J-A03012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW KINEG 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1534 EDA 2022

Appeal from the Judgment of Sentence Entered April 22, 2022

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

No(s): CP-45-CR-0001096-2021

BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 22, 2023

Appellant Matthew Kineg appeals from the judgment of sentence1

entered by the Court of Monroe County after Appellant was convicted of 

numerous charges related to the dissemination, solicitation, and possession 

of child pornography. Appellant challenges the discretionary aspects of his 

sentence. We affirm.

In May 2021, Appellant was charged with one count of dissemination of 

child pornography,2five counts of criminal solicitation – child pornography,3

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* Former Justice specially assigned to the Superior Court.

1 Appellant purports to appeal from the May 5, 2022 order denying his postsentence motion. However, the appeal is properly taken from the judgment of 

sentence entered on April 22, 2022. See Commonwealth v. Chamberlain,

658 A.2d 395, 397 (Pa.Super. 1995) (noting “the order denying post-sentence

motions acts to finalize the judgment of sentence for purposes of appeal. Thus,

the appeal is taken from the judgment of sentence, not the order denying

post-sentence motions”). We have amended the caption accordingly.

2 18 Pa.C.S.A. § 6312(c) (second-degree felony).

3 18 Pa.C.S.A. § 902(a) (second-degree felony).
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159 counts of possession of child pornography,4 and one count of criminal use 

of a communication facility.5

At the time Appellant was charged with the instant offenses, he was on 

parole for his 2018 conviction for possession of child pornography in which he 

was ordered to have no internet access. Notes of Testimony, 4/22/22, 

Sentencing, at 7-8. Appellant acquired the instant charges within two months 

of his release from his previous period of incarceration. Id.

On February 15, 2022, Appellant pled guilty to dissemination of child 

pornography, five counts of criminal solicitation – child pornography, 

possession of child pornography, and criminal use of a communication facility.

The trial court deferred sentencing for the preparation of a pre-sentence 

investigation (PSI) report. There were additional evaluations attached to the 

PSI report, including the sexual offender assessment which indicated 

Appellant was not a sexually violent predator. The PSI report included a 

forensic counseling risk assessment report which determined that Appellant 

exhibited a moderate risk of reoffending. Further, the PSI report included two 

psychiatric reports that concluded that Appellant has a low intellect, citing to

school records that reported Appellant’s IQ score as 56.

On April 22, 2022, after a sentencing hearing, the trial court imposed 

four consecutive sentences: two to four years’ imprisonment for dissemination 

of child pornography, three to six years’ imprisonment on two of the 

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4 18 Pa.C.S.A. § 6312(d) (second-degree felony).

5 18 Pa.C.S.A. § 7512(a) (third-degree felony).
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convictions for solicitation of child pornography, and two to four years’ 

imprisonment on the third solicitation conviction. The trial court imposed 

concurrent sentences for the remaining convictions. Therefore, Appellant

received an aggregate sentence of ten to twenty years’ imprisonment.

On May 2, 2022, Appellant filed a post-sentence motion, which the trial 

court denied on May 6, 2022. Appellant filed a timely appeal on June 3, 2022 

and subsequently complied with the trial court’s direction to submit a concise 

statement of errors complained of an appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issue for our review on appeal:

Was [Appellant’s] sentence unreasonable, manifestly excessive, 

and grossly disproportionate to the circumstances of the case 

when [Appellant] had a minimal criminal record, mild mental 

retardation and Post Traumatic Stress Disorder resulting from his 

victimization in the jail?

Appellant’s Brief, at 6.

Appellant’s sole issue in his appellate brief challenges the trial court’s 

discretion in imposing his sentence without adequately considering certain 

mitigating factors. In reviewing such claims, we are mindful that:

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to an appeal as of right. Prior to reaching the 

merits of a discretionary sentencing issue[, w]e conduct a fourpart 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).
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Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018) 

(quotation marks, some citations, and emphasis omitted). 

