J-S16028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH ANDREW KOVALESKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 824 MDA 2018

Appeal from the Judgment of Sentence Entered April 10, 2017

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

No(s): CP-35-CR-0002000-2012

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 16, 2019

Kenneth Andrew Kovaleski (Appellant) appeals from the judgment of 

sentence imposed after the trial court granted Appellant relief under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and re-sentenced 

him on April 10, 2017. Upon review, we affirm. 

In Appellant’s prior appeal, this Court recounted the relevant factual and 

procedural history: 

In June 2011, Appellant raped Victim, his adopted minor 

daughter. Appellant continued to abuse Victim over the course of 

a year until she reported the abuse to police in July 2012. On 

February 26, 2014, a jury convicted Appellant of rape by forcible 

compulsion, statutory sexual assault, incest, involuntary deviate 

sexual intercourse (IDSI) with a person less than sixteen (16) 

years of age, IDSI by forcible compulsion, unlawful contact with a 

minor, aggravated indecent assault on a person less than sixteen 

(16) years of age, endangering the welfare of children, corruption 

of minors, and indecent assault. The [trial] court sentenced 

Appellant on July 2, 2014, to an aggregate term of twenty-one 

(21) to forty-two (42) years’ imprisonment; this sentence included 
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mandatory minimums under 42 Pa.C.S.A. § 9718. The [trial] 

court also adjudicated Appellant a Tier III offender and a sexually 

violent predator (SVP) under the Sex Offender Registration and 

Notification Act (SORNA) in effect at that time. On April 30, 2015, 

this Court affirmed the judgment of sentence. Our Supreme Court 

denied Appellant’s petition for an allowance of appeal on 

November 10, 2015. 

On October 13, 2016, Appellant timely filed a PCRA petition. 

Appellant filed a motion for recusal of the trial judge from 

presiding over the PCRA proceedings on October 18, 2016, 

because the judge and the prosecutor were Facebook friends. On 

November 16, 2016, the PCRA court held a hearing on the recusal 

motion and denied relief. On February 13, 2017, the PCRA court 

held an evidentiary hearing; the [PCRA] court initially denied PCRA 

relief on March 8, 2017. Appellant timely filed a motion for 

reconsideration on March 20, 2017. On March 23, 2017, the PCRA 

court expressly granted relief in part, regarding the imposition of 

the mandatory minimum sentences, and again denied PCRA relief 

in all other respects. 

On April 10, 2017, the [trial court] resentenced Appellant to 

an aggregate term of twenty (20) to forty (40) years’ 

imprisonment, without the mandatory minimum sentences. After 

sentencing, Appellant objected to both IDSI sentences on the 

record; and the [trial] court accepted the oral motion for 

reconsideration in lieu of a written motion. Appellant, however, 

also timely filed a written post-sentence motion on April 18, 2017, 

which claimed the [trial] court was vindictive when it resentenced 

Appellant and the entire sentence was contrary to the 

fundamental norms of sentencing. The [trial] court did not rule 

on Appellant’s post-sentence motion. Nevertheless, on . . . April 

24, 2017, Appellant filed a notice of appeal. 

Commonwealth v. Kovaleski, 721 MDA 2017, *1 (Pa. Super. Apr. 27, 2018) 

(unpublished memorandum) (footnotes omitted). 

On April 27, 2018, this Court quashed Appellant’s appeal with regard to 

his challenge of the discretionary aspects of his sentence because of the

outstanding and timely-filed post-sentence motion. Id. at *8. Accordingly, 
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we remanded Appellant’s case to the trial court for the consideration and 

disposition of his outstanding post-sentence motion. Id.

Following remand, the trial court denied Appellant’s post-sentence 

motion on April 27, 2018. On May 17, 2018, Appellant filed a notice of appeal. 

Both Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925. 

Appellant presents five sentencing issues for our review:

1. Was the re-imposition of essentially the same sentence at the 

re-sentencing hearing improper? 

