J-A10036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNETH JEROME JOHNSON

Appellant No. 1185 MDA 2014

Appeal from the Judgment of Sentence June 19, 2014

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0000798-2013

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015

Appellant Kenneth Jerome Johnson appeals from the judgment of 

sentence entered in the Lycoming County Court of Common Pleas following 

his jury trial convictions for rape of an unconscious person, sexual assault 

and indecent assault.1 We affirm.

The relevant facts and procedural history of this appeal are as follows. 

On February 28, 2013, T.P. (“Victim”) was consuming alcoholic beverages at 

the Port Tavern with her friends Athenia Smith, Menunah Sillah, and Jameer 

Harrod. N.T., 1/27/14, at 10-12. Appellant was also at the bar, mostly 

socializing with Smith. Id. at 13. When the bar closed, Victim drove her 

friends back to Smith’s house, and Appellant followed them. Id. at 14. 

____________________________________________

1 18 Pa.C.S. §§ 3121(a)(3), 3124.1, 3126(a)(4), respectively
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After consuming additional alcoholic beverages at the house, with her friends 

and Appellant, Victim went to sleep on the couch. Id. at 23. Victim awoke 

to find Appellant’s penis in her vagina. Id. at 25. Victim fought Appellant 

off of her and eventually chased him out of the house. Id. at 28-30.

On January 28, 2014, a jury convicted Appellant of the aforementioned 

charges. On June 19, 2014, the court sentenced Appellant to 81-168 

months’ incarceration, followed by 3 years’ probation, for rape of an 

unconscious person. The other convictions merged for sentencing purposes. 

On July 14, 2014, Appellant timely filed a notice of appeal. On July 22, 

2014, the court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely 

complied on July 25, 2014.

Appellant raises the following issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN 

IMPOSING A MINIMUM SENTENCE OF 81 MONTHS, A 

SENTENCE WITHIN THE STANDARD RANGE OF THE 

SENTENCING GUIDELINES, WHERE THE APPELLANT’S 

CONDUCT WAS LESS THAN EGREGIOUS, HE WAS FOUND 

NOT TO BE A SEXUALLY VIOLENT PREDATOR, AND HIS 

EXEMPLARY CONDUCT BETWEEN THE TIME OF HIS 

ARREST AND SENTENCING?

Appellant’s Brief at 4.

In his sole issue on appeal, Appellant challenges the discretionary 

aspects of his sentence. He argues his sentence is unreasonable in light of 

his history, character, and rehabilitative needs. We disagree.
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When reviewing a challenge to the discretionary aspects of sentencing, 

we determine whether the trial court has abused its discretion. 

Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.2014). 

“Challenges to the discretionary aspects of sentencing do not entitle a 

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super.2011). Before this Court can address such a discretionary 

challenge, an appellant must comply with the following requirements:

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (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.

Id.

Presently, Appellant filed a timely notice of appeal and preserved his 

issues in a post-sentence motion. Appellant’s brief includes a concise 

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

the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). 

Therefore, we must determine whether Appellant raises a substantial 

question for our review. 

“The determination of what constitutes a substantial question must be 

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

526, 533 (Pa.Super.2011). Further:
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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.

Id. (internal citations omitted). 

Additionally, “a claim of excessiveness that is raised against a 

sentence within the statutory limits fails to raise a substantial question as a 

matter of law.” Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa.2002).

Here, the court sentenced Appellant to 81-168 months’ incarceration, 

followed by 3 years’ probation. The minimum sentence falls within the 

guideline range of 72-90 months’ incarceration. Thus, Appellant’s bald 

assertion that his sentence is too harsh fails to raise a substantial question 

for review. See Mouzon, supra.

Judgment of sentence affirmed.

President Judge Gantman joins in the memorandum.

Judge Mundy concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015