J-S74044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NASEER JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2410 EDA 2018

Appeal from the Judgment of Sentence Entered June 21, 2018

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0000776-2016

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: Filed: April 30, 2021

Appellant, Naseer Johnson, appeals from the judgment of sentence of 

13 to 38 years’ incarceration entered in the Court of Common Pleas of 

Montgomery County after he pleaded guilty to one count each of Rape, 

Aggravated Assault, and Aggravated Indecent Assault.

1

 Herein, he challenges

his lifetime registration as a Sexually Violent Predator (“SVP”) under the 

Sexual Offenders Registration and Notification Act (“SORNA II”), Subchapter 

H, 42 Pa.C.S.A. §§ 9799.10-42, the discretionary aspects of his standard

range guideline sentence, and the imposition of costs at sentencing. After 

careful review, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 PA.C.S.A. §§ 3121(a)(1), 2702(a)(1), and 3125(a)(2), respectively.
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The Affidavit of Probable Cause included within the Police Criminal 

Complaint filed in the present matter supplied the facts to which Appellant 

stipulated to at the time of his guilty plea and sentencing. Specifically, the 

Affidavit alleged the following:

On December 23, 2015 at 5:01 p.m., the Upper Dublin 

Township Police Department was dispatched to "The Villa," located 

at 701 Bethlehem Pike in the Ambler section of Upper Dublin 

Township, for a completed sexual assault. The victim in this 

investigation . . . has been employed as a clinical intern at "The 

Villa" since August 31, 2015. [She] reported to Upper Dublin 

Police Officers at the scene that she was forcefully raped by a 

resident of "The Villa" named Naseer Johnson (date of birth 

11/08/1997).

[The victim] reported that she was strangled by Naseer 

Johnson to the point that she lost control of her bladder and 

urinated on the cafeteria floor[, a report corroborated by a 

discovery of a puddle of urine at the location]. [She reported]

that the sexual assault occurred in the cafeteria of "The Villa" 

following a counseling session she had with Naseer Johnson.

[She] was transported to Abington Memorial Hospital by 

Ambler Ambulance at 5:25 p.m., where she was interviewed and 

examined by Karen Dougherty, a Sexual Assault Nurse Examiner.

Nurse Dougherty's examination revealed that [she] displayed 

tenderness and pain to her head, mouth and jaw, and upper 

extremities as well as erythema on her cervix consistent with 

recent sexual intercourse.

[A] formal, written statement [was taken from the victim] 

following her examination by Nurse Dougherty. [The victim]

reported that she is currently employed as a clinical intern at "The 

Villa" and has been so employed since August 31, 2015. She 

reported that on December 23, 2015, she went to St. Dominick’s, 

a housing unit on the grounds of "The Villa", to meet a resident 

for a counseling session. [She] reported that the resident she was 

supposed to counsel was sleeping, so she asked the residential

counselor if any of his residents wanted to talk.
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[The victim] reported that while she was speaking with the 

residential counselor, Naseer Johnson was present and was asked 

by the residential counselor if he wanted to speak with [the 

victim]. [The victim] reported that Naseer Johnson said he felt 

like talking and she took him to her office for a counseling session.

[The victim] reported that prior to the evening of December 

23, 2015, she never counseled or spoke to Naseer Johnson. [She]

reported that the counseling session with Naseer Johnson lasted 

approximately thirty minutes and was atypical from counseling 

sessions she has had with other residents of "The Villa.” [She]

reported that the session began normally in that Naseer Johnson 

was telling her about his life and why he couldn't go home for 

Christmas, but quickly changed when Johnson began asking [her]

questions about her internship and personal questions such as 

where she attended school.

[The victim] reported that when she completed the 

counseling session with Naseer Johnson, they left her office and 

he asked if he could see Carol, an employee at "The Villa", because 

she had his Christmas gifts. [The victim] reported that she and 

Naseer Johnson then walked to Carol's office but she was not 

there. [The victim] reported that Naseer Johnson then kept 

asking her if anyone was in the building to which she replied, "I 

guess not."