2. Did the re-sentencing violate Appellant’s constitutional due 

process rights under North Carolina v. Pearce, 295 U.S. 711 

(1989), because the [trial court] increased Appellant’s 

sentence on various charges? Did the [trial court] not justify 

the increases as required under Commonwealth v. Barnes,

2017 WL 2927566, at *11 (Pa. Super. 2017) and 

Commonwealth v. Walker, 568 A.2d 201, 205 (Pa. Super. 

1989)? 

3. Did the [c]ourt fail to state on the record, the proper application 

of the sentencing guidelines, and a contemporaneous 

statement for reasons for the consecutive nature of the 

sentences? 

4. Do the questions presented, supra, raise a substantial 

question as to whether the sentence violated a specific 

provision of the sentencing code or is contrary to the 

“fundamental norms underlying the sentencing process.” See 

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); 

Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002); 

Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. 2005). 

5. Does the substantial question requirement of Pennsylvania 

Rule of Appellate Procedure 2119(f) violate Appellant’s right to 

appeal under the Pennsylvania Constitution Article V Section 9, 

to review of a court of record’s decision by an appellate court? 
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a. Additionally, does the substantial question rule 

violate Pennsylvania Constitution Article V Section 

9, when Appellant only raises sentencing issues on 

direct appeal? 

Appellant’s Brief at 8-9.

However, the argument section of Appellant’s brief has only two 

sections, titled “THE SENTENCE SHOULD BE MODIFIED,” and “CLAIMS UNDER 

THE PENNSYLVANIA CONSTITUTION.” See id. at 17, 20-21. Appellant is in 

clear violation of the Pennsylvania Rules of Appellate Procedure, which state:

The argument shall be divided into as many parts as there are 

questions to be argued; and shall have at the head of each part—

in distinctive type or in type distinctively displayed—the particular 

point treated therein, followed by such discussion and citation of 

authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

The above deficiency notwithstanding, we proceed to address the 

substance of Appellant’s claims. First, we recognize that Appellant is 

challenging the discretionary aspects of his sentence.

1,2

 “The right to 

appellate review of the discretionary aspects of a sentence is not absolute, 

and must be considered a petition for permission to appeal.” 

____________________________________________

1 While Appellant’s second issue appears to be a constitutional claim, we have 

held that a judicial vindictiveness claim is a challenge to the discretionary 

aspects of sentencing. Commonwealth v. Robinson, 931 A.2d 15, 22 (Pa. 

Super. 2007) (“[A] claim of vindictiveness is a waivable challenge to the 

discretionary aspects of the sentence.”). 

2 Appellant’s fourth issue generally claims that Appellant has raised substantial 

questions. Because we find that Appellant has raised substantial questions, 

we forgo any further discussion of this issue.
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). 

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction 

when challenging the discretionary aspects of a sentence.” Id. We conduct 

this four-part test to determine whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted). “A defendant presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the sentencing 

code or is contrary to the fundamental norms of the sentencing process.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations 

omitted).

Appellant has complied with the first three prongs of the test by raising 

his discretionary sentencing claims in a timely post-sentence motion, filing a 

timely notice of appeal, and including in his brief a Rule 2119(f) concise 

statement. See Appellant’s Brief at 6-7. Therefore, we examine whether 

Appellant presents substantial questions for our review.3

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3

In determining whether Appellant has raised a substantial question, “[w]e 

cannot look beyond the statement of questions presented and the prefatory 

[Rule] 2119(f) statement to determine whether a substantial question exists.” 

Commonwealth v. Barnes, 167 A.3d 110, 123 (Pa. Super. 2017) (en banc) 

(citing Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013). 
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Appellant argues that in re-sentencing him, the trial court “violate[d] 

Appellant’s [constitutional] due process rights under [North Carolina v.

Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. 

Smith, 490 U.S. 794 (1989)]. Appellant’s Brief at 8. He also claims that the 

trial court failed to adequately state its reasons for its sentence on the record. 

Id. Accordingly, Appellant has raised substantial questions for our review. 

