J-S31040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEROME JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3120 EDA 2022

Appeal from the Judgment of Sentence Entered July 11, 2022

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

No(s): CP-51-CR-0000789-2021

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 27, 2023

Jerome Johnson appeals from the judgment of sentence entered on his 

convictions for burglary, criminal trespass, indecent assault-forcible 

compulsion, and indecent assault-without consent of other.

1 He challenges the 

discretionary aspects of his sentence. We affirm.

At Johnson’s bench trial, the victim, Q.S., testified that one night in 

January 2021, she was asleep on her mother’s couch, and her 11-year-old 

sister was lying on the floor. N.T., Apr. 22, 2022, at 13-15. Q.S. said she felt 

Johnson touching her chest area, which woke her up. Id. at 15. Once awake, 

Q.S. stood up, got into a “tussle” with Johnson, and ran out the door. Id. at 

16. She screamed for help, and her sister came to the front door and threw a 

grill fork at Johnson. Id. at 16-17. Johnson, who lives five doors away from 

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1 18 Pa.C.S.A. §§ 3502(a)(1), 3503(a)(1), 3126(a)(2), and 3126(a)(1), 

respectively.
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Q.S.’s mother’s house, ran down the street. Id. at 16-17. Q.S. testified that 

Johnson was naked during the encounter. Id. at 16. She said she and Johnson 

had never spoken before, she did not give her consent for Johnson to touch 

her, and she did not give permission for him to enter the house. Id. at 18-19.

Q.S.’s sister, M.D, testified that on the night of the incident, she heard 

someone come in the house, and thought it was her nephew. Id. at 37. She 

then heard her sister scream, and saw Johnson touching her sister’s chest. 

Id. at 38. Johnson testified in his own defense, and denied that he was in the 

house on the night in question. He also denied touching Q.S. Id. at 60-61.

The trial court found Johnson guilty of burglary, criminal trespass, and 

two counts of indecent assault. 

At sentencing, the parties agreed that Johnson’s prior record score was 

a repeat felon, the offense gravity score was a 10, and the sentencing 

guideline range was 72 to 84 months’ incarceration for the burglary conviction, 

plus or minus 12 months. N.T., July 11, 2022, at 4. Johnson’s counsel 

informed the trial court that Johnson had had a troubled childhood and 

adulthood, suffered from anger issues that stemmed from trauma in his 

childhood, including the rape of his mother by an ex-boyfriend. Id. at 4. 

Counsel stated that Johnson witnessed violence in his family, lived in a house 

that had been firebombed, and had been shot. Id. at 5. Counsel further stated 

Johnson suffered from diabetes and abused PCP “heavily,” using six or seven 

bundles in a weekend. Id. at 5-6.
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The Commonwealth read a letter from the victim regarding the lifechanging impact the incident had had on her, including that she is afraid to be 

alone in the house. Id. at 8. It asked for a guideline sentence of total 

confinement with “a significant period of supervision following that,” and 

asked that the sex offender probation unit supervise Johnson. Id. at 9.

Johnson refused to sign the notice of registration requirements for Tier 

II SORNA offenders. Id. at 14. When the court informed him that he had to 

abide to the terms when released regardless whether he signed, Johnson 

stated, “Well, then I’ll be brought up on new charges. I did not do this. I’m 

not signing that. I’m not signing that.” Id. at 15.

During his allocution, Johnson repeatedly denied the conduct underlying 

the convictions and made threatening comments, including, “You can give me 

all the time that you want. I will not die in jail. I refuse to die in jail until I get 

out and get my revenge. You think I’m playing. I’m dead serious.” Id. at 21.

After he finished, he left the courtroom without permission. Id. at 24. 

The trial court noted on the record that during his allocution, Johnson 

had yelled and stared down defense counsel and the trial court. It stated the 

sentence it imposed was based on the threats made, Johnson’s demeanor at 

sentencing, and Johnson’s PCP use and prior record:

At this point, [Johnson] has gotten up and exited the 

courtroom without the authority of this Court.

I want to place on the record some of the things that are 

not translated well onto the full record, in particular Mr. 