[The victim] reported that Naseer Johnson then asked her if 

he could go to the bathroom, to which [she replied] that he could 

use the bathroom back at his unit [instead]. [She] reported that 

Naseer Johnson then walked to the bathroom and tried opening 

the door, but it was locked. At this point, [ ] she told Naseer 

Johnson that she had to walk him back to his unit, and she began 

walking with him toward one of the stairwells.

 

[The victim] reported that Naseer Johnson directed her 

toward another stairwell, stating that the flight of stairs was a 

quicker way back to his unit. [She] reported that as she began to 

walk up the stairs, Naseer Johnson pulled her off of the stairs by 

grabbing onto the hood of her jacket and strangling her neck while 

standing behind her.

[The victim] reported that after Johnson pulled her off the 

stairs, he began striking her repeatedly to the back of her head. 

[She] made several attempts to strike, pull away, and run from 
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Naseer Johnson, but she was unable to escape his grasp as he 

grabbed her and repeatedly banged her head against the cafeteria 

wall. [The victim] reported that Naseer Johnson then took her to 

the ground forcefully and pulled her pants and underwear down 

to her ankles. [She] reported that Naseer Johnson, now on top of 

her, began strangling her and said, "If you scream, I'm going to 

kill you".

[The victim] reported that while Naseer Johnson strangled 

her she urinated on the cafeteria floor. [She] reported that after 

Naseer Johnson threatened to kill her she stopped resisting. [She]

reported that she stopped resisting because she feared that 

Naseer Johnson would kill her.

[The victim] reported that Johnson proceeded to take his 

pants down and forcefully inserted his penis inside of [her] vagina. 

[She] reported that during the sexual assault, Naseer Johnson 

lifted her shirt and bra and kissed her breasts and mouth. [She]

reported that when she tried to move her head or arms during the 

sexual assault, Naseer Johnson forcefully pinned her arms to the 

cafeteria floor.

[The victim] reported that Naseer Johnson forcefully 

penetrated her vagina with his penis for approximately fifteen to 

twenty minutes. [She] reported that Naseer Johnson may have

ejaculated inside of her vagina. [She] reported that following the 

rape, she asked Naseer Johnson if he trusted her, [in an attempt 

to save her own life], because she didn't know if he was going to 

kill her after he raped her. [She] reported that at no time prior to 

or during the previously described sexual assault did she consent 

to sexual activity of any kind with Naseer Johnson.

Following [the] interview with [the victim], [investigating 

officers] interviewed and took a formal written statement from 

Naseer Johnson at the Upper Dublin Township Police Department. 

Prior to this interview and formal statement, Naseer Johnson was 

read and explained his Constitutional Rights as they are written 

on the Upper Dublin Township Police Department Constitutional 

Rights form. Naseer Johnson waived his Constitutional Rights and 

provided us with a formal written statement.

Naseer Johnson's statement corroborated [the victim’s]

statement. Naseer Johnson admitted he strangled, repeatedly 

grabbed, struck, and banged the victim's head onto the cafeteria 
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floor. Naseer Johnson reported that he forcefully stuck his penis 

inside of [the victim’s] vagina knowing that he did not have 

consent to do so. Naseer Johnson reported that prior to him 

raping [the victim], he strangled her and said, "If you scream, I'm

going to kill you."

Affidavit of Probable Cause, 12/24/2015, at 1-3.

On August 3, 2016, Appellant pleaded guilty to the above-mentioned 

charges, as well as to simple assault in an unrelated case.2 At Appellant’s

June 21, 2018, sentencing hearing, the court considered the defense 

argument for leniency, which centered on Appellant’s history as a two yearold victim of sexual abuse, his removal from the family home and placement 

in various foster homes over many years, and the alleged deprivation of love, 

guidance, and support that flowed from the absence of a “true family” in his 

life. N.T. at 23. 