It is well-established that in order “[t]o preserve an attack on the 

discretionary aspects of sentence, an appellant must raise his issues at 

sentencing or in a post-sentence motion. Issues not presented to the 

sentencing court are waived and cannot be raised for the first time on appeal.”

Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.Super. 2006) 

(citations omitted). Moreover, “a post-sentence motion only preserves 

challenges to the discretionary aspects of sentencing that are specifically 

included in the post-sentence motion.” Commonwealth v. Williams, 198 

A.3d 1181, 1186–87 (Pa.Super. 2018) (citation omitted) (finding the appellant 

waived his claim that the trial court acted vindictively in imposing consecutive 

sentences as the appellant did not preserve this issue at sentencing or in a 

post-sentence motion).

As noted above, Appellant filed a timely post-sentence motion and 

notice of appeal. However, our review of the record shows that Appellant’s 

post-sentence motion merely states that Appellant “feels the sentence is 

excessive.” Post-sentence motion, 5/2/22, at 1. Beyond this allegation, 

Appellant’s post sentence motion did not explain why he believed his sentence 

was excessive. As such, the trial court entered an order denying Appellant’s

post-sentence motion without any further discussion. Order, 5/5/22, at 1.

Moreover, our review of the sentencing hearing transcript shows that 

neither Appellant nor his counsel argued on the record that the trial court 
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failed to adequately consider mitigating factors in imposing the sentence or 

challenged the sentence in any way.

Thus, Appellant’s specific argument that the trial court did not 

adequately consider certain mitigating factors is waived by Appellant’s failure 

to properly preserve this particular claim at sentencing or in a post-sentence 

motion. See Malovich, supra; Williams, supra; Pa.R.A.P. 302(a). As a 

result, we find the sole argument Appellant preserved for review before the 

trial court was his claim that his sentence was excessive.

We proceed to determine whether Appellant has raised a substantial 

question to meet the fourth requirement of the four-part test outlined above. 

In doing so, we note that:

[w]hen appealing the discretionary aspects of a sentence, an

appellant must also invoke the appellate court's jurisdiction by 

including in his brief a separate concise statement demonstrating 

that there is a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Commonwealth v.

Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617, 621-22 (2002); 

Pa.R.A.P. 2119(f). “The requirement that an appellant separately 

set forth the reasons relied upon for allowance of appeal ‘furthers 

the purpose evident in the Sentencing Code as a whole of limiting 

any challenges to the trial court's evaluation of the multitude of 

factors impinging on the sentencing decision to exceptional

cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112 

(Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 

(2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 

240 (2009) (quoting Commonwealth v. Williams, 386 

Pa.Super. 322, 562 A.2d 1385, 1387 (1989) (en banc) (emphasis 

in original)).

Commonwealth v. Watson, 228 A.3d 928, 935 (Pa.Super. 2020).
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Our Court must evaluate on a case-to-case basis on whether a

sentencing claim raises a substantial question for review. Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa.Super. 2010). “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.” Id. (citations omitted).

In the instant case, Appellant baldly asserts that his sentence is 

excessive. Our Supreme Court has recognized that an appellant may assert a 

claim that his sentence is excessive even when the trial court imposes a 

sentence within the statutory limits. Mouzon, 812 A.2d at 625. However, the 

Supreme Court clarified that “[t]his does not mean ... that the Superior Court 

must accept bald allegations of excessiveness.” Id. at 627. Rather, the 

Supreme Court reiterated that it is 

only where the appellant's Rule 2119(f) statement sufficiently

articulates the manner in which the sentence violates either a

specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the

sentencing process, will such a statement be deemed adequate to

raise a substantial question so as to permit a grant of allowance

of appeal of the discretionary aspects of the sentence.

Id.

In merely alleging that his sentence is excessive, Appellant failed to 

specify which provision of the Sentencing Code was violated, or which aspect 

of his standard-range sentence was contrary to the fundamental norms 

underlying the sentencing scheme. Accordingly, we conclude that Appellant 
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has failed to raise a substantial question and we decline to review his claim 

further.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2023