J-S79040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

CHRISTOPHER JOHNSON, :

:

Appellant : No. 549 EDA 2016

Appeal from the Judgment of Sentence January 15, 2016

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): CP-51-CR-0003935-2011; 

CP-51-CR-0003936-2011

BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2016

Christopher Johnson (“Johnson”) appeals from the judgment of 

sentence imposed following his open plea of nolo contendere to two counts 

of assault of a law enforcement officer, and his open guilty plea to two 

counts each of simple assault and recklessly endangering another person, 

and one count each of carrying firearms on public streets of Philadelphia and 

possession of an instrument of crime.1 See 18 Pa.C.S.A. §§ 2702.1(a), 

2701, 2705, 6108, 907(a). We affirm.

The trial court set forth the relevant facts as follows:

On October 21, 2010, Officer Michael Dunbar [(“Officer 

Dunbar”)] and his partner, Officer Shawn McKnight [(“Officer 

McKnight”)], responded to a radio call for burglary in the area of 

3600 Germantown Avenue[,] around 12:18 a.m.[,] in a marked 

police car and in full uniforms. While driving down towards the 

 

1

Johnson was charged on two separate dockets. The trial court accepted his 

pleas and imposed a sentence on both dockets simultaneously. Johnson 

filed the instant appeal from both dockets.
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end of the block, they heard a loud “pop” sound from a parked 

white van that was next to them. Officer Dunbar testified that 

he thought they were being shot at[,] and was shocked. There 

was glass from the white van coming towards their police car. 

The officers pulled over, exited the car, and took cover. They 

then used a flashlight to look up into a third floor window at 

3627 Germantown Avenue and saw several bullet holes through 

the screen of the window. ... [H]ighway patrol officers 

surrounded the area and held the scene. The officers entered 

that property and went up to the third floor[,] where they found 

[Johnson], Aaron Spencer [(“Spencer”)], and Koran White 

[(“White”)] pretending to be asleep. The officers took them out 

for identification. Both [White] and [Spencer] provided a police 

statement indicating that [Johnson] was the one who shot 

outside the window. The officers noted that there was a firearm 

on top of the roof of the adjacent property, which is outside of 

the third floor window. Although [Johnson’s] DNA was excluded, 

the officers recovered the firearm, which was tested as operable. 

Paul Riley, an employee at Clock Bar, was interviewed that night 

and gave a police statement that he heard multiple shots. He 

first heard two shots. Three minutes later, he heard one more 

shot, and five minutes later, he heard one last shot.

On October 25, 2010, [Johnson] called his mother[,] ... while in 

prison[,] and told her that he [thought] [Spencer] and [White] 

“snitched on him.” He told his mother that he would not talk 

about whether or not he shot at the police, but he told her that 

his fingerprints are not on the gun because he “wiped it down.” 

When his mother asked him if anybody else shot at the police, 

[Johnson] responded [] “no, mom, I’m the only one who shot it.” 

He admitted to missing while shooting outside the window[,] and 

that the officers recovered the gun from the roof after he threw 

the firearm outside the window. On another occasion, [Johnson] 

again admitted that he was the person who shot at the police 

and that he wiped the gun thoroughly. On October 26, 2010, 

during another prison call, [Johnson] said that he was not 

shooting at the cop car and that the cop car was nowhere near 

there. Rather, he was shooting out the window for fun. 

[Johnson] testified that he simply “fired at this minivan and 

that’s it” because he “was intoxicated off of Xannies.” However, 

there are trajectory rods that show the path of the bullet that go 

directly down to the parked cars that were parked on the street. 

[Additionally,] [Johnson] does not have a license to carry a 

firearm.
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Trial Court Opinion, 4/11/16, at 2-4 (internal citations omitted).

On September 15, 2015, Johnson entered the above-mentioned pleas. 

The trial court deferred sentencing, and ordered a pre-sentence investigation 

report (“PSI”) and a mental health evaluation. On January 15, 2016, after 

reviewing the PSI, the trial court sentenced Johnson to an aggregate term of 

12-24 years in prison,2followed by 5 years of probation, with credit for time 

served.

On January 25, 2016, Johnson filed a post-sentence Motion 

challenging the discretionary aspects of his sentence, which the trial court 

denied. Johnson subsequently filed a timely Notice of Appeal and a courtordered Pa.R.A.P. 1925(b) Concise Statement.

On appeal, Johnson raises the following questions for our review:

I. Whether there was sufficient evidence to support [Johnson’s] 

conviction for two counts of [a]ssault of [a] [l]aw [e]nforcement 

[o]fficer?

II. Whether the sentence imposed by the trial court was 

manifestly excessive and unreasonable, where the [trial] court 

 

2 Relevant to this appeal, the trial court imposed a prison term of 6 to 12 

years for each count of assault of law enforcement officer, to run 

consecutive to each other. Notably, under the Sentencing Code, assault of a 

law enforcement officer carries a mandatory minimum sentence of 20 years 

in prison. See 42 Pa.C.S.A. § 9719.1; see also 18 Pa.C.S.A. § 2702.1(b) 

(providing that “a person convicted under subsection (a) shall be sentenced 

to a term of imprisonment fixed by the court at not more than 40 years.”). 

