J. S62034/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

AARON SCOTT JOHNSON, : No. 705 WDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered May 11, 2017,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0003103-2015

BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 2, 2020

Aaron Scott Johnson appeals from the May 11, 2017 judgment of 

sentence entered by the Court of Common Pleas of Allegheny County following 

his conviction of possession of a firearm by a prohibited person, firearms not 

to be carried without a license, tampering with and/or fabricating evidence, 

resisting arrest, and defiant trespass.1 After careful review, we affirm.

The record reflects the following procedural history: The trial court 

convicted appellant of the aforementioned offenses following a stipulated 

bench trial on May 11, 2017. Appellant waived a pre-sentence investigation 

and the trial court immediately sentenced appellant to an aggregate term of 

 

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 4910(1), 5104, and 3503(b)(1)(ii), 

respectively.
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16-32 months’ incarceration, with credit for time served, to be followed by 

5 years’ probation.

Despite being represented by counsel, appellant filed a pro se notice of 

appeal on June 8, 2017. On November 8, 2018, this court remanded for the 

trial court to hold a Grazier2 hearing, while retaining jurisdiction. See 

Commonwealth v. Johnson, No. 924 WDA 2017, unpublished judgment 

order (Pa.Super. filed November 8, 2018). On November 29, 2018, the trial 

court entered an order appointing Brian Sichko, Esq., to represent appellant. 

On December 11, 2018, Attorney Sichko filed a petition for withdrawal of 

appeal with this court. This court discontinued appellant’s appeal in a 

per curiam order entered December 17, 2018.

While the petition for withdrawal of appeal from this court was pending, 

Attorney Sichko filed a petition requesting reinstatement of appellant’s 

post-sentence and direct appellate rights nunc pro tunc pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The trial court 

entered an order granting appellant’s petition on February 1, 2019. On 

February 11, 2019, the trial court granted appellant’s motion for an extension 

of time to file a post-sentence motion nunc pro tunc, providing appellant an 

additional 30 days to file a post-sentence motion.

 

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Despite still being represented by Attorney Sichko, appellant filed a 

pro se post-sentence motion on February 19, 2019.

3 On March 4, 2019, the 

trial court granted Attorney Sichko leave to withdraw as appellant’s counsel 

and appointed Robert S. Carey, Jr., Esq., to represent appellant. In the 

interim, the time period expired for appellant to file a post-sentence motion 

nunc pro tunc. (See trial court order, 2/11/19; Docket No. 66.) Appellant 

filed a petition to reinstate his rights to file a post-sentence motion and a 

direct appeal nunc pro tunc on March 13, 2019, which appears to be filed 

pursuant to the PCRA. On March 25, 2019, the trial court reinstated 

appellant’s direct appellate rights nunc pro tunc and further ordered 

appellant to file a post-sentence motion by April 14, 2019. Appellant timely 

complied, filing a post-sentence motion to modify sentence on April 12, 2019. 

The trial court denied appellant’s post-sentence motion without a hearing on 

April 22, 2019.

Appellant timely filed a notice of appeal on May 8, 2019. The trial court 

did not order appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). On June 19, 2019, the trial court filed 

an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issue for our review:

 

3 Pursuant to the well-settled case law in this Commonwealth prohibiting 

hybrid representation, the trial court did not act on appellant’s pro se

post-sentence motion. See Commonwealth v. Williams, 151 A.3d 621, 623 

(Pa.Super. 2016), citing Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 

2011).
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Whether the [trial c]ourt erred in denying 

[a]ppellant’s post[-]sentence motion without a 

hearing where pursuant to 42 Pa.C.S.A. § 9771 

[a]ppellant’s continued supervision should be 

terminated as multiple factors demonstrate that 

[a]ppellant does not require ongoing supervision and 

the Parole Board’s actions have frustrated the 

well-reasoned sentencing scheme of the sentencing 

court?

Appellant’s brief at 3.

