J-S46004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KHYLIL HODGE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2156 EDA 2019

Appeal from the Judgment of Sentence Entered June 24, 2019

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

No(s): CP-51-CR-1101541-2004

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 03, 2021

Appellant, Khylil Hodge, appeals from the judgment of sentence of 21⁄2 

to 5 years’ incarceration, imposed after the court revoked the term of 

probation that Appellant was serving for his conviction of possession with 

intent to deliver (PWID). Appellant solely challenges the discretionary aspects 

of his revocation sentence. After careful review, we affirm.

The facts of Appellant’s underlying PWID conviction are not necessary 

to our disposition of his appeal. In regard to the lengthy procedural history 

of this case, we only briefly note that Appellant pled guilty to PWID in 2005

and, over the following 12 years, he repeatedly violated his probation and was 

resentenced for that offense.1 On December 11, 2017, he committed a fourth 

violation, which once again resulted in the revocation of his probation. On 

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1 The trial court provided a detailed discussion of the procedural history of 

Appellant’s case in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion 

(TCO), 2/28/20, at 1-5.
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June 24, 2019, the trial court resentenced Appellant to 21⁄2 to 5 years’ 

incarceration. 

Appellant filed a timely, post-sentence motion on June 28, 2019. 

However, before the court ruled on that motion, Appellant filed a timely notice 

of appeal on July 24, 2019.

2

 The court thereafter ordered Appellant to file a 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and 

he timely complied. The court then issued its Rule 1925(a) opinion on 

February 28, 2020.

Herein, Appellant states one issue for our review:

Did not the [trial] court violate the tenets of the Sentencing Code, 

which mandate individualized sentencing, where the court did not 

state adequate grounds for imposing its sentence, failed to 

consider [A]ppellant’s background, character or rehabilitative 

needs, and imposed an excessive sentence of 21⁄2 to 5 years of 

incarceration, which was in excess of what was necessary to 

address the gravity of the offense, the protection of the 

community[,] and [A]ppellant’s rehabilitative needs?

Appellant’s Brief at 3.

Appellant’s issue implicates the discretionary aspects of his sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. Commonwealth v. 

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant 

challenging the discretionary aspects of his sentence must invoke 

this Court’s jurisdiction by satisfying a four-part test:

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2 Pursuant to Pennsylvania Rule of Criminal Procedure 708, a motion to modify 

a sentence imposed after the revocation of probation “will not toll the 30-day 

appeal period.” Pa.R.Crim.P. 708(E). Therefore, even though Appellant’s 

post-sentence motion had not been ruled on by the trial court, he properly 

filed his notice of appeal within 30 days of his sentencing.
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We conduct a four-part analysis to determine: (1) whether 

[the] 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 [the] 

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.[] § 9781(b).

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

appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to 

the discretionary aspects of a sentence are generally waived if 

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

modify the sentence imposed. Commonwealth v. Mann, 820 

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

A.2d 599 (2003).

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. Commonwealth v. Paul,

925 A.2d 825, 828 (Pa. Super. 2007). 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.

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

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

Here, Appellant filed a timely notice of appeal, and he preserved his 

above-stated issue in his post-sentence motion. He has also set forth a Rule 

2119(f) statement in his appellate brief. Therein, Appellant claims that the 

court’s sentence of 21⁄2 to 5 years’ incarceration is excessive in light of the fact 

he committed only “minor indiscretions.” Appellant’s Brief at 14. He also 

argues that the court “failed to conduct any individualized sentencing and 

failed to consider the factors as set forth in 42 Pa.C.S.[] § 9721(b), namely, 
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the protection of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and the community, and the rehabilitative 

needs of [Appellant].” Id. at 13. We conclude that Appellant has raised a 

substantial question for our review. See Commonwealth v. Derry, 150 A.3d 

987, 995 (Pa. Super. 2016) (holding that a claim that the violation-ofprobation court failed to consider the section 9721(b) factors presents a 

substantial question for our review); id. (finding that a claim that 

“a sentence is manifestly excessive such that it constitutes too severe a 

punishment raises a substantial question”) (citation omitted).

In reviewing the merits of Appellant’s sentencing challenge, we are 

mindful that,

[s]entencing 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

In assessing Appellant’s sentencing challenge, we have reviewed his 

brief, the Commonwealth’s response, the certified record, and the applicable 

case law. We have also examined the Rule 1925(a) opinion authored by the 

Honorable Genece E. Brinkley of the Court of Common Pleas of Philadelphia 

County. We conclude that Judge Brinkley’s decision appropriately addresses 
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the arguments Appellant presents herein.3 Accordingly, we adopt Judge 

Brinkley’s opinion as our own, and affirm Appellant’s judgment of sentence for 

the reasons set forth therein.

Judgment of sentence affirmed. 

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3 We recognize that Judge Brinkley’s opinion does not address Appellant’s 

argument that she erred by considering, in fashioning his current sentence,

the fact that he failed to appear for his initial sentencing hearing on February 

26, 2018. According to Appellant, he was found in contempt of court for that 

failure to appear, and he was sentenced “to 2 months and 29 days[,] to 5 

months and 29 days of incarceration.” Appellant’s Brief at 20. He insists that,

because he was punished for his contempt of court, Judge Brinkley’s taking 

his failure to appear into account in imposing his current sentence constituted 

a second punishment for that conduct, thereby violating his “double jeopardy 

protections....” Id. at 21. Notably, Appellant did not raise this claim in his 

post-sentence motion, or in his Rule 1925(b) statement, which resulted in 

Judge Brinkley’s not addressing it in her opinion. However, our Supreme Court 

has held that a defendant’s assertion that he was punished twice for the same 

offense “implicates the legality of a sentence, rendering the issue nonwaivable.” Commonwealth v. Hill, 238 A.3d 399, 409 (Pa. 2020). 

Nevertheless, Appellant’s claim is meritless. Appellant did not receive a 

second punishment for his contempt finding; instead, Judge Brinkley merely 

considered his failure to appear for his sentencing hearing — which she had 

continued to February 26, 2018, so he could present documentation of his 

employment and GED classes — as proof of his inability and/or unwillingness 

to rehabilitate. See TCO at 8 (“Instead of using this chance to show his 

progress, [Appellant] failed to appear. When he finally did appear for 

sentencing more than a year later, he had done nothing he was supposed to 

do.”). We discern no illegality, or abuse of discretion, in Judge Brinkley’s 

considering Appellant’s failing to appear for his original sentencing hearing in 

assessing his amenability to rehabilitation. See Commonwealth v. Griffin, 

804 A.2d 1, 10 (Pa. Super. 2002) (noting that a sentencing court is required 

“to consider the prior criminal record to ascertain a defendant’s amenability 

to rehabilitation”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/3/2021
Circulated 02/19/2021 12:07 PM