J-S36026-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

KENNETH LEE RICHIE 

 Appellant No. 1785 WDA 2014 

Appeal from the Judgment of Sentence March 13, 2014

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0002114-2011 

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.* 

MEMORANDUM BY JENKINS, J.: FILED JULY 10, 2015

 Appellant Kenneth Lee Richie appeals from the judgment of sentence1

entered in the Westmoreland County Court of Common Pleas following his 

guilty plea to numerous sexual offenses against a child. We affirm. 

 The relevant facts and procedural history of this appeal as follows. On 

April 3, 2011, Appellant picked up a fifteen-year-old boy (“Victim”) and 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 In his brief, Appellant claims to appeal from the September 26, 2014 order 

denying his post-sentence motions, however, he is actually appealing his 

judgment of sentence. See Commonwealth v. Chamberlain, 658 A.2d 

395, 397 (Pa.Super.1995) (“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 postsentence motions”). 
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brought him to Appellant’s home, supposedly so that Victim could help 

Appellant clean his basement. Appellant attacked Victim, performed anal 

sex on Victim and forced Victim to perform oral sex on Appellant. Appellant 

then returned Victim to his home and threatened him that if he told anyone 

what happened, he would get his army buddies to kill Victim’s family. Victim 

went to the emergency room to be treated for sexual assault and reported 

what had happened to detectives. 

 The district attorney charged Appellant with twenty-one violations of 

the Pennsylvania Crimes Code. On September 16, 2011, the Commonwealth 

filed written notice of its intent to seek the applicable mandatory sentence 

against Appellant. On May 14, 2013, Appellant pled guilty to rape, two 

counts of involuntary deviate sexual intercourse (“IDSI”), sexual assault, 

indecent assault, unlawful contact with a minor, corruption of minors, and 

terroristic threats. 2 The Commonwealth dismissed the remaining counts in 

exchange for Appellant’s plea. 

 On December 19, 2013, after a sexually violent predator (“SVP”) 

hearing, the court determined Appellant was a Tier III SVP. On March 13, 

____________________________________________ 

2

 18 Pa.C.S. §§ 3121(a)(1), 3123 (a)(1), § 3124.1, § 3126(a)(2), 

6318(a)(1), 6301(a)(1), and 2706(a)(1), respectively. 
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2014, the court sentenced Appellant to an aggregate sentence of 50-100 

years’ incarceration.3 

 On March 24, 2014, Appellant timely filed a post-sentence motion for 

modification of sentence. The court conducted a hearing on July 17, 2014, 

and denied Appellant’s motion on September 26, 2014. On October 27, 

2014, Appellant timely filed a notice of appeal.4 On November 11, 2014, 

pursuant to the court’s order, Appellant filed a Pa.R.A.P. 1925(b) 

statement.5 

 Appellant raises the following issue for our review: 

WHETHER THE TRIAL COURT ERRED BY DENYING 

[APPELLANT’S] POST-SENTENCE MOTION FOR 

MODIFICATION OF SENTENCE FOR THE REASONS THAT 

THE AGGREGATE SENTENCE OF FIFTY (50) TO ONE 

____________________________________________ 

3

 Specifically, the court imposed consecutive sentences, pursuant to the 

mandatory sentencing provisions of 42 Pa.C.S. § 9718.2 of 25-50 years’ 

incarceration for rape and 25-50 years’ incarceration for IDSI. We note that 

the mandatory sentencing provision applied to individuals with prior 

convictions as set forth in 42 Pa.C.S. § 9799.14 is not unconstitutional under 

Alleyne v. United States, ___ U.S. ___, 133 S.Ct 2151, 186 L.Ed 2d 341 

(2013). The court also imposed incarceration sentences of 25-50 years for 

IDSI, 25-50 years for sexual assault, 25-50 years for aggravated indecent 

assault, 25-50 years for indecent assault, 25-50 years for unlawful contact 

with minor, 3-7 years for corruption of minors, and 11⁄2-5 years for terroristic 

threats, to be served concurrently with his first IDSI sentence. 

4

 We note that October 26, 2014 fell on a Sunday. 

5

 The trial court adopted its September 26, 2014 order and opinion for the 

denial of Appellant’s motion for modification of sentence and attached it to 

its Pa.R.A.P. 1925 statement, filed November 25, 2014. 
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HUNDRED (100) YEARS OF INCARCERATION AT THE 

DEPARTMENT OF CORRECTIONS, WHICH THE TRIAL 

COURT IMPOSED UPON THE APPELLANT WAS MANIFESTLY 

EXCESSIVE AND CONSTITUTED TOO SEVERE OF A 

PUNISHMENT? 

Appellant’s Brief at 6. 

