendment, and based 

the sentence on a recitation of underlying facts not of record. He also makes 

a three-pronged attack on the court’s imposition of a prison sentence. He 

argues that because the court found him in mere “technical” violation of 

probation, and he was not convicted of a new crime, there is no evidence that 

he is likely to commit another crime if the court did not imprison him. He 

further argues that total confinement was unwarranted to vindicate the court’s 

authority. 

Johnson acknowledges that he is challenging discretionary aspects of his 

sentence. See id. at 2. Our standard of review is therefore abuse of discretion, 

and our scope of review is plenary. Commonwealth v. Walls, 926 A.2d 957, 

964 (Pa. 2007).
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There is no right in Pennsylvania to appellate review of discretionary 

aspects of a sentence. Rather, to obtain such review, an appellant must 

include in its appellate brief a statement demonstrating a substantial question 

that the sentence was inappropriate under the Sentencing Code. See 42 

Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). We thus ask four questions before 

considering the merits of such a challenge: 1. Was the appeal timely? 2. Did 

the appellant preserve the issue below? 3. Does the appellant’s brief include 

a Pa.R.A.P. 2119(f) statement petitioning for allowance of appeal? 4. Did the 

appellant demonstrate a substantial question? See Commonwealth v. 

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

Here, the appeal was timely,2 and Johnson’s brief includes a Rule 

2119(f) statement. However, he did not preserve all of his issues below. 

Although his motion for reconsideration argued that the social media ban 

would make his life “difficult,” he did not raise his First Amendment argument

in the lower court. See Johnson’s Br., Ex. A, at 2. Nor did his motion contend 

that the court relied on facts outside the record in imposing sentence, and he 

did not raise any objection on either of these bases during the violation 

hearing. Those issues are therefore waived. See Pa.R.A.P. 302(a). His 

remaining issues – his arguments that the evidence did not demonstrate that 

he was likely to reoffend if the court did not imprison him, and that a prison 

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2 The 30th day after the court entered the sentencing order was Saturday, 

September 3, 2016, and the following Monday, September 5, 2016, was Labor 

Day. His September 6, 2016 appeal was thus timely. See Pa.R.C.P. 106(b); 

D.K. v. S.P.K., 102 A.3d 467, 470 n.1 (Pa.Super. 2014). 
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sentence was not necessary to vindicate the court’s authority – are properly 

before us and present a substantial question. See Commonwealth v. 

Ferguson, 893 A.2d 735, 737 (Pa.Super. 2006). However, they do not merit 

relief. 

A court revoking probation may not impose a sentence of total 

confinement unless it finds at least one of the following: (1) the defendant has 

been convicted of another crime; (2) the defendant’s conduct indicates that it 

is likely the defendant will commit another crime if not imprisoned; or (3) such 

a sentence is essential to vindicate the authority of the court. 42 Pa.C.S.A. § 

9771(c). 

We perceive no abuse of discretion here. At the very least, Johnson’s

commission of what the lower court termed “serial and serious violations” 

justified the imposition of a prison sentence, as necessary to vindicate the 

court’s authority. See Trial Court Opinion, filed Oct. 13, 2017, at 6. The court 

has repeatedly found him in violation of probation, and this time, it cited at 

least five different ways in which Johnson violated the terms of his probation. 

Id. We also see no abuse of discretion in the lower court’s conclusion that 

Johnson’s behavior was “escalating,” such that he was likely to reoffend if the 

court did not imprison him. The lower court did not abuse its discretion in 

sentencing Johnson to prison.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/25/19