See Barnes, 167 A.3d at 123 (“[I]t is settled that [a]ppellant’s claim that his 

sentence on remand was a product of vindictiveness presents a substantial 

question for our review.”) (citation omitted); Commonwealth v. Simpson, 

829 A.2d 334, 338 (Pa. Super. 2003) (a substantial question is raised where 

the defendant claimed “that the trial court failed to sufficiently state its 

reasons for the sentence imposed.”) (citation omitted).

We thus review Appellant’s sentencing claims mindful of the following:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge. The standard employed when reviewing the 

discretionary aspects of sentencing is very narrow. We may 

reverse only if the sentencing court abused its discretion or 

committed an error of law. A sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 

abuse of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that 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. We must accord 

the sentencing court’s decision great weight because it was in the 

best position to review the defendant’s character, defiance or 

indifference, and the overall effect and nature of the crime. 

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations 

omitted). 
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Appellant’s first discretionary claim4 asserts that the trial court was 

judicially vindictive by “essentially impos[ing] the same aggregate sentence 

at re-sentencing.” Appellant’s Brief at 8. 

The United States Supreme Court in Pearce stated: 

Due process of law . . . requires that vindictiveness against a 

defendant for having successfully attacked his first conviction 

must play no part in the sentence he receives after a new trial. 

And since fear of such vindictiveness may unconstitutionally deter 

a defendant’s exercise of the right to appeal or collaterally attack 

his first conviction, due process also requires that a defendant be 

freed of apprehension of such a retaliatory motivation on the part 

of the sentencing judge. 

In order to assure the absence of such a motivation, we have 

concluded that whenever a judge imposes a more severe sentence 

upon a defendant after a new trial, the reasons for his doing so 

must affirmatively appear. Those reasons must be based upon 

objective information concerning identifiable conduct on the part 

of the defendant occurring after the time of the original sentencing 

proceeding. And the factual data upon which the increased 

sentence is based must be part of the record, so that the 

constitutional legitimacy of the increased sentence may be fully 

reviewed on appeal. 

Pearce, 395 U.S. at 725-26. 

This Court has held that “Pearce’s rationale for providing reasons on 

the record applies also when the original sentence is vacated and a second 

sentence is imposed without an additional trial.” Barnes, 167 A.3d at 110 

(citation omitted). Absent evidence that a sentencing increase is justified, 

____________________________________________

4 For ease of review, we combine the analyses of Appellant’s first and second

questions presented because they are interrelated and Appellant combines 

these two issues, along with his third question presented, into one argument

section in his brief. See Appellant’s Brief at 17-20. 
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“the presumption of vindictiveness cannot be rebutted.” Commonwealth v. 

Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1990).

However, as recently noted by the en banc panel of this Court in 

Barnes, the presumption can be rebutted where a trial court imposes higher 

sentences on certain counts during re-sentencing to reach the same aggregate 

sentence as previously imposed and preserve its sentencing scheme. Barnes, 

167 A.3d at 124 (“[A] judge can duplicate the effect of the original sentencing 

plan by adjusting the sentences on various counts so that the aggregate 

punishment remains the same.”). This Court in Barnes analyzed our decision 

in Commonwealth v. McHale, 924 A.2d 664 (Pa. Super. 2007), overruled in 

part on other grounds by Commonwealth v. Robinson, 931 A.2d 15 (Pa. 

Super. 2007): 

In [McHale], we upheld the trial court’s resentencing of the 

defendant when his conviction on the most serious charges, two 

counts of aggravated assault, previously had been based on 

insufficient evidence. After remand, to maintain the same total 

aggregate sentence as originally imposed, the trial court increased 

the overall sentence on the surviving counts. Noting that the 

aggregate sentence remained unchanged, we upheld the new 

sentence. In so doing, we noted: 

[O]ur conclusion is not altered by the fact that remand 

and resentencing were prompted by reversal of two of 

[the defendant’s] convictions. . . . Whether remand is 

the result of reversal of one or more convictions or 

vacation of an illegal sentence, we conclude that the 

trial court has the same discretion and responsibilities 

in resentencing. 

