Com. v. Wallace, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALONZO WALLACE,
Appellant No. 1116 EDA 2016
Appeal from the Judgment of Sentence of February 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008101-2014
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 17, 2017
Appellant, Alonzo Wallace, appeals from the judgment of sentence
entered on February 17, 2016, following his jury trial convictions for two
counts of aggravated assault, burglary, robbery, conspiracy to commit
robbery, and carrying a firearm without a license.1 In this direct appeal,
Appellant’s court-appointed counsel filed both a petition to withdraw as
counsel and an accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We conclude that Appellant’s counsel complied with the procedural
requirements necessary for withdrawal. Moreover, after independently
reviewing the record, we conclude that the instant appeal is wholly frivolous.
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1
18 Pa.C.S.A. §§ 2702, 3502, 3701, 903, and 6106, respectively.
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We therefore grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Because counsel filed a statement of his intent to file an Anders brief
pursuant Pa.R.A.P. 1925(c)(4), the trial court did not prepare an opinion
pursuant to Pa.R.A.P. 1925(a). The trial court, however, did prepare a
thorough and well-written opinion to this Court with respect to co-defendant,
Quadir Jeffries, a case on direct appeal assigned to this same panel. Our
disposition of Jeffries’ appeal quoted at length the trial court’s summary of
the underlying facts of this case, as follows:
In early January[] 2014, [R.M.] was working as a pizza
delivery driver. At some point in early January 2014, [R.M.]
was driving his vehicle when he noticed a woman, later
identified as Kimberly Cook, walking down the street near
54th Street and Lansdown Avenue in Philadelphia. [R.M.]
honked his horn at Cook and pulled over his vehicle to talk
with her, hoping to exchange phone numbers and meet with
her later. At this time, Cook identified herself as “Zah.”[fn.1]
While [R.M.] and Cook were talking and exchanging phone
numbers, Cook noticed that [R.M.] had an amount of
[United States] currency on the passenger side floor of his
vehicle.
[fn.1] Cook was also identified as “Zamirah Johnson.”
After meeting [R.M.], Cook told her boyfriend, co-defendant
Hakim Blatch, about the meeting and asked Blatch to rob
[R.M.]. Blatch agreed and arranged to have co-defendants
Quadir Jeffries and [Appellant] aid in the robbery. The plan
was for Cook to accompany [R.M.] to his house, while
Blatch, [Appellant], and Jeffries followed in a separate car.
Cook would then open the door for Blatch, [Appellant], and
Jeffries to enter and rob [R.M.].
On January 18, 2014, Cook called [R.M.] under the false
pretense of meeting [R.M.] to have sex. Cook arranged to
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have [R.M.] pick her up near 56th Street and Lansdown
Avenue later that evening. Cook, Blatch, [Appellant], and
Jeffries then headed to 56th Street and Lansdown Avenue in
Jeffries’ car. Also with them was Cook’s friend, Crystal
Collins. Cook wished to have Collins present with her, as
Cook did not know [R.M.] and was nervous about meeting
him alone. Blatch, Jeffries, and [Appellant] waited in
Jeffries’ car around the corner from where [R.M.] was
waiting while Cook and Collins exited the vehicle and met
with [R.M.].
[R.M.] arrived at the corner of 56th Street and Lansdown
Ave[nue] and waited for approximately 45 minutes before
Cook arrived, accompanied by Collins. [R.M.] had both
women get into his car and drove to his apartment on the
4200 block of North 7th Street in Philadelphia. While [R.M.]
was driving, Cook was texting Blatch, providing directions
as to where [R.M.] was driving and the address at which
they stopped.
Upon arriving at [R.M.’s] apartment, [R.M.], Cook, and
Collins went inside and had a conversation about sex. While
they were talking, Blatch, Jeffries, and [Appellant] arrived
at [R.M.’s] apartment, finding the outside door locked, and
Blatch texted Cook to tell her to open the door. At this
time, Cook asked if she could go outside to smoke a
cigarette, and [R.M.] gave her the keys to his car, telling
her that he had a lighter inside of it. Cook then went
downstairs and opened the door for Jeffries and [Appellant]
to enter the building and directed them to [R.M.’s]
bedroom. Jeffries and [Appellant] entered the building and
went upstairs while Cook went to the street corner,
throwing away [R.M.’s] keys, where she was later joined by
Collins. As Collins left the building, Blatch entered.
