Com. v. Tillman, R.

J. S47038/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RONRON TILLMAN, : No. 2548 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 27, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0013603-2013
BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 21, 2017
Ronron Tillman appeals from the judgment of sentence of March 27,
2015, following his conviction of third-degree murder, attempted murder,
and possession of firearm prohibited.1 Appointed counsel, Andres Jalon,
Esq., has petitioned to withdraw and filed an Anders brief.2 After careful
review, we grant the petition to withdraw and affirm the judgment of
sentence.
The salient facts have been aptly summarized by the trial court as
follows:
[Appellant] pled guilty to the above-mentioned
charges based on the following facts. See N.T.
1
18 Pa.C.S.A. §§ 2502(c), 901(a), and 6105(a)(1), respectively.
2
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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12/08/14, pp. 43-49. On July 22, 2013, sometime
before 5:30 p.m., sixteen-year-old Anthony Gonzalez
was walking to his grandmother’s house when he
was assaulted by a group of individuals who took his
cell phone near the intersections of Palethorp and
Huntingdon Streets in Philadelphia. Anthony
Gonzalez continued on to his grandmother’s house
and told his family about this incident. After
informing his family of this incident, Anthony
Gonzalez returned to Palethorp and Huntingdon
Streets with his uncle Rafael Gonzalez, Sr., his
cousin Rafael Gonzalez, Jr., and other members of
his family. Upon the group’s arrival at the location,
Anthony Gonzalez encountered seventeen-year[-]old
Wilfredo Ramos, and the two young men began to
fistfight. At some point, a larger group of people
became involved in this fistfight.
[Appellant] was associated with the group of
individuals that hung out on the corner of Palethorp
and Huntingdon Streets. During this incident,
[appellant] pulled out a handgun and shot Rafael
Gonzalez, Sr., who fell to the ground. The bullet
entered Mr. Gonzalez’s buttock and shattered his left
femur and his sacrum. He was subsequently
transported by family members to Episcopal
Hospital, and from there to the trauma center at
Temple Hospital due to the critical nature of his
injuries. Mr. Gonzalez was treated at Temple
Hospital, where he remained until his discharge on
July 29, 2013. One bullet fragment was recovered
from Mr. Gonzalez’s body, but the bullet fragments
in his sacrum and coccyx remained because they
could not be removed.
The crowd dispersed following the shooting.
Anthony Pizarro Lopez, who was associated with
Anthony Gonzalez, ran down Huntingdon Street and
turned right on North 2nd Street, the very next
street. However, [appellant] chased Mr. Lopez and
continued to fire his gun at him. Mr. Lopez was
struck two times, once in his right thigh and once in
his right chest. As a result, he collapsed to the
ground on North 2nd Street. Local residents
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attended to him until he was transported to Temple
Hospital in critical condition. Based on the nature of
his injuries, doctors removed Mr. Lopez’s right lung.
However, despite medical care Mr. Lopez died on
July 29, 2013 at the hospital. Dr. Marlon Osbourne,
a forensic pathologist, examined Mr. Lopez’s body
and found that he had suffered a gunshot wound to
the chest. The bullet perforated his right lung and
his ninth thoracic vertebra. Dr. Osbourne concluded
to a reasonable degree of medical certainty that the
cause of Mr. Lopez’s death was ventilator dependent
respiratory failure resulting from the gunshot wound.
He further concluded to a reasonable degree of
medical certainty that the manner of death was
homicide. At the time of his death, Mr. Lopez was
twenty-five (25) years old. At least five (5)
eyewitnesses identified [appellant] as the shooter.
As of July 22, 2013 [appellant] was prohibited
from possessing a firearm because of his prior felony
convictions. On February 13, 2013, [appellant] was
convicted of possession with intent to deliver
marijuana, at CP-51-CR-0009175-2012. On that
same date, he was also convicted of possession with
intent to deliver cocaine and heroin, at CP-51-CR-
0000031-2013. Further, he also had prior
convictions, at CP-51-CR-0000568-2013, for
possession with intent to deliver crack cocaine and
criminal conspiracy. Although [appellant] had been
sentenced on these convictions, he was in bench
warrant status on July 22, 2013.
Trial court opinion, 5/13/16 at 2-3.
On December 8, 2014, appellant pled guilty to the above charges. In
exchange for his plea, the Commonwealth nolle prossed additional charges
including first-degree murder. (Notes of testimony, 12/8/14 at 38.) It was
an open guilty plea with no agreement as to sentencing.
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On March 27, 2015, appellant was sentenced to 20 to 40 years’
incarceration for third-degree murder, 10 to 20 years for attempted murder,
and 5 to 10 years for the firearms violation, run consecutively for an
aggregate sentence of 35 to 70 years. Appellant filed a timely motion for
reconsideration of sentence on April 1, 2015, asking for concurrent
sentences. That motion was denied by operation of law pursuant to
Pa.R.Crim.P. 720(B)(3)(a) on July 28, 2015. A timely notice of appeal was
filed on August 19, 2015. On August 31, 2015, appellant was ordered to file
a concise statement of errors complained of on appeal within 21 days
pursuant to Pa.R.A.P. 1925(b). Appellant failed to comply, but the trial court
filed a Rule 1925(a) opinion on May 13, 2016, addressing any cognizable
issues on appeal.
