J-S09037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF

                                                       PENNSYLVANIA

                            Appellee



                       v.



DEREK WAYNE,



                            Appellant                No. 3228 EDA 2014



          Appeal from the Judgment of Sentence September 19, 2014
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0005231-2011

BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 01, 2017

        Appellant, Derek Wayne, appeals from the judgment of sentence

imposed following the revocation of his probation. Appellant’s counsel has

filed a petition to withdraw as counsel and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), asserting that the appeal is wholly frivolous.      After

careful review, we grant counsel’s petition to withdraw, and affirm

Appellant’s judgment of sentence.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       We derive the facts of the case from the trial court’s opinion and our

independent review of the certified record. On March 13, 2012, following a

bench trial, the trial court convicted Appellant of aggravated assault,

robbery, retail theft, possessing an instrument of crime, simple assault and

recklessly endangering another person.           In the course of trying to steal

merchandise from a Rite Aid on East Allegheny Avenue in Philadelphia,

Appellant cut two employees with a two–inch flip-out box cutter before the

security officer could subdue him.

       On April 24, 2012, the court imposed two concurrent terms of not less

than two years nor more than four years of incarceration, to be followed by

six years of probation, on the conviction of aggravated assault and robbery.

Appellant was paroled on May 13, 2013.

       Two months later, on July 22, 2013, Appellant was arrested in Berks

County for possessing drugs.          About five months after that, on December

11, 2013, Appellant was arrested, again in Berks County, for stealing from a

grocery store.1

       On September 19, 2014, based on the Berks County convictions, the

trial court in this case revoked Appellant’s six year probation, and imposed a

____________________________________________


1
  On May 29, 2014, Appellant entered guilty pleas in Berks County to retail
theft and to intentional possession of a controlled substance. He received a
sentence of not less than six nor more than twenty-four months’
imprisonment for the possession offense and not less than one nor more
than five years’ imprisonment for the retail theft.



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sentence of not less than one nor more than two years of incarceration on

the aggravated assault count.            The court ordered the sentence to run

consecutively to the remainder of a parole sentence and consecutive

sentences on the Berks County convictions.            (See Trial Court Opinion,

6/20/16, at 2).

       Appellant filed a timely motion for reconsideration of sentence, on

September 29, 2014.          The trial court acknowledges it did not rule on it.

(See id.). Appellant filed a timely notice of appeal, on October 20, 2014.2

       Counsel filed an Anders brief on August 11, 2016. Appellant has not

responded. The Anders brief raises four questions for our review:

             1. Did the [trial] court err in finding that [Appellant]
       violated his parole and probation, thereby justifying the
       imposition of a new sentence of incarceration?

              2. Was [Appellant’s] sentence legal?

            3. Did the [trial] court err in imposing sentence before
       [Appellant] was permitted allocution?

            4. Did the [trial] court err in not acting upon [Appellant’s]
       motion for reconsideration of sentence?

(Anders Brief, at 3).

       “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
____________________________________________


2
   Appellant timely filed a court-ordered statement of errors. The trial court
filed its opinion on June 20, 2016. See Pa.R.A.P 1925.



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2010) (citation omitted).      In order to withdraw pursuant to Anders,

“counsel must file a brief that meets the requirements established by our

Supreme Court in Santiago, [supra] at 361.” Commonwealth v. Harden,

103 A.3d 107, 110 (Pa. Super. 2014) (citation omitted).          Specifically,

counsel’s Anders brief must comply with the following requisites:

            (1) provide a summary of the procedural history and facts,
      with citations to the record;

           (2) refer to anything in the record that counsel believes
      arguably supports the appeal;

             (3) set forth counsel's conclusion that the appeal is
      frivolous; and

             (4) state counsel’s reasons for concluding that the appeal
      is frivolous. Counsel should articulate the relevant facts of
      record, controlling case law, and/or statutes on point that have
      led to the conclusion that the appeal is frivolous.

Id. (citation omitted).

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his client.”   Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa.

Super. 2014).

      The brief must be accompanied by a letter that advises the client of

the option to “(1) retain new counsel to pursue the appeal; (2) proceed pro

se on appeal; or (3) raise any points that the appellant deems worthy of the

court’s attention in addition to the points raised by counsel in the Anders

brief.”   Id. (citation omitted).   “Once counsel has satisfied the above


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requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928

A.2d 287, 291 (Pa. Super. 2007) (en banc) (citation omitted).

      Instantly, we conclude that counsel has substantially complied with the

technical requirements of Anders and Santiago. Counsel has identified the

pertinent factual and procedural history and made citation to the record.

Counsel has also raised a sentencing claim that could arguably support an

appeal, but ultimately concludes that the appeal is wholly frivolous.