Barnes, 167 A.3d at 124-25 (citations omitted). 
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Here, the trial court did not impose a “vindictive sentence” on Appellant 

because aggregate sentence after remand was decreased, which Appellant 

concedes. See Appellant’s Brief at 13-15. Consistent with our holding in 

Barnes, it is apparent that the trial court increased Appellant’s IDSI sentence 

not out of vindictiveness, but in an attempt to preserve the integrity of its 

original sentencing scheme; a goal specifically referenced by the trial court at 

Appellant’s re-sentencing. N.T., 4/10/17, at 18 (“[I]t is my intent to achieve 

through sentencing today what the court—what I was able to achieve back on 

July 2nd of 2014.”). As the trial court’s desire to preserve its previous 

sentencing scheme defeats the presumption of vindictiveness, and Appellant’s 

aggregate sentence was not increased at re-sentencing, we do not find that 

his sentence was a result of judicial vindictiveness. Therefore, Appellant is 

not entitled to relief. Barnes, 167 A.3d at 125. 

Appellant also asserts that the trial court failed to place adequate 

reasoning on the record for the sentence. Appellant’s Brief at 8. The relevant 

portion of 42 Pa.C.S.A. § 9721(b) states: 

In selecting from the alternatives set forth in subsection (a), the 

court shall follow the general principle that the sentence imposed 

should call for confinement that is consistent with 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. . . . In every case in which 

the court imposes a sentence for a felony or misdemeanor . . . the 

court shall make as a part of the record, and disclose in open court 

at the time of sentencing, a statement of the reason or reasons 

for the sentence imposed.

Id.
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In addition: 

In imposing sentence, the trial court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. The trial court should refer to the defendant’s prior 

criminal record, age, personal characteristics, and potential for 

rehabilitation. However, where the sentencing judge had the 

benefit of a presentence investigation report, it will be presumed 

that he or she was aware of the relevant information regarding 

the defendant’s character and weighed those considerations along 

with mitigating statutory factors. Additionally, the sentencing 

court must state its reasons for the sentence on the record. 42 

Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the 

requirement that reasons for imposing sentence be placed on the 

record by indicating that he or she has been informed by the presentencing report; thus properly considering and weighing all 

relevant factors.

Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing Commonwealth v. 

Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (some citations omitted). 

Instantly, the trial court at re-sentencing commented at length: 

I have had the opportunity to review the presentence 

investigation that was originally prepared, but then updated by 

the Department of Probation because of the change in the law 

regarding the imposition of mandatory minimums for some of the 

offenses for which [Appellant] was convicted. I have also had the 

opportunity to review the letter submitted by the victim in this 

case[.] And I did have the opportunity to preside over the trial. 

So, I am now prepared to impose sentence. I do, in fashioning 

the sentence that I’m imposing here today, I did take into 

consideration the standard guideline range as well as the 

opportunity to sentence outside of the standard guideline range. 

And I will tell you, my sentence on all of the charges is going to 

be within the standard guideline range. However, it is my intent 

to achieve through sentencing today what the court—what I was 

able to achieve back on July 2nd of 2014. I do agree with the 

Commonwealth in that sense in that at that time the 

Commonwealth had invoked mandatory minimum sentences. And 

the court if I wanted to, I would have been unable to deviate 

outside of that particular sentencing scheme. But now, the 

mandatory minimum sentences are no longer permissible in the 
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state of Pennsylvania. We’re back really to square one, 

sentencing without the imposition of any mandatory minimum 

sentences. So, but in terms of value and weight of the sentencing 

scheme and having listened to the testimony and having presided 

over the trial and taking everything into consideration, the court 

does recognize the very persuasive arguments here today, but I 

am mindful of the serious nature and gravity of these offenses, 

the violation of trust, many, many troubling aspects of this case. 