Johnson’s demeanor as he continued to stare down [defense 

counsel] and this Court. He has been yelling since he began 
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speaking. This Court has been trying to exercise as much 

patience as possible to ensure that Mr. Johnson has his right 

to be heard.

That being said, given the fact that I now have four sheriffs 

who have come to my room due to the security risk that Mr. 

Johnson is currently posing as he looked as though he may,

frankly, attack [defense counsel], I am going to pronounce 

this sentence without him being present.

I will, however, ask, [defense counsel], for you to submit in 

writing to him his appellate rights. We will give them to him, 

and we will give him a written copy of his SORNA 

registration requirements.

On the burglary, a felony of the first degree, I do sentence 

him to 10 to 20 years of incarceration. A consecutive period 

on the indecent assault as an M1, 2-and-a-half to 5. No 

further penalty on the criminal trespass or the indecent 

assault as an M2.

This is to be consecutive to the sentence that he is serving 

with Judge Schultz, which would be -- and, Counsel, please 

correct me if I’m wrong -- CP-51-CR-291-2020.

Any credit that he may have on this case is to be given. This 

sentence is above the guidelines, and I’ll start out by saying 

that.

Particularly, in fashioning this sentence here today, given 

the threats that Mr. Johnson made on this record to seek 

revenge; the obvious, not just anger, but threating tone he 

took to the complaining witness in this particular case, given 

that coupled with Mr. Johnson’s history, I don’t see another 

way for this Court to ensure the safety of this complainant 

given Mr. Johnson’s outburst here in court.

The fact that he felt comfortable to say those things in open 

court in front of a judge as well as multiple law enforcement 

officers, and the tone that he took here today, as well as the 

sustained PCP use that was described in the presentence 

investigation and in defense counsel’s argument to this 

Court.

All of these are seen as aggravating factors for this 

particular sentence, as well as the nature of the crime, the 
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fact that these were very young women in this house, the 

fact that Mr. Johnson was naked in that home, touching the 

complainant without permission while her younger sister 

was also present.

All of those factors are taken into account by this Court in 

sentencing above the guidelines and aggravating the 

sentence on Mr. Johnson, as well as this Court’s decision to 

make that sentence consecutive to the one that he is 

currently serving.

The aggregate sentence here today will be 12-and-a-half to 

25 years of state incarceration.

Additionally, in terms of parole, this Court is ordering that 

Mr. Johnson complete therapeutic community, as well as 

treatment for PTSD, drug and alcohol treatment. He is to 

stay away from the complainant during the duration of his 

sentence.

Additionally, he is subject to all sex offender conditions. All 

supervision will be done by the state sex offender unit.

Id. at 24-27.

Johnson filed a motion to reconsider the sentence, arguing the sentence 

was above the recommended guidelines and excessive. The motion was 

denied by operation of law.

2 Johnson filed a timely notice of appeal.3

Johnson raises the following issue:

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2 Defense counsel filed a motion to reconsider “in an abundance of caution,” 

but advised the defendant he would be seeking to withdraw as counsel due to 

the conduct at the sentencing hearing. Letter from W. Chris Montoya to 

Jerome Johnson, dated July 12, 2022. The court denied the post-sentence 

motion by operation of law and, in November 2022, counsel filed a motion to 

withdraw. The court granted the motion and appointed new appellate counsel. 

Order, dated Nov. 18, 2022.

33 The trial judge was no longer sitting on the court of common pleas at the 

time of the appeal and therefore there is no trial court opinion pursuant to 

Rule 1925(a).
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A. Did the lower court abuse its discretion by imposing an 

unreasonable and manifestly excessive sentence that failed 

to adhere to the general sentencing principles outlined in 42 

Pa.C.S.A. § 9721(b), in that the Court imposed a sentence 

that exceeded what was necessary to protect the public and 

the community, failed to consider the Appellant’s 

background and character fully and imposed a sentence that 

was well beyond what was necessary to foster the 

rehabilitative needs of Appellant?

Johnson’s Br. at 4.

Johnson claims the court “abused its discretion when it imposed a 

manifestly excessive aggregate sentence” of 121⁄2 to 25 years’ incarceration.

Johnson’s Br. at 6. He argues the sentence was above the aggravated range 

of the guidelines and claims the court “based its sentence entirely on perceived 

safety concerns without considering the other section 9721(b) factors.” Id.