After letting Cook out of the apartment and watching her go
down the steps, [R.M.] closed his door, only to reopen it
and see men rushing up the steps. [R.M.] attempted to
close his door, but Jeffries and [Appellant] kicked the door
in, forcing [R.M.] to the ground. While [R.M.] was on the
ground, Jeffries and [Appellant] pistol whipped him with
handguns while demanding that [R.M.] tell them where the
money was, and threatening to shoot him. Blatch joined
Jeffries and [Appellant] while they were beating [R.M.]. The
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assailants rummaged through [R.M.’s] room looking for
cash, and found a cookie tin with marijuana and cash. They
failed to find the large sum of cash that was in [R.M.’s]
pocket.
[M.S.], who lived in the apartment across from [R.M.],
heard the commotion and opened his door to see what was
happening. [M.S.] saw two men standing in [R.M.’s] broken
doorway. [Appellant], noticing [M.S.] open the door, turned
towards [M.S.] and shot at him. Closing the door as
[Appellant] turned, [M.S.] ducked and was shot through the
door, with the bullet striking his left arm. Had [M.S.] not
ducked, the bullet would have struck [M.S.] in his heart. As
the three robbers left the apartment building, Jeffries fired a
shot at a security camera inside the front door.
Hearing the assailants leave, [R.M.] checked on [M.S.] while
[M.S.] called the police. Police responded and were let into
the house by [R.M.]. [M.S.] and [R.M.] were transported to
Temple University Hospital for medical treatment.
Police recovered one [nine-millimeter] fired cartridge case
and one [40 caliber] fired cartridge case from the first floor
hallway of the home. Police also recovered the video tapes
of the home surveillance system that covered the front
entryway into the building. The inside camera appeared to
be damaged by a gunshot. After his release from the
hospital, [M.S.] found the [40 caliber] bullet that had struck
him in his room and gave that bullet to the landlord, who
turned it over to police.
Later [on the night of the shooting], Blatch, Cook, Collins,
[Appellant], and Jeffries all met at a speakeasy on Jackson
and Taney Streets. While the group was together, they
discussed [Appellant] shooting [M.S.] and Jeffries shooting
out the camera. At this time, Blatch stated that [Appellant]
and Jeffries had already pistol-whipped [R.M.] by the time
Blatch got upstairs. Jeffries gave Collins some money at the
speakeasy while Blatch gave Cook some marijuana.
Police provided the media with a copy of the surveillance
video, in an effort to get public help in identifying the
robbers. Deputy Sheriff Martin Samuels, who knew both
Blatch and Jeffries from his time patrolling the area,
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watched the video of the assault and identified Blatch and
Jeffries as two of the perpetrators. Police also conducted an
analysis of the phone [R.M.] had used to contact Cook, and
from that, were able to identify Cook as a suspect in the
case. Police put Cook’s photo in a photo array and showed
it to [R.M.], who identified Cook as the person he stopped
on the street and who set him up for the robbery.
Jeffries was arrested on February 23, 2014. Police made
several efforts to locate Blatch and Cook in February and
March 2014, but were unable to locate them. Blatch and
Cook were arrested on June 4, 2014. [Appellant] was
arrested on June 11, 2014. After her arrest, Cook provided
a statement to police, detailing her involvement in the
robbery. Cook also identified Blatch, [Appellant], and
Jeffries to police. A cell phone tower analysis of the location
of Blatch’s cell phone on the night of the robbery
corroborated Cook’s statement to the police regarding the
events surrounding the robbery.
Commonwealth v. Jeffries, 880 & 1111 EDA 2016, at 2-5 (internal
citations and some internal footnotes omitted).
The Commonwealth charged Appellant with the aforementioned
crimes, as well as attempted murder. On December 10, 2015, a jury found
Appellant not guilty of attempted murder, but convicted him of the
remaining offenses. On February 17, 2016, the trial court sentenced
Appellant to an aggregate term of 30 to 60 years of imprisonment. More
specifically, pursuant to 42 Pa.C.S.A. § 9714,2 the trial court sentenced
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2
“Any person who is convicted in any court of this Commonwealth of a
crime of violence shall, if at the time of the commission of the current
offense the person had previously been convicted of a crime of violence, be
sentenced to a [mandatory] minimum sentence of at least ten years of total
confinement.” 42 Pa.C.S.A. § 9714.
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Appellant to mandatory, consecutive sentences of 10-20 years for each of
the aggravated assault convictions and the robbery conviction. The trial
court also imposed concurrent sentences of imprisonment of five to 10 years
for burglary, three to six years for conspiracy, and three-and-one-half to
seven years for carrying a firearm without a license. Appellant filed a timely
post-sentence motion for reconsideration. On April 4, 2016, the trial court
denied relief. This timely appeal resulted.3
Before we begin our substantive analysis, we must first review
counsel's Anders brief and motion to withdraw. Commonwealth v.