So, in Count 1, rape, it is going to be the order of this court 

that [Appellant] be sentenced to serve a period of incarceration in 

a state correctional institution for a minimum of 5 to a maximum 

of 10 years. That sentence is within the standard range. With 

respect to Count 2, [IDSI], it’s going to be the order of this court 

that [Appellant] be sentenced to serve a minimum of 5 to a 

maximum of 10 years in a state correctional institution 

consecutive to Count 1. With respect to Count 3 . . ., [IDSI], it’s 

going to be the order of this court that [Appellant] be sentenced 

to serve a sentence of 5 to 10 years consecutive to Counts 1 and 

2. With respect to Count 4, aggravated indecent assault, it’s going 

to be the order of this court that [Appellant] be sentenced to serve 

a period of incarceration in a statement correctional institution for 

2 to 4 years consecutive. With respect to Count 5, incest, it’s the 

order of this court that [Appellant] be sentenced to serve a period 

of 1 to 2 years in a state correctional institution, consecutive. With 

respect to Count 6, the statutory sexual assault, it’s the order of 

this court that [Appellant] be sentenced to serve a period of 

incarceration in the state correctional institution, 1 to 2 years, 

consecutive. Count 7, endangering the welfare of a child, it’s

going to be the order of this court that [Appellant] be sentenced 

to serve a period of incarceration for 1 to 2 years, consecutive. 

Count 8, corruption of minors, it’s going to be the order of this 

court that the defendant be sentenced to serve a minimum of 3 

months to a maximum of 12 months in a state correction 

institution, concurrent. Count 9, indecent assault, the 

Commonwealth concedes that Count 9 merges for purposes of 

sentencing with Count 4, aggravated indecent assault. So the 

aggregate sentence here today is to 20 to 40 years in a state 

correctional institution. [Appellant] is not eligible for the RRRI 

reduction in sentence. And I must now advise you, sir, of the 

reasons for the sentence here today. This sentence recognizes 

the nature and gravity of the offenses. It recognizes the unusual 

circumstance that the victim of these crimes is the adopted 

daughter of [Appellant]. And that, initially, she was the foster 
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child of [Appellant] and later adopted by [Appellant] and his wife. 

It recognizes that this sentence is necessary for the protection of 

the community and [Appellant’s] needs for punishment and 

rehabilitation. 

N.T., 4/10/17, at 17-22.

The trial court further opined: 

[Appellant] asserts that his due process rights were violated 

because the sentence imposed by this court at the resentencing 

hearing was “essentially the same sentence” as the original 

sentence. He further asserts the trial court erred when it 

increased his sentence on various charges without stating the 

reasons justifying the increases on the record. This simply is not 

true. (See N.T. 4/10/17 at pg. 17). Additionally, he fails to state 

any reasons for his conclusion, nor does he cite to any evidence 

in the transcripts.

The sentence imposed by this court at the resentencing 

hearing was clearly not the result of judicial vindictiveness. This 

court stated that its intent was to preserve the integrity of the 

original sentencing scheme. (See N.T. 4/10/17 at pg. 17). 

Furthermore, [Appellant’s] due process rights were not violated 

because his aggregate sentence was actually less than the one 

originally imposed. Thus, [Appellant’s] boilerplate assertions, 

without more, cannot withstand judicial scrutiny. See

Commonwealth v. Hale, 924 A.2d 664, 670 (Pa. Super. 2007) 

(“preserving the integrity of the original sentencing scheme is a 

legitimate sentencing concern, and sentences may be adjusted so 

that the aggregate punishment remains the same upon 

resentencing.”). Additionally, [Appellant] alleges this court 

abused its discretion by imposing consecutive sentences for 

various offenses. However, Pennsylvania courts have ruled to the 

contrary. See McHale, supra 924 A.2d at 673 (holding that, upon 

resentencing, re-imposition of the same aggregate sentence by 

changing sentences on various charges to run consecutively rather 

than concurrently was within the trial court’s discretion.)[.]

