J-S78012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TRACY KENNEDY,

Appellant No. 1918 WDA 2015

Appeal from the Judgment of Sentence Entered October 21, 2015

In the Court of Common Pleas of Greene County

Criminal Division at No(s): CP-30-CR-0000455-2013

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 7, 2016

Appellant, Tracy Kennedy, appeals from the judgment of sentence of 8 

to 16 years’ incarceration, imposed after a jury convicted her of committing 

sexual offenses against a minor, including indecent assault, statutory sexual 

assault, and involuntary deviate sexual intercourse. Appellant raises one 

issue challenging the discretionary aspects of her sentence. We affirm.

The facts underlying Appellant’s conviction are not necessary to our 

disposition of her appeal. On October 21, 2015, the court imposed the 

above-stated, aggregate sentence for her crimes. Notably, Appellant did not 

file any post-sentence motions. Instead, she filed a timely notice of appeal, 

and also timely complied with the trial court’s order to file a Pa.R.A.P. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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1925(b) concise statement of errors complained of on appeal. Herein, 

Appellant raises one issue for our review: 

I. Did the [c]ourt commit reversible error when it sentenced 

[Appellant] to 8 to 16 years of incarceration, [where] although 

she had a prior criminal record, there was no basis in fact that 

merited such a sentence, [it] was considerably more harsh than 

the plea offer from the District Attorney, and though within the 

standard range of [the sentencing] guidelines, [it] is clearly 

unreasonable[?]

Appellant’s Brief at 3.

Appellant is challenging the discretionary aspects of her 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:

We 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). 

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).

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

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
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Appellant has failed to satisfy two prongs of the test for invoking this 

Court’s jurisdiction to review her sentencing claim. First, she did not raise 

any challenge to her sentence at the October 21, 2015 sentencing 

proceeding, and she also failed to file a post-sentence motion presenting 

that claim to the trial court. Therefore, her challenge to the discretionary 

aspects of her sentence is waived. See Griffin, supra.

Additionally, Appellant has not included a Rule 2119(f) statement in 

her appellate brief, and the Commonwealth has objected to that omission. 

See Commonwealth’s Brief at 5. Consequently, her discretionary-aspectsof-sentencing claim is waived on this basis, as well. See Commonwealth 

v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (“[I]f the appellant 

fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth objects, the 

issue is waived for purposes of review.”) (citations omitted).

In any event, even if Appellant had properly preserved her claim (and 

we found that she had presented a substantial question for our review), we 

would not conclude that the trial court abused its discretion in fashioning her 

sentence. The court had the benefit of a pre-sentence report and ultimately 

imposed a standard-range term of incarceration. 

As we indicated in Commonwealth v. Moury, 992 A.2d 162, 

171 (Pa. Super. 2010), where the sentencing court imposed a 

standard-range sentence with the benefit of a pre-sentence 

report, we will not consider the sentence excessive. In those 

circumstances, we can assume the sentencing court “was aware 

of relevant information regarding the defendant’s character and 

weighed those considerations along with mitigating statutory 

factors.” Commonwealth v. Devers, 519 Pa. 88,546 A.2d 12, 

18 (1988); see also Commonwealth v. Tirado, 870 A.2d 362, 
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368 (Pa.Super.2005) (if sentencing court has benefit of presentence investigation, law expects court was aware of relevant 

information regarding defendant's character and weighed those 

considerations along with any mitigating factors). Moreover, we 

can reverse a standard-range sentence only if the sentence is 

clearly unreasonable when viewed in light of the four statutory 

factors outlined in 42 Pa.C.S. § 9781(d). Commonwealth v. 

Walls, 592 Pa. 557, 926 A.2d 957, 963–964 (2007); see also 

Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009). 

Section 9781(d) provides that when we review this type of 

question, we have regard for:

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

Walls, supra at 963. Furthermore, “rejection of a sentencing

court's imposition of sentence on unreasonableness grounds 

[should] occur infrequently, whether the sentence is above or 

below the guidelines ranges.” Macias, supra at 777 (quoting 

Walls, supra at 964).

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citations 

omitted). 

The thrust of Appellant’s argument is that her sentence is ‘clearly 

unreasonable’ because her conduct throughout trial, and her statements at 

the sentencing hearing, demonstrate that she has mental health issues that 

require treatment in “a therapeutic setting,” rather than in a state 

correctional institution. Appellant’s Brief at 10. However, Appellant did not 

present any evidence at the sentencing hearing to establish that she has 

been diagnosed with mental health issues, aside from her own testimony 
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that she is on various medications. As Appellant acknowledges, her “trial 

counsel [did not] help to elucidate[,] to any great degree[,] what the 

medications are for and their side effects.” Id. at 9. Because Appellant did 

not fully explain, or present evidence to support, her claim that she has 

mental health issues warranting ‘therapeutic treatment’ rather than a 

sentence of incarceration, she cannot now challenge her sentence on this 

basis. Accordingly, even had Appellant properly preserved her discretionary 

aspects of sentencing issue, her argument would fail to convince us that the 

trial court abused its discretion in imposing a standard-range sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2016