Johnson claims the court did not impose an individualized sentence and the 

circumstances did not necessitate the sentence imposed. Rather, he contends 

that the “court unfairly focused on . . . Johnson’s physical expression of his 

innocence through his body language and tone while exercising his right of 

allocution.” Id. at 12. He claims he never threatened anyone and maintains 

an “emotional expression of innocence should not have been the basis of 

imposing a sentence outside of the guidelines.” Id. He acknowledges that the 

court stated it had reviewed the pre-sentence report, but alleges the court 

erred because it did not refer to how the report helped the court fashion the 

sentence. He concludes that the record did not suggest Johnson was past 

redemption and “there was no justified reason for the . . . court to sentence 

him to such a long term of imprisonment.” Id. at 13.
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There is no absolute right to appeal the discretionary aspects of a 

sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 

2013) (en banc). Rather, before addressing a challenge to discretionary 

aspects of sentence, this Court must determine whether the appellant: (1) 

filed a timely notice of appeal; (2) properly preserved the issue at sentencing 

or in a motion to reconsider or modify the sentence; (3) included in the 

appellate brief a concise statement of the reasons relied upon for appeal; and 

(4) has asserted a substantial question that the sentence is not appropriate 

under the Sentencing Code. See Commonwealth v. Austin, 66 A.3d 798, 

808 (Pa.Super. 2013); 42 Pa.C.S.A. § 9781(b). “[I]f the appeal satisfies each 

of these four requirements, we will then proceed to decide the substantive 

merits of the case.” Austin, 66 A.3d at 808 (citation omitted).

Here, Johnson filed a timely notice of appeal, preserved his issues in a 

post-sentence motion, and included in his brief a concise statement of reasons 

relied upon on appeal. Further, his claims—that the court failed to state 

sufficient reasons for the above-the-guidelines sentence and imposed an 

excessive sentence without considering all relevant sentencing criteria—raise 

substantial questions. Commonwealth v. Holiday, 954 A.2d 6, 10 

(Pa.Super. 2008) (stating that “[a] claim that the sentencing court imposed a 

sentence outside of the guidelines without specifying sufficient reasons 

presents a substantial question for our review.”); See Commonwealth v. 

Snyder, 289 A.3d 1121, 1126 (Pa.Super. 2023) (defendant raised substantial 
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question when claimed court disregarded rehabilitative potential and sentence 

her to manifestly excessive sentence).

“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.” Snyder, 289 A.3d at 1126 (citation omitted). “An abuse of 

discretion occurs where ‘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.’” Id. (citation omitted). When

imposing a sentence, the court must consider “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).

“Where the court has the benefit of a PSI report, we presume the court 

was aware of all appropriate sentencing factors and considerations and 

consider the requirement that the court place its reasoning on the record to 

be satisfied.” Snyder, 289 A.3d at 1126 (citation omitted). On appeal, “we 

may not reweigh the sentencing factors and impose our own judgment in place 

of that of the trial court.” Id. at 1126-27.

Further, “the [s]entencing [g]uidelines are purely advisory in nature.” 

Id. at 1127 (citation omitted) (alteration in original). If a sentencing court 

deviates from the Sentencing Guidelines, it must place on the record its 

reasons for the deviation:
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the sentencing court may deviate from the guidelines, if 

necessary, to fashion a sentence which takes into account 

the protection of the public, the rehabilitative needs of the 

defendant, and the gravity of the particular offense as it 

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

community, so long as it also states of record the factual 

basis and specific reasons which compelled it to deviate 

from the guideline range.

Id. (quoting Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa.Super. 

2012)).

Here, the trial court did not abuse its discretion. It did impose an abovethe-guideline sentence for the burglary conviction. In so doing, however, it 

stated adequate reasons for the deviation. It noted, among other things, that 

Johnson threatened the victim and “stared down” his counsel and the court. 

The court also noted Johnson’s prior history and his PCP use. Furthermore, 

contrary to Johnson’s contention, the court considered the pre-sentence 

report and other sentencing factors, including his potential for rehabilitation, 

when imposing the sentence, which was not excessive. This claim is meritless. 

Judgment of sentence affirmed.

Date: 12/27/2023