J-A14001-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

M. K. S.

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2273 EDA 2017

Appeal from the Judgment of Sentence June 16, 2017

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0005745-2016

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

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 05, 2018

Appellant, M.K.S., appeals from the judgment of sentence entered in 

the Bucks County Court of Common Pleas, following his open guilty plea to 

aggravated assault and endangering the welfare of children (“EWOC”).1 We 

affirm.

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history. Therefore, we have no need to restate them. 

We add the court ordered Appellant on August 11, 2017, to file a concise 

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant 

timely complied on August 31, 2017. 

Appellant raises one issue for our review:

DID THE [TRIAL] COURT ERR IN IMPOSING A SENTENCE OF 

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1 18 Pa.C.S.A. §§ 2702(a)(1) and 4304(a)(1), respectively. 
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NOT LESS THAN TEN NOR MORE THAN TWENTY-ONE 

YEARS’ INCARCERATION, THE SAME SENTENCE AS 

[APPELLANT’S] CO-DEFENDANT WIFE, WHEN APPELLANT 

DISTINGUISHED HIMSELF FROM HIS CO-DEFENDANT IN 

THE FOLLOWING WAYS: APPELLANT PLED GUILTY TO 

AGGRAVATED ASSAULT REGARDING ONE VICTIM,

WHEREAS THE CO-DEFENDANT PLED GUILTY REGARDING 

TWO VICTIMS; THE CO-DEFENDANT’S AGGRAVATED 

ASSAULT INVOLVED A COURSE OF CONDUCT WHEREAS 

APPELLANT’S INVOLVED A BRIEF, MOMENTARY INCIDENT; 

APPELLANT HAD COOPERATED WITH THE COMMONWEALTH 

AND AGREED TO TESTIFY AGAINST HIS CO-DEFENDANT; 

AND APPELLANT PROVIDED HIS DRUG ADDICITON 

HISTORY AS A BASIS FOR HIS ACTIONS?

(Appellant’s Brief at 4).2

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 

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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily 

precludes a defendant from contesting the validity of his...sentence other than 

to argue that the sentence is illegal or that the sentencing court did not have 

jurisdiction, open plea agreements are an exception in which a defendant will 

not be precluded from appealing the discretionary aspects of the sentence.” 

Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) 

(emphasis in original). “An ‘open’ plea agreement is one in which there is no 

negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as 

to sentencing, so he can challenge the discretionary aspects of his sentence. 
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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). 

Objections to the discretionary aspects of a sentence are generally waived if 

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

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

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

also Commonwealth v. May, 584 Pa. 640, 887 A.2d 750 (2005), cert. 

denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 54 (2006) (reiterating 

absence of specific and contemporaneous objection waives issue on appeal). 

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 concise statement must indicate “where the sentence falls in 

relation to the sentencing guidelines and what particular provision of the code 

it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) 

(quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000), 

appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). The statement must also 

specify “what fundamental norm the sentence violates and the manner in 

which it violates that norm.” Kiesel, supra at 532. 
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As a prefatory matter, Appellant failed to raise during the sentencing 

hearing any challenge to his sentence. Additionally, Appellant’s 

reconsideration motion does not include his claim that the sentencing court 

failed to consider Appellant’s history of drug addiction. Further, Appellant did 

not meet the minimal requirements of Rule 2119(f). In large part, Appellant’s 

Rule 2119(f) statement is a recitation of authority relevant to a challenge to 

discretionary aspects of sentencing. Appellant’s statement fails to articulate 

what fundamental norm of sentencing the court violated or to indicate how his 

sentence violates that norm. See Kiesel, supra. Rather, Appellant baldly 

and briefly asserts his sentence is manifestly excessive in light of his guilty 

plea and history of drug addiction. Because Appellant failed to include his 

claims in full at sentencing and in his post-sentence motion, and his Rule 

2119(f) statement is inadequate, Appellant has arguably waived his 

challenges to the discretionary aspects of his sentence. See Mann, supra; 

Mouzon, supra. See also Commonwealth v. Cannon, 954 A.2d 1222 

(Pa.Super. 2008) (reiterating inadequate Rule 2119(f) statement constitutes 

failure to raise substantial question as to discretionary aspects of sentence). 

Moreover, even if Appellant had properly preserved his claims, he would 

not be entitled to relief. (See Trial Court Opinion, filed 12/15/17, at 4-9) 

(finding: at sentencing hearing, court stated it considered nature and 

circumstances of Appellant’s and co-defendant’s crimes, as well as history, 

character, and condition of Appellant and co-defendant; court explained it 
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considered Appellant’s background and actions in comparison to codefendant’s background and actions; sentencing court also considered 

Appellant’s history of drug addiction; sentencing court stated it found little 

difference between two co-defendants’ conduct, because both consciously and 

repeatedly chose to engage in behavior that injured their children; Appellant 

admitted at guilty plea hearing that he failed to call for help when codefendant mistreated children over period of time; sentencing court properly 

considered all evidence and sentencing factors under 42 Pa.C.S.A. § 9721(b)

when it sentenced Appellant).3 The record supports the court’s rationale. 

Therefore, even if Appellant had properly preserved his issues, we would 

affirm based on the trial court opinion. See generally In re K.L.S., 594 Pa. 

194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are 

waived on appeal, we should affirm).

Judgment of sentence affirmed. 

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3 To the extent Appellant claims the court failed to consider at sentencing 

Appellant’s agreement to testify against his co-defendant wife, that promise 

was essentially illusory. See 42 Pa.C.S.A. § 5913(2) (stating in part: “[I]n a 

criminal proceeding a person shall have the privilege, which he...may waive, 

not to testify against his...then lawful spouse except that there shall be no 

such privilege: ... (2) in any criminal proceeding against either for bodily injury 

or violence attempted, done or threatened upon the other, or upon the minor 

children of said husband and wife, or the minor children of either of them, or 

any minor child in their care or custody, or in the care or custody of either of 

them...”). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/5/18