While this appeal is framed as a challenge to appellant’s judgment of 

sentence by way of a denied post-sentence motion, after reviewing the record, 

we find that appellant is actually appealing from a denial of a motion for early 

termination of probation. Indeed, what appellant styled as a post-sentence 

motion requests that the trial court “terminate [appellant’s] continued 

supervision as multiple factors demonstrate that [appellant] does not require 

ongoing supervision and the Parole Board’s actions have frustrated the 

well-reasoned sentencing scheme of [the trial court].” (Appellant’s 

post-sentence motion, 4/12/19 at unnumbered page 2.) 

In his brief, however, appellant forwards an argument pertaining to the 

discretionary aspects of his sentence. Specifically, appellant focuses much of 

his argument on allegations that the trial court violated fundamental 

sentencing norms by improperly focusing on recidivism. (See generally

appellant’s brief at 10-14.) Appellant does not provide any details in his brief 

as to how “the Parole Board’s actions have frustrated the well-reasoned 
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sentencing scheme of [the trial court.]” (See appellant’s post-sentence 

motion, 4/12/19 at unnumbered page 2; appellant’s brief at 3, 10.)

In order to challenge the discretionary aspects of sentence, a defendant 

must, inter alia, properly preserve the issue at sentencing or in a motion to 

reconsider or modify sentence pursuant to Pa.R.Crim.P. 720. 

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

denied, 76 A.3d 538 (Pa. 2013), citing Commonwealth v. Evans, 901 A.2d 

528, 533 (Pa.Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006). Failure 

to do so generally results in waiver. Griffin, 65 A.3d at 935, citing 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal 

denied, 831 A.2d 599 (Pa. 2003).

Here, appellant did not raise any issues pertaining to the discretionary 

aspects of the trial court’s sentence in his post-sentence motion. To the 

contrary, he referred to the trial court’s sentencing scheme as 

“well-reasoned.” (See appellant’s post-sentence motion, 4/12/19 at 

unnumbered page 2.) Accordingly, we find that appellant has waived any 

issues pertaining to the discretionary aspects of his sentence.

To the extent appellant has preserved any issues pertaining to the trial 

court’s denial of his motion to terminate his probation, such an appeal is a 

challenge to the underlying sentence. 

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 
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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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal 

denied, 117 A.3d 297 (Pa. 2015), quoting Commonwealth v. Hoch, 936 

A.2d 515, 517-518 (Pa.Super. 2007) (citation omitted).

The record reflects that the trial court only sentenced appellant on the 

possession of a firearm by a prohibited person conviction. (Notes of 

testimony, 5/11/17 at 40.) The record further reflects that appellant’s prior 

record score was 5 and his possession of a firearm by a prohibited person 

conviction carried an offense gravity score of 10. (Guideline sentence form, 

5/11/17; Docket No. 33.) The sentencing guidelines in effect at the time the 

crimes were committed established a standard sentencing range of a 

minimum of 60-72 months’ incarceration. See 204 Pa.Code § 303.16(a) 

(repealed September 26, 2014).

Here, appellant requested that the trial court impose an abbreviated 

prison sentence with a probationary tail as a means of keeping appellant under 

the trial court’s control. (Notes of testimony, 5/11/17 at 38-39.) The trial 

court granted appellant’s request, imposing a term of incarceration well below 

even the guidelines’ mitigated range, to be followed by a 5-year term of 

probation. (Id. at 40.)
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Based on our review of the record, we can discern no abuse of discretion 

by the trial court. Indeed, the trial court deviated from the sentencing 

guidelines at appellant’s request to provide him with a more lenient term of 

incarceration in exchange for a longer probationary tail. We, therefore, cannot 

conclude that the sentence imposed by the trial court, while deviating from 

the sentencing guidelines, was manifestly unreasonable, nor was the trial 

court’s sentence the result of partiality, prejudice, bias, or ill-will. See Zirkle, 

107 A.3d at 132.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/2/2020