Bennett, 124 A.3d 327, 330 (Pa. Super. 2015) (citation omitted). Prior to
withdrawing as counsel on a direct appeal under Anders, counsel must file a
brief that meets the requirements established by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). The brief must:
(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
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3
Appellant filed a notice of appeal on April 12, 2016. On April 14, 2016,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court
granted a requested extension to file a concise statement. On June 6, 2016,
counsel for Appellant filed a statement of his intent to file an Anders brief
pursuant Pa.R.A.P. 1925(c)(4). On June 9, 2016, the trial court entered an
order transmitting the record to this Court without filing an opinion.
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(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.
Santiago, 978 A.2d at 361.
Counsel must also provide a copy of the Anders brief with a letter that
advises his client of his right 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.” Bennett, 124 A.3d at 330 (citation
omitted).
Here, counsel has fulfilled all of the abovementioned procedural
requirements. Appellant has not filed a pro se response to counsel’s petition
to withdraw.4 Because all of the technical requirements of
Anders/Santiago have been met, we proceed to examine the issues
identified in the Anders brief.
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4
Instead, Appellant filed a pro se motion requesting case-related documents
on February 16, 2017. Therein, Appellant alleges that trial counsel “failed to
forward certain parts of the certified record” to him so that he could “mount
any defense [] to [the] Anders brief.” Pro Se Motion for Documents,
2/16/2017, at ¶¶ 1-2. As will be explained at length infra, Appellant is
entitled to the documentation for future pro se litigation. However, because
the request was untimely, we will not grant additional time to file a pro se
response to the Anders brief with this Court.
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The first issue raised in the Anders brief is a challenge to the
sufficiency of the evidence on all of Appellant’s convictions. We will examine
each conviction in turn.
Our standard of review is well-established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(citation omitted).
Regarding conspiracy, we have concluded:
To convict of criminal conspiracy, the evidence must
establish that the defendant entered an agreement with
another person to commit or aid in the commission of an
unlawful act, that the conspirators acted with a shared
criminal intent, and that an overt act was done in
furtherance of the conspiracy. 18 Pa.C.S.A. § 903. An
explicit or formal agreement to commit crimes can seldom,
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if ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities. An agreement
sufficient to establish a conspiracy can be inferred from a
variety of circumstances including, but not limited to, the
relation between the parties, knowledge of and participation
in the crime, and the circumstances and conduct of the
parties surrounding the criminal episode.
Once a conspiracy is established, the actions of each
co-conspirator may be imputed to the other conspirators.
In this regard, the law in Pennsylvania is settled that each
conspirator is criminally responsible for the actions of his
co-conspirator, provided that the actions are accomplished
in furtherance of the common design.
Furthermore, where the existence of a conspiracy is
established, the law imposes upon a conspirator full
responsibility for the natural and probable consequences of
acts committed by his fellow conspirator or conspirators if
such acts are done in pursuance of the common design or
purpose of the conspiracy.
Commonwealth v. Geiger, 944 A.2d 85, 90–91 (Pa. Super. 2008) (case
citations and quotations omitted).
“A person is guilty of robbery if, in the course of committing a theft, he
[] inflicts serious bodily injury upon another [or] threatens another with or
intentionally puts him in fear of immediate serious bodily injury[.]” 18
Pa.C.S.A. § 3701(a)(1)(i)-(ii). Serious bodily injury is statutorily defined as
“[b]odily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.
Here, there was ample evidence of a robbery and conspiracy to
commit robbery. Appellant and his co-defendants engaged Cook to lure the
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victim into believing he would engage in sex with Cook, so they could rob
him. The three co-defendants clearly worked in concert, following the victim
in a car together, rushing the victim’s stairs and breaking down his door,
brandishing firearms and demanding money, taking marijuana and money
after pistol-whipping the victim, fleeing in unison, damaging a surveillance
camera to avoid apprehension, and then distributing the proceeds of the
robbery. Cook testified that Appellant was involved in the conspiracy and
detailed each co-conspirator’s role. N.T., 12/7/2015, at 66-119. The jury
saw video taken from the apartment’s surveillance system of the three men
working together before, during, and after the crimes. N.T., 12/8/2015, at
93-113. Moreover, the victim testified that all three co-defendants beat him
and stole money and drugs from him. N.T., 12/3/2015, at 219-221. We find
this evidence sufficient to support Appellant’s conspiracy and robbery
convictions.
“A person is guilty of aggravated assault if he [] attempts to cause
serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702. We have
found:
To obtain a conviction for aggravated assault when the
victim sustained serious bodily injury, the Commonwealth
must establish that the offender acted intentionally,
knowingly, or with a high degree of recklessness that
included an element of deliberation or conscious disregard
of danger. At a minimum, the Commonwealth must prove
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that the offender acted with malice, consciously
disregarding an unjustified and extremely high risk that his
actions might cause death or serious bodily harm. In other
words, a defendant must display a conscious disregard for
almost certain death or injury such that it is tantamount to
an actual desire to injure or kill; at the very least, the
conduct must be such that one could reasonably anticipate
death or serious bodily injury would likely and logically
result.