However, after Johnson entered his plea of nolo contendere, the 

Commonwealth agreed not to pursue the mandatory minimum sentence. 

See N.T., 9/15/15, at 6, 13.
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imposed consecutive sentences above the applicable guideline 

range, which does not reflect [Johnson’s] rehabilitative needs 

and is greater than that necessary to guarantee the protection of 

the public?

Brief for Appellant at 5 (issues renumbered).

In his first claim, Johnson argues that there was insufficient evidence 

to support his conviction for assault of a law enforcement officer. Id. at 17. 

Johnson asserts that he lacked the mens rea necessary to support his 

conviction because he was “foolishly firing random shots down onto the 

street,” and he was not aware that the police officers were on the street at 

that time. Id. at 19-20. Johnson acknowledges that he shot at the minivan, 

but argues that he “wasn’t trying to shoot anybody.” Id. at 20. 

Additionally, Johnson contends that he started firing shots before the officers 

arrived, which supports his claim that he did not specifically intend to shoot 

the officers. Id.

For purposes of review, a plea of nolo contendere is treated the same 

as a guilty plea. Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa. 

Super. 2002). “By entering a plea of nolo contendere, a defendant waives 

all defects and defenses except those concerning the jurisdiction of the 

court, legality of sentence, and validity of plea.” Commonwealth v. 

Nelson, 666 A.2d 714, 717 (Pa. Super. 1995) (citation omitted).

Accordingly, because Johnson pled nolo contendere, he is precluded 

from presenting any defects or defenses aside from the limited grounds set 
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forth above. See id. Therefore, Johnson’s challenge to the sufficiency of 

the evidence is waived.3 

In his second claim, Johnson asserts that the trial court abused its 

discretion by imposing consecutive sentences for the assault of a law 

enforcement officer charges, above the aggravated guidelines range.4 Brief 

for Appellant at 12. Johnson claims that his sentence is manifestly 

excessive, and that the trial court did not adequately consider his 

rehabilitative needs. Id. at 12, 15. Johnson argues that he “took 

substantial strides toward his rehabilitation” while in prison by completing 

anger management and the “Choosing to Think and Thinking to Choose” 

program, and by completing training in Microsoft Word and Excel. Id. at 16.

Johnson’s second claim challenges the discretionary aspects of his 

sentence. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 

 

3 Moreover, in Johnson’s Written Plea Colloquy, he acknowledged that he can 

appeal only if (1) he “did not know what [he] was doing when [he] pled 

[nolo contendere], or somebody forced [him] to do it—it was not voluntary;” 

(2) he “was in the wrong court—the court did not have jurisdiction over [his] 

case;” or (3) “the sentence the judge gave [him,] was for some reason 

illegal or improper.” Written Plea Colloquy, 9/15/15, at 3. At the plea 

hearing, Johnson also indicated that he reviewed the Written Plea Colloquy 

with his counsel and understood its contents, including accepting the factual 

basis for the plea. See N.T., 9/15/15, at 13-14.

4

Johnson’s prior record score was one. For assault of a law enforcement 

officer, the offense gravity score was 13. The standard range of the 

sentencing guidelines recommends a minimum sentence of 51⁄2 to 7 years. 

See 204 Pa. Code § 303.16(a). 
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2010).5 “It is well-settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal.” Commonwealth v. 

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

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.A. § 9781(b).

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

Here, Johnson filed a timely Notice of Appeal and preserved his issue 

in a post-sentence Motion. Johnson also included a Rule 2119(f) Statement 

in his brief. Accordingly, we will review Johnson’s Rule 2119(f) Statement to 

determine whether he has raised a substantial question.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 

323, 330 (Pa. Super. 2013) (citations omitted). “A substantial question 

exists only when the appellant advances a colorable argument that the 

 

5

Johnson’s plea of nolo contendere does not preclude a challenge to the 

discretionary aspects of his sentence because there was no agreement as to 

the sentence he would receive. See Commonwealth v. Brown, 982 A.2d 

1017, 1019 (Pa. Super. 2009) (stating that an open guilty plea does not 

preclude a challenge to the discretionary aspects of sentencing); see also 

Lewis, supra.
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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. (citations omitted).

Here, Johnson’s appellate brief contains the requisite Rule 2119(f) 

Statement. In that Statement, Johnson presents the following claim upon 

which he relies for allowance of appeal:

[T]he trial court imposed a manifestly excessive sentence, by 

imposing [Johnson’s] sentence for the counts of assault of a law 

enforcement officer consecutive[ly], which is unduly harsh, 

without taking into account [Johnson’s] rehabilitative needs and 

other mitigating factors, including [Johnson’s] expression of 

remorse and acceptance of responsibility at the time of 

sentencing, which violates the fundamental norms of sentencing, 

thereby raising a substantial question for appellate review of 

[Johnson’s] excessive sentence.