Also offered was a more specific account of Appellant’s mental health 

history that included a childhood diagnosis of bipolar disorder, anger issues, 

and depression. Id. Though he received treatment for these conditions, the 

defense argued that Appellant’s illicit drug and alcohol abuse starting at age 

11 undermined the efficacy of the treatment and contributed to his suicide 

attempt at the age of 13. Id. 

____________________________________________

2 At the same hearings, Appellant also entered an open guilty plea and 

received sentence, respectively, in a separate case docketed with the lower 

court at 2307-16 involving one count of simple assault stemming from his 

unrelated attack against a different female victim in the women’s bathroom in 

a public library. His appeal from the judgment of sentence entered in that 

companion case is presently docketed at No. 522 EDA 2019, wherein he 

advances a challenge to the imposition of costs at sentencing identical to the 

third issue he raises in the case sub judice. 
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From that time, counsel maintained, Appellant continued to abuse 

alcohol, which, combined with his mental illness, had created multiple 

behavioral issues that prevented him from completing high school. Counsel 

maintained it was this history that led to the offense Appellant committed in 

the present matter. N.T. at 24.

At the outset of the court’s sentencing remarks, it recognized both 

Appellant’s pre-sentencing allocution and his acceptance of responsibility 

during the guilty plea colloquy, and it therefore noted “[s]o, I have factored 

that allocution into the court’s decision.” N.T. at 57. The court then placed 

on the record the reasons for its sentence, which it acknowledged must include 

a review of the Sexual Offender Risk Assessment, the presentence 

investigation report, victim impact statements, sentencing guidelines, 

Appellant’s mitigating circumstances, and the facts that were read into the 

record at Appellant’s guilty plea.

Specifically, the court shared its observations, as follows:

It is difficult to fathom a crime more replete with terror and 

depravity than what the defendant did. And again, this is referring 

to the rape of [the clinical intern]. The context again . . . on this 

fateful Christmas Eve of 2015 when all that [she] was doing was 

being an intern in a field that she was hoping that she would be 

able to seek her profession in.

And essentially what is so chilling about it is essentially 

going into this was appears to be unaccompanied and simply 

asking if anybody needed to talk. I can’t imagine anything more 

startling than what happened. 

. . . 
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[I]t’s chilling what occurred to [the clinical intern]. She 

simply wanted to help. Again, this defendant’s background, his 

upbringing, factors indicate that he didn’t have much of a chance, 

but it appears that he was appropriately placed because of that 

background.

. . .

And this poor woman waged in to one of the most horrific 

experiences that I think anybody could ever imagine. And there’s 

no more or less.

Christmas Eve, he brutally raped her, pure and simple. 

Brutally raped her, he committed an aggravated indecent assault, 

another form of sexual assault that he perpetrated upon her. And 

then, to even make this more horrific, either was attempting to 

kill her, but in the form of her assault, strangulation and the 

injuries that he visited upon her only underscore the absolute 

danger this defendant presents.

. . .

And again, you say he’s 18 and he never had a chance. This 

court has to weigh that into the rehabilitative needs of the 

defendant. And I have, but I can’t get the scene of violence, 

sexual violence that he perpetrated upon this woman who will 

never be the same.

. . .

But this defendant was barely an adult and he has been in 

a system and he is clearly marginalized as a result of things that 

happened to him in his childhood that should have never 

happened to anyone. And resources and love, commitment, they 

should have been available to him [but] were not. And in the end, 

at the age of 18, a potentially violent predator was amongst us 

and [the clinical intern] never saw it coming. 

So, I have to sentence the crime along with the defendant. 

And the crime, you know, that this defendant committed, again, 

is the most serious, I think, in the Crimes Code. So [the sentence] 

is consistent with protection of the public.