      Counsel has also attached to his petition a copy of a letter sent to

Appellant, which included a copy of the brief, which meets the notice

requirements of Millisock.     Accordingly, we now proceed to conduct an

independent review of the record to determine whether this appeal is wholly

frivolous.

      Preliminarily, we note that the only question which was properly

preserved for review in the Rule 1925(b) statement of errors is the second

one, legality of sentence.    (See Statement of Errors Complained of on

Appeal, 6/01/15; Corrected Statement of Errors Complained of on Appeal,

6/03/15).

      However, it would not merit relief.    See Commonwealth v. Ware,

737 A.2d 251, 253 (Pa. Super. 1999), appeal denied, 747 A.2d 900 (Pa.

1999) (holding court had authority to revoke appellant’s probation despite


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fact that, at time of revocation of probation, appellant had not yet begun to

serve probationary portion of split sentence and even though offense on

which revocation of probation was based occurred during parole period and

not probationary period). All of Appellant’s remaining questions are waived.

Moreover, they would not merit relief.

         First, the trial court did not err in finding that Appellant violated his

parole and probation, by his new offenses, justifying imposition of a new

sentence of incarceration.       See 42 Pa.C.S.A. § 9771(a)-(c) (court may

terminate continued supervision on proof, inter alia, that defendant has

committed another crime); see also Commonwealth v. Pasture, 107 A.3d

21, 27–28 (Pa. 2014) (upon revoking probation, trial court limited only by

maximum sentence it could have imposed originally at time of probationary

sentence; once probation is revoked, court shall not impose sentence of total

confinement unless it finds, inter alia, that defendant has been convicted of

another crime). The first issue would not merit relief.

         On the third issue, the notes of testimony confirm that, contrary to the

allegation of denial of allocution, the sentencing court did not impose

sentence until Appellant had an opportunity to allocute and was heard by the

court.     (See N.T. Violation of Probation, 9/19/14, at 15-16).       Appellant’s

third claim would not merit relief.

         In the fourth and final claim, the Anders brief assigns error to the trial

court for not acting on Appellant’s motion for reconsideration of sentence.


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(See Anders Brief, at 3, 14-16). The sentencing court concedes that it did

not rule on the petition to vacate. (See Trial Ct. Op., at 2).

       Defense counsel maintains that the petition to vacate and reconsider

sentence consists of only a bald allegation of excessiveness. (See Anders

Brief, at 15; see also Petition to Vacate and Reconsider Sentence, 9/29/14).

Counsel argues that the petition would not support a review of the

discretionary aspects of sentence because it fails to present a substantial

question. (See Anders Brief, at 15). Similarly, the Commonwealth argues

that the petition to vacate was only a bald claim of excessiveness and was

properly rejected. (See Commonwealth’s Brief, at 11).

       It is certainly true that the petition to vacate presents, in essence, no

more than a boilerplate allegation that the sentence imposed “was excessive

in that it far surpassed what was required to protect the public, the

complainant, or the community, and was well beyond what was necessary to

foster the defendant’s rehabilitation.” (Petition to Vacate, at 2 ¶ 6).

       In any event, as noted by the Commonwealth, the violation of

probation court did not act improperly in allowing Appellant’s motion to

reconsider to be denied as a matter of law.3 (See Commonwealth’s Brief, at

5, 10-11).

____________________________________________


3
  See Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super. 1998)
(pursuant to Pa.R.Crim.P. 708, trial court divested of jurisdiction to enter
order denying appellant’s motion to modify his sentence after appeal;
(Footnote Continued Next Page)


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      [W]hen an excessiveness claim is raised in cases where the
      sentence falls within the statutory limits, this Court is to review
      each claim on a case-by-case basis to determine whether a
      substantial question has been presented. The Supreme Court
      explained that while we need not accept bald allegations of
      excessiveness, where the appellant has provided a plausible
      argument that a sentence is contrary to the Sentencing Code or
      the fundamental norms underlying the sentencing process, a
      substantial question exists, requiring a grant of allowance of
      appeal of the discretionary aspects of the sentence.

Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003) (citation

omitted).

      Here, we conclude that the record does not support a finding that

there is a plausible argument that the sentence is contrary to the Sentencing

Code or the fundamental norms underlying the sentencing process.

      At the time of the revocation hearing, Appellant already had a record

of twenty-four convictions for similar offenses. Within months of release on

probation after the convictions at issue here, he committed two new

offenses.    Appellant’s record confirmed that he was not amenable to

rehabilitation.   There is no basis either in the record or under controlling

authority for the claim that Appellant’s sentence was illegal or that it was

excessive.   On independent review, we find no other non-frivolous claims

which could be raised on appeal.

      Judgment of sentence affirmed. Petition to withdraw granted.
                       _______________________
(Footnote Continued)

sentencing court has only thirty days from imposition of sentence to modify
sentence).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2017




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