Brief for Appellant at 11 (capitalization omitted).

“This Court has [] held that an excessive sentence claim—in 

conjunction with an assertion that the [trial] court failed to consider 

mitigating factors—raises a substantial question.” Commonwealth v. 

Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (citing 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)). 

Additionally,

[i]n determining whether a substantial question exists, this Court 

does not examine the merits of whether the sentence is actually

excessive. Rather, we look to whether the appellant has 

forwarded a plausible argument that the sentence, when it is 

within the guideline ranges, is clearly unreasonable. 

Concomitantly, the substantial question determination does not 

require the court to decide the merits of whether the sentence is 

clearly unreasonable.
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Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). 

Here, Johnson asserts that his aggregate sentence is unduly harsh and 

disproportionate to his conduct, and that the trial court failed to consider 

mitigating factors, including his rehabilitative needs. Brief for Appellant at 

15. Accordingly, we will consider the merits of Johnson’s claim. See 

Caldwell, 117 A.3d at 770; see also Commonwealth v. Bonner, 135 

A.3d 592, 604 (Pa. Super. 2016) (concluding that a claim that appellant’s 

standard range, consecutive sentences were excessive and the trial court 

failed to consider appellant’s rehabilitative needs raised a substantial 

question); Dodge, 77 A.3d at 1273 (finding that “[a]ppellant’s claim that 

the [trial] court disregarded rehabilitation and the nature and circumstances 

of the offense in handing down its sentence presents a substantial question 

for our review.”).

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

sentence is well-settled:

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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007). 
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The Sentencing Code provides that “the [trial] court shall follow the 

general principle that the sentence imposed should call for confinement that 

is consistent with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The trial 

court must also consider the sentencing guidelines. See id.; see also 

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating 

that “[w]hen imposing a sentence, the [trial] court is required to consider 

the sentence ranges set forth in the Sentencing Guidelines....”). Here, the 

sentence imposed for each charge falls within the standard range of the 

sentencing guidelines. See 204 Pa. Code § 303.16(a). Therefore, we may 

only vacate Johnson’s sentence if “the case involves circumstances where 

the application of the guidelines would be clearly unreasonable.” 42 

Pa.C.S.A. § 9781(c)(2); see also Raven, 97 A.3d at 1254.

Initially, we observe that the sentencing court had the benefit of a PSI. 

Trial Court Opinion, 4/11/16, at 6. “Where pre-sentence reports exist, we 

shall continue to presume that the sentencing judge was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors. A pre-sentence 

report constitutes the record and speaks for itself.” Commonwealth v. 

Devers, 546 A.2d 12, 18 (Pa. 1988); see also id. (stating that “[h]aving 
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been fully informed by the pre-sentence report, the sentencing court’s 

discretion should not be disturbed.”).

Further, our review of the record reveals that the trial court considered 

relevant mitigating factors prior to sentencing Johnson. At the sentencing 

hearing, Johnson stated that he did not intend to harm the officers, and that 

he regretted his “reckless” and “immature” actions. See N.T., 1/15/16, at 

30-32. Thereafter, the trial court detailed its sentencing considerations, 

stating the following:

I do understand that you did enter into pleas and you have 

accepted responsibility. I listened to what you said today, I 

listened to what your parents said, but I also listened to the 

officer who was there. I find this extremely, extremely 

disturbing. And again, like I said earlier, it’s just by grace that 

it’s not a homicide. And I am glad that you are remorseful now. 

I’m not exactly sure of everything you’re remorseful for, you 

know, because you did talk about some other things.

N.T., 1/15/16, at 32-33. The trial court also reviewed Johnson’s record, 

which includes several juvenile adjudications, as well as nine arrests, six 

convictions and four supervision violations as an adult. See Trial Court 

Opinion, 4/11/16, at 7. The trial court concluded that, “[d]ue to the 

reprehensible and violent nature of the charges, the offense gravity score of 

the charges, and [Johnson’s] previous violations of supervision,” the 

sentence is necessary “to protect the public and the officers who are 

carrying out their duties.” Id. Moreover, the trial court considered the 

mental health report and police report. See id. at 6. Based upon this 

evidence, the trial court imposed consecutive standard range sentences for 
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each of Johnson’s assault of a law enforcement officer charges.6 Discerning 

no abuse of discretion by the trial court, we will not disrupt Johnson’s 

sentence on appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016

 

6 The consecutive nature of Johnson’s sentences, without more, does not 

necessitate the conclusion that Johnson’s sentence is manifestly excessive. 

See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (stating 

that “[g]enerally, 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.”) (citation 

omitted); see also Mastromarino, 2 A.3d at 589 (stating that appellant 

was not entitled to a “volume discount” for multiple crimes).