Finally, this court provided proper and legitimate reasons 

when it resentenced [Appellant] to [an] aggregate term of twenty 

(20) to (40) years of imprisonment. This [c]ourt made it clear the 

reasons for the sentence[.] . . . [A]ppellant’s assertions are 
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boilerplate and are not supported by any evidence contained in 

the record. 

Trial Court Opinion, 10/5/18, at 7-8 (footnotes omitted, underlining in 

original). 

We agree with the trial court. At Appellant’s re-sentencing, the trial 

court specifically stated on the record that it “had the opportunity to review 

the presentence investigation [report] that was originally prepared, but then 

updated by the Department of Probation[.]” N.T., 4/10/17, at 17-18. As the 

trial court indicated that it was informed by Appellant’s pre-sentence 

investigation report, it properly satisfied the requirement of Section 9721(b) 

that the reasons for the imposition of sentence be placed on the record. 

Moreover, the trial court provided commentary acknowledging the gravity of 

the offenses committed, Appellant’s relationship to the victim, the necessity 

of protecting the community, and Appellant’s need for punishment and 

rehabilitation. See N.T., 4/10/17, at 21-22. 

Ultimately, the trial court determined that Appellant’s crimes 

necessitated an aggregate sentence of 20 to 40 years; which includes

consecutive sentences. See Commonwealth v. Zirkle, 107 A.3d 127, 133 

(Pa. Super. 2014) (“We have stated that the imposition of consecutive rather 

than concurrent sentences lies within the sound discretion of the sentencing 

court.”) (citations omitted); see also McHale, 924 A.2d at 673 (“That the 

trial court on remand maintained the total aggregate length of [a]ppellant’s 

sentence . . . by imposing the remaining sentences consecutively instead of 
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concurrently does not alter the conclusion that the total aggregate length was 

not increased.”) (emphasis omitted). Thus, the record reflects that the trial 

court properly complied with Section 9721(b) by placing adequate reasons for 

Appellant’s sentence on the record, and did not abuse its discretion in 

imposing consecutive sentences.

In his fifth issue, Appellant asserts that “[42 Pa.C.S.A. §] 9781(b) and 

[Pa.R.A.P.] 2119(f) establish an unconstitutional restraint on Appellant’s 

constitutional right to an appeal,” and “asks this Court to strike down Rule 

2119(f), [Section] 9781(b), [Section] 9781(f), and overrule the case law 

surrounding the discretionary aspects of sentencing.” Appellant’s Brief at 21, 

24. In averring that Section 9781 and Rule 2119(f) violate the Pennsylvania 

Constitution, Appellant requests that we overrule our decision in 

Commonwealth v. McFarlin, 587 A.2d 732 (Pa. Super. 1991) (en banc) (Del 

Sole, J., dissenting), affirmed, 607 A.2d 730 (Pa. 1992) (per curiam), which 

held that “[Section] 9781(b) is a reasonable regulation of the right to appeal.” 

Id. at 735. Appellant suggests we adopt Judge Del Sole’s dissenting opinion, 

which argued that Section 9781(b) violated article V, section 9 of the 

Pennsylvania Constitution.5 Id. at 739. Appellant’s issue lacks merit because 

this Court has previously held that Section 9781(b) is constitutional. 

____________________________________________

5 Article V, section 9 of the Pennsylvania Constitution provides: “There shall 

be a right of appeal in all cases to a court of record form a court not of record; 

and there shall also be a right of appeal from a court of record or from an 
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“As the constitutionality of a statute presents a pure question of law, 

our standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa. Super. 2014) (citing 

Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013). “We note that duly 

enacted legislation carries with it a strong presumption of constitutionality.” 

Id. (citation omitted). “A presumption exists [t]hat the General Assembly 

does not intend to violate the Constitution of the United States or of this 

Commonwealth when promulgating legislation.” Id. (citations omitted). 