I don’t know, you know, the future of this defendant. One 

can only hope that he will – it’s sad that he has to grow into a man 

in the prison system, but [sentencing] consistent with the 

protection of the public is of paramount importance.
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And again, [the victim in the prior assault occurring in the 

library bathroom] – I don’t know – by fate didn’t suffer more 

serious injuries. The victim impact statement lent weight as to 

the violence that she felt in that moment of her life back in the 

public library, but words can’t begin to describe the terror that 

[the clinical intern in the present case] must have felt on 

Christmas Eve of 2015. So, the weight is almost totally to the 

victim, the impact of the life of the victim.

I have factored in the rehabilitative needs of the defendant. 

And again, I don’t know what a state correctional system can 

offer, but the sentence, and concededly so, is weighted with 

Factors 1 and 2 heavily.

I’ve attempted to factor in there [ ] knowing that this 

defendant, sadly, in his world never had a chance. Never had a 

chance. And hopefully the growth he has begun since he has been 

in the county correctional system over 18 or 19 months has 

started that process.

So, this is a sentence that is weighted heavily taking into 

consideration the guidelines. I’ve decided not to put it into the 

aggravated range solely because this defendant did take 

accountability and responsibility, but they will be consecutive 

sentences because I need to weigh consistent with protection of 

the public and the impact that this has had upon the victims and 

the community in general. 

He is high risk. I can’t say that there’s any higher risk than 

the defendant based upon his Sexual Offender Risk Assessment. 

Therefore, any supervision should be consistent with that.

So total confinement is the sentence of this court. And total 

confinement is necessary because, based upon everything that 

this court has placed upon the record, there is an absolute undue 

risk this defendant would commit another crime. There is no 

doubt about that.

Again, I am factoring in – I am not factoring in the Sexually 

Violent Predator Assessment because I’m not permitted to do so 

in terms of sentencing, but I am factoring in the Sexual Offender 

Risk Assessment. This defendant is an undue risk of committing 

such a crime if he was not subject to total confinement.
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He is in need of correctional treatment because that is the 

only place in which we can confine someone that committed that 

type of crime this defendant did commit.

N.T. at 57-64.

Informed by the Sex Offenders Assessment Board’s (“SOAB”) report, to 

which Appellant stipulated, the court found Appellant to be a Sexual Violent 

Predator (“SVP”), and it participated in the Commonwealth’s advisement of 

Appellant as to his consequent registration requirements. The court then 

imposed an aggregate sentence of 13 to 38 years’ incarceration, which 

comprised consecutive terms of five and one-half to 15 years for rape, four 

and one-half years for aggravated assault, and three to eight years for 

aggravated indecent assault. N.T. at 64-66. Subsequently, the court denied 

Appellant’s motion for reconsideration of sentence. This timely appeal 

followed.

Appellant presents the following questions for our consideration:

1. Was Mr. Johnson illegally sentenced to lifetime registration 

requirements because the newly enacted Act 29 (“SORNA II”) 

is unconstitutional and the lifetime registration exceeds the 

maximum term of his sentence?

2. Did the sentencing court abuse its discretion by sentencing Mr. 

Johnson, who was just 18 years old at the time of the offense, 

to three consecutive sentences with an aggregate maximum of 

up to thirty-eight (38) years in prison where Mr. Johnson’s 

violent behavior is informed by his experiences as a victim of 

child sexual abuse; he is affected by multiple disabilities; he 

was severely under-nurtured from birth with no meaningful 

family support throughout his childhood; and he was 

essentially raised by the system and will now graduate to an 

adulthood of decades of incarceration in punitive settings that 

are not resourced to meet his rehabilitative needs?
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3. Did the sentencing court illegally impose costs on Mr. Johnson, 

who is indigent, without making a determination regarding his 

ability to pay costs?

Brief for Appellant, at 5.

