J-S51003-16

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNETH HARTNETT

Appellant No. 2440 EDA 2015

Appeal from the Judgment of Sentence November 22, 2011

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012575-2010

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 22, 2016

Appellant, Kenneth Hartnett, appeals nunc pro tunc from the judgment 

of sentence imposed in the Philadelphia County Court of Common Pleas, 

following his guilty plea to aggravated assault, rape, and involuntary deviate 

sexual intercourse (“IDSI”).1 We affirm.

The trial court set forth the relevant facts and procedural history as 

follows:

On July 17, 2010, at about 6:00 A.M., 28-year-old [Victim] 

was walking alone in the Kensington neighborhood of 

Philadelphia. She was approached by [Appellant], whom 

she had never met before, and after a conversation, 

[Appellant] led her through a hole in a fence to a secluded 

area. 

____________________________________________

1 18 Pa.C.S.A. §§ 2702, 3121, and 3123, respectively. 
J-S51003-16

- 2 -

As soon as [Victim] emerged from the hole in the fence, 

[Appellant] struck her on the head, rendering [Victim] 

unconscious with one blow. While [Victim] was 

unconscious, [Appellant] raped her. At some point, 

[Victim] began to regain consciousness; she had time to 

notice that her pants were off and there was blood all over 

her face, but as soon a[s] [Appellant] noticed her waking 

up, he smashed her head onto the pavement. [Victim] 

begged for mercy and told [Appellant] that she had a 

child; [Appellant] responded that nobody would miss her if 

she died. 

At some point during this [incident], a passerby, who for 

some reason had also crawled through the hole in the 

fence, saw [Appellant] attacking [Victim] and began to 

scream at him. Covered in [Victim’s] blood, [Appellant] 

fled. [Victim], also covered in blood, managed to find a 

bicyclist, who chased [Appellant] down and contain[ed] 

him until police arrived. 

[Appellant] was arrested that day, and forensic analysis 

confirmed that the semen found in [Victim’s] vagina 

belonged to [Appellant]. [Victim] was also able to identify 

[Appellant] during a line-up on September 13, 2010. 

As a result of [Appellant] smashing her head into the 

concrete ground, [Victim’s] skull was compressed into her 

brain. [Victim’s] head is permanently misshapen. She is 

unable to turn her head in a normal fashion and [s]he 

suffers from severe memory loss, and as a result cannot 

be left alone or allowed to take care of her young 

daughter; if she even tries to prepare her own food, she 

will forget there is food on the stove or in the microwave 

and leave it there to burn. [Victim] also suffers from 

nightmares relating to the attack. 

[Victim’s] mother and other family members must now 

care both for [Victim’s] six-year-old daughter and [Victim] 

herself. [Victim] cannot drive, have a job, or even help 

her daughter with first-grade-level homework. 

(Trial Court Opinion, filed December 18, 2012, at 1-2). 
J-S51003-16

- 3 -

On August 22, 2011, Appellant entered an open guilty plea to 

aggravated assault, rape, and IDSI. On November 22, 2011, the court 

sentenced Appellant to concurrent terms of 61⁄2─13 years’ incarceration for 

rape and IDSI. Additionally, the court imposed a consecutive term of 10─20 

years’ incarceration for aggravated assault. Appellant’s aggregate sentence 

was 161⁄2─33 years’ incarceration. On December 2, 2011, Appellant timely 

filed a post-sentence motion, which the trial court denied on December 6, 

2011. On December 22, 2011, Appellant timely filed a notice of appeal. 

This Court dismissed the appeal, for failure to file a brief, on March 6, 2013. 

On June 6, 2013, Appellant timely filed a PCRA petition. The PCRA 

court granted relief on August 7, 2015, by reinstating Appellant’s appeal 

rights nunc pro tunc. On August 13, 2015, Appellant timely filed a notice of 

appeal nunc pro tunc. The court ordered Appellant on December 23, 2015, 

to file a Rule 1925(b) statement, and Appellant timely complied. 

Appellant raises one issue on appeal:

WHETHER APPELLANT’S SENTENCE WAS UNDULY HARSH 

AND UNREASONABLE. 

(Appellant’s Brief at 8). 

Appellant argues the court imposed an unduly harsh and unreasonable 

sentence because the court gave short shrift to mitigating factors presented 

in his case. Specifically, Appellant contends the court failed to consider 

Appellant’s childhood circumstances, criminal background, character, 

remorse, and general rehabilitative needs. Appellant asserts he should have 
J-S51003-16

- 4 -

received some mitigation of his sentence, instead of an aggravation of his 

sentence, because his prior offense score was zero. Additionally, Appellant 

argues a post-sentence hearing was necessary to present additional facts 

pertaining to Appellant’s harsh childhood circumstances by way of character 

testimony. Appellant concludes the sentence was manifestly excessive. As 

presented, Appellant challenges the discretionary aspects of his sentence. 