 Appellant challenges the discretionary aspects of his sentence. He 

argues that his aggregate sentence of 50-100 years’ incarceration is 

manifestly excessive for a single crime considering Appellant’s age, his low 

intelligence level, his unfortunate childhood, and the fact that he has not 

been convicted of raping other children for more than twenty years. We 

disagree. 

Challenges to the discretionary aspects of sentencing do not entitle a 

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super.2011). Before this Court can address such a discretionary 

challenge, an appellant must comply with the following requirements: 

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (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. 

Id. 

 Presently, Appellant filed a timely post-sentence motion and notice of 

appeal. Further, Appellant’s brief includes a concise statement of reasons 
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relied upon for allowance of appeal with respect to the discretionary aspects 

of his sentence pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 12. We 

now must determine whether Appellant presents a substantial question that 

the sentence appealed from is not appropriate under the Sentencing Code. 

 “The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 

526, 533 (Pa.Super.2011). Further: 

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. (internal citations omitted). 

“An appellant making an excessiveness claim raises a substantial 

question when he 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.” Commonwealth v. Raven, 97 A.3d 1244, 1253 

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations 

omitted). 

“[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.” Commonwealth v. Disalvo, 70 A.3d 900, 903 

(Pa.Super.2013) (internal citation omitted). Further, a court’s exercise of 
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discretion in imposing a sentence concurrently or consecutively does not 

ordinarily raise a substantial question. Commonwealth v. Mastromarino, 

2 A.3d 581, 587 (Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011). 

Rather, the imposition of consecutive rather than concurrent sentences will 

present 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.” Commonwealth v. 

Lamonda, 52 A.3d 365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 

(Pa.2013). This Court has held that: 

a defendant may raise a substantial question where he 

receives consecutive sentences within the guideline ranges 

if the case involves circumstances where the application of 

the guidelines would be clearly unreasonable, resulting in 

an excessive sentence; however, a bald claim of 

excessiveness due to the consecutive nature of a sentence 

will not raise a substantial question. 

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

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014) 

(emphasis in original). This Court has also held that “an excessive sentence 

claim—in conjunction with an assertion that the court failed to consider 

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

Raven, 97 A.3d 1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 

(Pa.2014) (quoting Commonwealth v. Perry, 883 A.2d 599, 602 

(Pa.Super.2005)). Additionally: 

In determining whether a substantial question exists, this 

Court does not examine the merits of whether the 
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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. 

Dodge, supra at 1270 (internal citations omitted). 

Based on our review of the foregoing precedents, we conclude that 

Appellant’s challenge to the imposition of his consecutive sentences as 

unduly excessive, together with his claim that the court failed to consider 

mitigating factors, presents a substantial question. Thus, we grant his 

petition for allowance of appeal and address the merits of his claim. 

“Sentencing is a matter vested within the discretion of the trial court 

and will not be disturbed absent a manifest abuse of discretion.” 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing 

Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse 

of discretion requires the trial court to have acted with manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” Id. (citing Commonwealth v. 

Walls, 926 A.2d 957 (Pa.2007)). 

“A sentencing court need not undertake a lengthy discourse for its 

reasons for imposing a sentence or specifically reference the statute in 

question, but the record as a whole must reflect the sentencing court’s 

consideration of the facts of the crime and character of the offender.” 

Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d 
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1247 (Pa.Super.2006)). Further, “where the trial court is informed by a presentence report, it is presumed that the court is aware of all appropriate 

sentencing factors and considerations.” Commonwealth v. Ventura, 975 

A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519 

Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)). 

Here, the sentencing court had the benefit of a presentence report, 

and Appellant exercised his right to allocution at his sentencing hearing. At 

sentencing, the court stated: 

I have reviewed everything thoroughly. I have reviewed 

the presentence report that Mrs. DeFloria did such an 

excellent job preparing. In that presentence report is 

contained the evaluation from Mayview State Hospital after 

the first conviction, and then there is another evaluation 

by Torrance State Hospital in August of 2012. 

[Defense counsel], you just brought up the fact asking me 

to show some sort of understanding or compassion 

because your client was molested as a child by his brother 

allegedly. The first time that ever appears is with Mrs. 

Defloria’s interview he tells her that. When he was 

evaluated by Mayview State Hospital in 1983 he makes no 

mention of ever being molested. He gives the reason for 

raping that 11 year old child as being alcohol, having 

drinking too much alcohol and doing that, then he gives 

the same reason when after he got out of prison for raping 

a 10 year old girl. These were children of a friend of his. 

That he raped these children and he gave the reason again 

as being alcohol abuse... and even if he had been [abused], 

that doesn’t excuse what happened here, what he did to 

these three victims... 

N.T., 3/13/14, at 16-19. 

The court considered mitigating factors before imposing Appellant’s 

sentences consecutively. We see no abuse of discretion. 
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Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/10/2015