In Appellant’s first issue, he contends that the lifetime registration 

requirements of SORNA II, Subchapter H,3 applicable to him are punitive in 

effect and, consequently, unconstitutionally subject him to punishment that 

extends beyond the maximum term of his sentence. We note that counsel for 

Appellant prepared this argument prior to the decision of the Pennsylvania 

Supreme Court in Butler II.

In Butler II, the Supreme Court reversed this Court's decision4that 

the SVP designation procedure in question was unconstitutional. Specifically, 

____________________________________________

3 “Subchapter H is based on the original SORNA statute and is applicable to 

offenders, ..., who committed their offenses after the December 20, 2012 

effective of SORNA.” Commonwealth v. Butler, 226 A.3d 972, 981 n.11 

(Pa. 2020) (“Butler II”); See 42 Pa.C.S.A. § 9799.10-41. SORNA was 

enacted in 2011 and became effective on December 20, 2012. Through Acts 

10 and 29 of 2018, the General Assembly split Subchapter H of SORNA into a 

Revised Subchapter H and Subchapter I. Subchapter I addresses sexual 

offenders who committed an offense on or after April 22, 1996, but before 

December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Revised 

Subchapter H, which applies to offenders such as Appellant who committed 

an offense on or after December 20, 2012, contains stricter requirements than 

Subchapter I. See 42 Pa.C.S.A. §§ 9799.10-9799.42. Thus, Appellant 

became subject to registration under Subchapter H of the Pennsylvania 

Sentencing Code pursuant to Act 29. 

4 Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa. Super. 2017) (holding 

challenges to sexual offender registration obligations under Commonwealth 

v. Muniz, 164 A.3d 1189 (Pa. 2017) implicate legality of sentence), reversed, 

226 A.3d 972 (Pa. 2020) (“Butler II”).
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the High Court held that SORNA II, Subsection H’s registration, notification, 

and counseling (“RNC”) requirements as applied to SVPs did not constitute 

constitutional criminal punishment:

Although we recognize the RNC requirements impose affirmative 

disabilities or restraints upon SVPs, and those requirements have 

been historically regarded as punishment, our conclusions in this 

regard are not dispositive on the larger question of whether the 

statutory requirements constitute criminal punishment. This is 

especially so where the government in this case is concerned with 

protecting the public, through counseling and public notification 

rather than deterrent threats, not from those who have been 

convicted of certain enumerated crimes, but instead from those 

who have been found to be dangerously mentally ill. Under the 

circumstances, and also because we do not find the RNC 

requirements to be excessive in light of the heightened public 

safety concerns attendant to SVPs, we conclude the RNC 

requirements do not constitute criminal punishment.

Id. at 992-993 (internal citation omitted). See also Commonwealth v. 

Torsilieri, 232 A.3d 567, 572 n.2 (Pa. 2020) (distinguishing the Butler II

holding from the constitutional challenges to Subchapter H raised by appellant 

Torsilieri, noting, “as Butler II involves provisions related to the SVP 

designation process, it is not relevant to [appellant Torsilieri], who was not 

designated an SVP.”).

Therefore, the entirety of Appellant’s constitutional challenge is at odds 

with and, thus, nullified by Butler II. As such, it can afford him no relief.

In Appellant’s second issue, he contends the court abused its sentencing 

discretion by failing to consider mitigating factors and imposing consecutive 

____________________________________________
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sentences. Appellant thus challenges the discretionary aspects of his 

sentence.

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).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) 

(quotation marks and some citations omitted). 

Here, Appellant filed a timely notice of appeal, preserved his issue in a 

post-sentence motion, and included a statement in his brief pursuant to 

Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). The final requirement, whether 

the question raised by Appellant is a substantial question meriting our 

discretionary review, “must be evaluated on a case-by-case basis. 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.” Manivannan, 

186 A.3d at 489 (quotation marks and some citations omitted).

In his Rule 2119(f) Statement, Appellant contends that the trial court

abused its discretion when it imposed standard-range guideline sentences by 
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failing to properly consider his mitigating circumstances and by ordering his 

sentences to run consecutively. 