See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating 

claim that sentence is manifestly excessive challenges discretionary aspects 

of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536 

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) 

(stating claim that sentencing court failed to consider or did not adequately 

consider certain factors challenges discretionary aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 

910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary 

sentencing issue: 

[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). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 
J-S51003-16

- 5 -

Objections to the discretionary aspects of sentence are generally waived if 

they are not raised at the sentencing hearing or in a motion to modify the 

sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 

788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 

(2003).

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating a substantial question as to the 

appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 

2119(f). “The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting 

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), 

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). 

“Generally, Pennsylvania law ‘affords the sentencing court discretion to 

impose its sentence concurrently or consecutively to other sentences being 

imposed at the same time or to sentences already imposed. Any challenge 
J-S51003-16

- 6 -

to the exercise of this discretion ordinarily does not raise a substantial 

question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011) 

(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super. 

2006)). “An allegation that a sentencing court failed to consider or did not 

adequately consider certain factors does not raise a substantial question that 

the sentence was inappropriate.” Cruz-Centeno, supra at 545. Cf. 

Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.Super. 2003) (en banc) 

(stating claim that court imposed sentence in aggravated range without 

considering mitigating circumstances constitutes substantial question as to 

discretionary aspects of sentencing). 

Our standard of review of a challenge to the discretionary aspects of 

sentencing is as follows: 

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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal 

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v. 

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)). The trial court has 

discretion in determining whether a hearing is required on the post-sentence 

motions. Pa.R.Crim.P. 720(B)(2)(b). 
J-S51003-16

- 7 -

In the instant case, Appellant properly preserved a challenge to the 

discretionary aspects of sentencing in his post-sentence motion, his Rule 

1925(b) statement, and his Rule 2119(f) statement. To the extent Appellant 

poses a generic claim that the court failed to consider mitigating 

circumstances, the claim does not raise a substantial question as to the 

discretionary aspects of sentencing. See Cruz-Centeno, supra. 

Nevertheless, where Appellant claims the court sentenced him in the 

aggravated range without considering mitigating circumstances, Appellant 

appears to raise a substantial question as to the discretionary aspects of his 

sentence. See Felmlee, supra. 

As an initial matter, the minimum sentences imposed for IDSI and 

rape fell in the aggravated range of the sentencing guidelines; the minimum 

sentence for aggravated assault actually exceeded the aggravated range of 

the sentencing guidelines. Nevertheless, none of the sentences breached 

the respective statutory maximums for the offenses at issue.2 

In Appellant’s post sentence motion he requested modification of his 

overall sentence, based on his remorse and his harsh childhood 

circumstances. On appeal, Appellant adds he should have received some 

mitigation of his sentences, instead of an aggravation of his sentences, 

____________________________________________

2 Each of the three offenses was graded as a first degree felony, with a 

statutory maximum sentence of 20 years. See generally 18 Pa.C.S.A. § 

1103(1). 
J-S51003-16

- 8 -

because his prior offense score was zero. Appellant’s post-sentence motion, 

however, failed to raise any issue implicating his prior record score, so that 

aspect of his claim is waived. 

Moreover, at sentencing, the court announced numerous factors to 

support a departure from the guidelines, including the exceptionally cruel 

nature of the crimes and the extensive and permanent brain damage to 

Victim, which has caused her severe memory loss and left her unable to care 

for her daughter or maintain employment. The court also considered the 

harsh circumstances of Appellant’s childhood and his expression of remorse. 

The court stated the imposition of the statutory maximum sentence for 

aggravated assault was reasonable and necessary, given the nature and 

circumstances of the crime. Appellant’s post-sentence motion failed to raise 

any issues, which went unaddressed at the sentencing hearing. Further, the 

court had the benefit of a PSI report and mental health evaluation, which 

contained Appellant’s childhood circumstances. Thus, we can presume the 

court considered these as relevant mitigating sentencing factors. See 

Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating where 

sentencing court had benefit of PSI, law assumes court was aware of and 

weighed relevant information regarding mitigating factors). Also, the PSI 

report included information Appellant sought to introduce through additional 

character testimony at a subsequent hearing; therefore, a hearing on 

Appellant’s post-sentence motion was unnecessary. Thus, Appellant is not 
J-S51003-16

- 9 -

entitled to relief as to the discretionary aspects of sentencing. Accordingly, 

we affirm.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2016