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
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. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
(1) provide a summary of the procedural
history and facts, with citations to the
record;
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(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., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney Jalon has complied with all of the
above requirements. In addition, Attorney Jalon served appellant with a
copy of the Anders brief and advised him of his right to proceed pro se or
hire a private attorney to raise any additional points he deemed worthy of
this court’s review. Appellant has not responded to counsel’s motion to
withdraw. As we find the requirements of Anders and Santiago are met,
we will proceed to the issues on appeal.3
3
As described above, Attorney Jalon failed to comply with the trial court’s
Rule 1925 order, which is considered per se ineffectiveness of counsel and
ordinarily this court would have to remand for a supplemental trial court
opinion. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal case was
ordered to file a Statement and failed to do so, such that the appellate court
is convinced that counsel has been per se ineffective, the appellate court
shall remand for the filing of a Statement nunc pro tunc and for the
preparation and filing of an opinion by the judge.”); see also
Commonwealth v. Thompson, 39 A.3d 335, 340 n.11 (Pa.Super. 2012)
(“Under Rule 1925(c)(3), the remedy for per se ineffectiveness in criminal
cases is no longer collateral relief, but to remand to the trial court, either for
the filing of a Rule 1925(b) statement nunc pro tunc or the filing of a
Rule 1925(a) opinion addressing the issues raised in an untimely 1925(b)
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Counsel raises one issue for review on appeal, whether appellant’s
sentence of 35 to 70 years’ incarceration was an abuse of discretion.
(Anders brief at 12-13.) However, counsel has failed to attach the requisite
Pa.R.A.P. 2119(f) statement to his brief. It is established that even in the
Anders context, the Rule 2119(f) statement is required with respect to
discretionary sentencing challenges. Commonwealth v. Wilson, 578 A.2d
523, 525 (Pa.Super. 1990). Nevertheless, because this court has a duty to
independently review the record to determine whether, in fact, the appeal is
wholly frivolous, we will examine the merits of the issue. Id.;
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (Anders
requires review of issues otherwise waived on appeal); Commonwealth v.
Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001) (addressing the merits of
the appellant’s discretionary aspects of sentencing challenge even though
counsel failed to comply with the trial court’s Rule 1925 order; “Anders
statement.”), citing Commonwealth v. Burton, 973 A.2d 428, 432-433
(Pa.Super. 2009) (en banc). Nevertheless, it is not necessary to remand in
this case where the trial court has addressed any potential issues to be
raised on appeal in a substantive Rule 1925(a) opinion. (Trial court opinion,
5/13/16 at 4-7.) To remand for the trial court to further consider claims
that counsel has already deemed frivolous would serve little purpose.
Compare Burton, 973 A.2d at 433 (holding remand is not necessary where
trial court addressed issues in untimely Rule 1925(b) statement). In the
same vein, to remand for a Rule 1925(b) statement nunc pro tunc would
be pointless because counsel would simply file a statement of intent to file
an Anders brief under Rule 1925(c)(4). See Pa.R.A.P. 1925(c)(4) (“In a
criminal case, counsel may file of record and serve on the judge a statement
of intent to file an Anders/McClendon brief in lieu of filing a Statement.”).
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requires that we examine the issues to determine their merit.” (emphasis in
original)).
A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a
matter of right. Commonwealth v. Hunter, 768
A.2d 1136 (Pa.Super. 2001)[,] appeal denied, 568
Pa. 695, 796 A.2d 979 (2001). When challenging
the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement
demonstrating that there is a substantial question as
to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal
‘furthers the purpose evident in the Sentencing Code
as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors
impinging on the sentencing decision to exceptional
cases.’” Commonwealth v. Williams, 386
Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
(en banc) (emphasis in original).
Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).
Appellant entered an open guilty plea following a thorough
on-the-record plea colloquy. Appellant also executed a written plea
colloquy. In exchange for appellant’s plea, the Commonwealth withdrew
numerous charges including first-degree murder and aggravated assault.
Appellant faced a maximum sentence of 45 to 90 years in prison. (Notes of
testimony, 12/8/14 at 31, 42.)
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The sentencing court had the benefit of a PSI report. (Notes of
testimony, 12/8/14 at 55-56.)4 “Our Supreme Court has ruled that where
pre-sentence reports exist, the presumption will stand that the sentencing
judge was both aware of and appropriately weighed all relevant information
contained therein.” Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super.
2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S.
1148 (2005), citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988). To the extent that appellant argues the trial court abused its
discretion in making his sentences consecutive, he does not raise a
substantial question for this court’s review. “In imposing a sentence, the
trial judge may determine whether, given the facts of a particular case, a
sentence should run consecutive to or concurrent with another sentence
being imposed.” Commonwealth v. Perry, 883 A.2d 599, 603 (Pa.Super.
2005) (citations omitted). Appellant falls well short of raising a “substantial
question” for our review with respect to the trial court’s exercise of its
sentencing discretion. There is simply nothing to review here.
For the reasons discussed above, we determine that appellant’s issue
on appeal is wholly frivolous and without merit. Furthermore, after our own
4
The March 27, 2015 sentencing transcript does not appear anywhere in the
record, nor is there any indication that it was requested by appellant
pursuant to Pa.R.A.P. 1911(a). However, as appellant’s discretionary
sentencing issue is plainly without merit and appellant has not responded to
counsel’s withdrawal petition, we deem it unnecessary to remand for
appellant to obtain the transcript.
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independent review of the record, we are unable to discern any additional
issues of arguable merit. Therefore, we will grant Attorney Jalon’s petition
to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2017
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