As to whether a challenge to consecutive sentences within the guideline 

ranges raises a substantial question, this Court has made the following 

observations: was discussed by this Court in:

We consistently have recognized that excessiveness claims 

premised on imposition of consecutive sentences do not raise a 

substantial question for our review. See Commonwealth v. 

Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc) 

(stating, “[a] court's exercise of discretion in imposing a sentence 

concurrently or consecutively does not ordinarily raise a 

substantial question[.]”), appeal denied, 633 Pa. 774, 126 A.3d 

1282 (2015); see also Commonwealth v. Ahmad, 961 A.2d 

884, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass, 914 

A.2d 442, 446–47 (Pa. Super. 2006). Additionally, Appellant 

claims that the trial court failed to consider his mitigating 

circumstances, specifically his “advanced” age of over seventy 

years. Appellant's Brief at 50. In Commonwealth v. Eline, 940 

A.2d 421 (Pa. Super. 2007), we concluded that an appellant's 

argument that “the trial court failed to give adequate 

consideration to [his] poor health and advanced age” in fashioning 

his sentence does not raise a substantial question. Eline, 940 

A.2d at 435. In so concluding, we explained that “[t]his court has 

held on numerous occasions that a claim of inadequate 

consideration of mitigating factors does not raise a substantial 

question for our review.” Id. (citation omitted); see

Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 2013) 

(citations omitted) (“This Court has held on numerous occasions 

that a claim of inadequate consideration of mitigating factors does 

not raise a substantial question for our review.”); see also

Commonwealth v. Berry, 785 A.2d 994 (Pa. Super. 2001) 

(explaining allegation that sentencing court failed to consider 

certain mitigating factor generally does not raise a substantial 

question); Commonwealth v. Cruz–Centeno, 447 Pa.Super. 

98, 668 A.2d 536, 545 (1995) (“[a]n allegation that a sentencing 

[judge] ‘failed to consider’ or ‘did not adequately consider’ certain 

factors does not raise a substantial question that the sentence was 

inappropriate,”), appeal denied, 544 Pa. 653, 676 A.2d 1195 
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(1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. 

Super. 1997) (finding absence of substantial question where 

appellant argued the trial court failed to adequately consider 

mitigating factors and to impose an individualized sentence). 

Consistent with the foregoing cases, we conclude that Appellant 

failed to raise a substantial question with respect to his 

excessiveness claim premised on the imposition of consecutive 

sentences and inadequate consideration of mitigating factors.

Commonwealth v. Radecki, 180 A.3d 441, 468–69 (2018). See also

Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (en banc)

(“The imposition of consecutive, rather than concurrent, sentences may raise 

a substantial question in only the most extreme circumstances, such as where 

the aggregate sentence is unduly harsh, considering the nature of the crimes 

and the length of imprisonment.”) (citations and internal quotation marks 

omitted).

Unlike the circumstances discussed in Radecki, 180 A.3d at 469, and 

Caldwell, 117 A.3d at 769, Appellant's Rule 2119(f) Statement claims neither

that the length of his aggregate sentence was excessive given the criminal 

conduct involved, nor does he assert that the trial court's application of the 

guidelines was somehow unreasonable. Indeed, in the case sub judice, 

Appellant’s criminal conduct was not only most violent, but also the second 

brutal, ambush-style sexual attack that he carried out in a relatively short 

span of time. Accordingly, Appellant's assertion that the trial court abused its 

discretion by sentencing him in the standard range of the sentencing 

guidelines for all charges and by ordering his sentences to run consecutively 

does not raise a substantial question. Id. at 8.
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The crux of Appellant’s discretionary aspect challenge lies, instead, in 

his insistence that the trial court failed to consider mitigating evidence 

properly. We note that “[a]n allegation that the sentencing court failed to 

consider certain mitigating factors generally does not necessarily raise a 

substantial question.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. 