Therefore, “a statute will not be found unconstitutional unless it clearly, 

palpably, and plainly violates the Constitution.” Commonwealth v. Neiman, 

84 A.3d 603, 611 (Pa. 2013) (citation omitted). “If there is any doubt as to 

whether a challenger has met this high burden, then we will resolve that doubt 

in favor of the statute’s constitutionality.” Id. (citation omitted). 

Section 9781, in relevant part, provides: 

(b) Allowance of appeal.--The defendant or the Commonwealth 

may file a petition for allowance of appeal of the discretionary 

aspects of a sentence for a felony or a misdemeanor to the 

appellate court that has initial jurisdiction for such appeals. 

Allowance of appeal may be granted at the discretion of the 

appellate court where it appears that there is a substantial 

question that the sentence imposed is not appropriate under this 

chapter. . . . 

(f) Limitation on additional appellate review.--No appeal of 

the discretionary aspects of the sentence shall be permitted 

____________________________________________

administrative agency to a court of record or to an appellate court, the 

selection of such court to be as provided by law; and there shall be such other 

rights of appeal as may be provided by law.” 
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beyond the appellate court that has initial jurisdiction for such 

appeals. 

42 Pa.C.S.A. § 9781(b), (f). Pennsylvania Rule of Appellate Procedure 2119(f) 

reads:

(f) Discretionary aspects of sentencing. An appellant who 

challenges the discretionary aspects of sentence in a criminal 

matter shall set forth in a separate section of the brief a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of a sentence. The statement 

shall immediately precede the argument on the merits with 

respect to the discretionary aspects of the sentence. 

Id. 

Upon review, we are not persuaded by Appellant’s constitutional 

challenge to Section 9781(b).

6 Appellant concedes, Section 9781(b) has been 

explicitly held by this Court to be a “reasonable regulation upon the right to 

appeal,” and therefore “does not violate the Pennsylvania Constitution.”7 

McFarlin, 587 A.2d at 733. Our decision in McFarlin was affirmed by the 

____________________________________________

6 While Appellant challenges the constitutionality of Pa.R.A.P. 2119(f), we 

recognize that Rule 2119(f) is merely the mechanism for which Section 

9781(b) compliance is mandated. We therefore treat his fifth issue as a 

constitutional challenge to Section 9781(b). See Appellant’s Brief at 22 

(“Appellant asks this Honorable Court to find 42 Pa.C.S.A. § 9781(b) and 

Pa.R.A.P. 2119(f) unconstitutionally [restrictive on] the right to an appeal 

under Article V, § 9 of the Pennsylvania Constitution.”). 

7 Appellant’s Brief at 22 (“The majority in McFarlin held the right to appeal is 

absolute, but the limitation imposed by [Section] 9781(b) is a reasonable 

control of the exercise of the right to appeal.”) (citation omitted, underlining 

in original). 
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Pennsylvania Supreme Court in a per curiam order. Commonwealth v. 

McFarlin, 607 A.2d 730 (Pa. 1992) (per curiam). See also Commonwealth 

v. Dodge, 77 A.3d 1263, 1282 n.4 (Pa. Super. 2013) (“In a five-to-four 

decision, this Court rejected a constitutional challenge under Article V, § 9 to 

42 Pa.C.S. § 9871. Our Supreme Court affirmed, without discussion, via a 

per curiam order.”) (citations omitted). As our decision in McFarlin remains 

good law, we hold that Section 9781(b) does not violate the Pennsylvania 

Constitution and this issue does not warrant relief.8

In sum, Appellant’s claims are without merit and we affirm the judgment 

of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/16/2019

____________________________________________

8 See also Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super. 

1999) (“It is not the prerogative of an intermediate appellate court to 

enunciate new precepts of law or to expand existing legal doctrines. Such is 

a province reserved to the Supreme Court.”); Commonwealth v. Montini, 

712 A.2d 761, 769 (Pa. Super. 1998) (“[T]he Superior Court is an error 

correcting court and we are obliged to apply the decisional law as determined 

by the Supreme Court of Pennsylvania.”).