Super. 2010) (citing Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. 

Super. 1999) (reiterating allegation that sentencing court “failed to consider” 

or “did not adequately consider” certain factors generally does not raise 

substantial question)).

An exceptional instance where this Court has identified a substantial 

question from an allegation that a trial court failed to consider adequately

mitigating circumstances was in Commonwealth v. Felmlee, 828 A.2d 

1105, 1107 (Pa. Super. 2003) (en banc), where the sentencing court 

sentenced in the aggravated range of the sentencing guidelines. This, 

however, is not the case in the current appeal. For this reason, Appellant's 

allegations in his Rule 2119(f) Statement concerning mitigating evidence do 

not raise a substantial question, either.5

____________________________________________

5 Even if we were to identify a substantial question in Appellant’s claim of 

insufficiently considered mitigating circumstances, we would find the claim 

belied by the record of the trial court’s open court statement of reasons 

crediting Appellant’s allocution, his expression of remorse, and the 

considerable hardships he endured throughout his childhood for its decision to 

downgrade what otherwise would have been an aggravated range sentence to 

a standard range sentence. 
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Consequently, none of Appellant's arguments in his Rule 2119(f) 

Statement raises a substantial question. For this reason, we conclude he has 

not preserved his challenge to the discretionary aspects of sentencing.

In Appellant’s final issue, raised for the first time in this appeal, he posits 

that the court erroneously ordered Appellant to pay the costs of prosecution 

without first considering Appellant’s ability to pay such costs. Because 

Appellant’s claim challenges the sentencing court's authority to impose costs 

as part of its sentencing order, it implicates the legality of his sentence and 

represents a non-waivable claim. See Commonwealth v. Lehman, 201 

A.3d 1279, 1283 (Pa. Super. 2019), aff’d, 243 A.3d 7 (Pa. 2020). “Our 

standard of review over such questions is de novo and our scope of review is 

plenary.” Commonwealth v. White, 193 A.3d 977, 985 (Pa. Super. 2018) 

(citing Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)).

The Judiciary Code requires a trial court to order a convicted defendant 

to pay costs pursuant to 42 Pa.C.S.A. § 9721(c.1), which provides:

Mandatory payment of costs.—Notwithstanding the provisions of 

section 9728 (relating to collection of restitution, reparation, fees, 

costs, fines and penalties) or any provision of law to the contrary, 

in addition to the alternatives set forth in subsection (a), the 

court shall order the defendant to pay costs. In the event 

the court fails to issue an order for costs pursuant to section 9728, 

costs shall be imposed upon the defendant under this 

section. No court order shall be necessary for the 

defendant to incur liability for costs under this section. The 

provisions of this subsection do not alter the court's discretion 

under Pa.R.Crim.P. 706(C) (relating to fines or costs).

42 Pa.C.S.A. § 9721(c.1) (emphasis added).
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As this Court recently recognized in Commonwealth v. Lopez, 2021 

PA Super 51 (filed March 23, 2021) (en banc), the Pennsylvania Rules of 

Criminal Procedure, Sentencing Code, and established decisional law confer 

upon a trial court discretion over whether to hold an ability-to-pay hearing at 

the time of sentencing. Only before incarcerating a defendant for failing to 

pay the costs imposed must a court hold a hearing. See Lopez, at **13-14 

(explaining, “unless and until a defendant is in peril of going to prison for 

failing to pay the costs imposed on him. It is only at that point that the 

mandate for an ability-to-pay hearing arises”).

Appellant is not facing incarceration for failing to pay the costs of 

prosecution imposed at his sentencing. Thus, he was not entitled to an abilityto-pay hearing at that time, which renders meritless his claim that the trial 

court erred in failing to conduct such a hearing prior to imposing costs.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/21