Commonwealth v. Faulk, 928 A.2d 1061, 1070 (Pa. Super. 2007). Here,
Appellant and his co-defendants used their firearms to inflict multiple blows
to the victim’s face and head. N.T., 12/3/2015, at 219-221. Appellant also
fired a shot through the apartment door of the victim’s neighbor. More
specifically, the neighbor testified that he cracked his front door open and
saw Appellant turn towards him while holding a firearm. The neighbor
instinctively closed the door and ducked, but the bullet struck him in the
arm. Id. at 140-145. In both instances, one could reasonably anticipate
death or serious bodily injury would likely and logically result from
Appellant’s conduct. Hence, there was sufficient evidence to support
Appellant’s two convictions for aggravated assault.
A person is guilty of burglary if he or she enters a building or occupied
structure with the intent to commit a crime therein, unless he is licensed or
privileged to enter. See 18 Pa.C.S.A. § 3502(a). Here, the victim testified
that he saw the three co-defendants rush towards him up the stairs and that
when the victim “tried to close [his] door, [the co-defendants] kicked it in.”
N.T., 12/3/2015, at 219. The door came off its hinges and landed on top of
the victim. Id. Clearly, Appellant was not privileged to enter the victim’s
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residence. Once inside, as detailed above, Appellant committed aggravated
assault and robbed the victim.5 Accordingly, the Commonwealth provided
sufficient evidence that Appellant committed burglary.
Finally, “any person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person, except in his place
of abode or fixed place of business, without a valid and lawfully issued
license” is guilty of carrying a firearm without a license. 18 Pa.C.S.A.
§ 6106. The Commonwealth entered into evidence a certificate of
nonlicensure, showing Appellant did not have a license to carry a firearm.
N.T., 12/8/2015, at 230. As previously discussed, there was ample evidence
that Appellant was carrying, and in fact fired, a firearm on the day in
question. Hence, Appellant’s firearm conviction was properly supported.
Next, Appellant asserts that his convictions were against the weight of
the evidence. The standard of appellate review for a claim that the verdict
was against the weight of the evidence is limited to a determination of
whether the trial court abused its discretion in denying the appellant's
post-sentence motion i.e. that the fact finder's verdict “shocked the
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5
We note that because Appellant’s convictions for robbery and aggravated
assault were felonies, there was no trial court error in sentencing Appellant
for burglary and the offenses committed inside the victim’s apartment. See
18 Pa.C.S.A. § 3502(d) (“A person may not be sentenced both for burglary
and for the offense which it was his intent to commit after the burglarious
entry or for an attempt to commit that offense, unless the additional offense
constitutes a felony of the first or second degree.”).
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conscience.” Commonwealth v. Lloyd, 878 A.2d 867, 872 (Pa. Super.
2005). Here, the verdict is not shocking. Thus, we discern the trial court
did not abuse its discretion when it entered an order on April 4, 2016
denying Appellant post-sentence relief on his weight of the evidence claim.
Finally, Appellant presents two interrelated discretionary aspects of
sentencing claims. Appellant claims the trial court abused its discretion by
imposing consecutive sentences, which in turn resulted in an excessive
combined term of imprisonment amounting to a life sentence for Appellant.
Appellant’s Brief at 23-28.
We have previously determined:
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. An appellant must satisfy
a four-part test to invoke this Court's jurisdiction when
challenging the discretionary aspects of a sentence. We
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether
the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is
a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (internal
citations and brackets omitted).
Here, Appellant complied with the first three aforementioned
requirements. However, we conclude that Appellant’s challenge to the
imposition of consecutive sentences does not raise a substantial question.
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“Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same
time or to sentences already imposed. Any challenge to the
exercise of this discretion ordinarily does not raise a
substantial question.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa. Super. 2011). See Commonwealth v.
Hoag, 665 A.2d 1212 (Pa. Super. 1995) (stating an
appellant is not entitled to a “volume discount” for his
crimes by having all sentences run concurrently). In fact,
this Court has recognized “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.”
Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.
Super. 2012) (en banc) (citation omitted). That is “in our
view, the key to resolving the preliminary substantial
question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what
appears upon its face to be, an excessive level in light of
the criminal conduct at issue in the case.” Prisk, 13 A.3d
at 533 (quoting [Commonwealth v.] Mastromarino, 2
A.3d [581,] 587 [(Pa. Super. 2010)]) (quotation marks
omitted).
Commonwealth v. Austin, 66 A.3d 798, 808–809 (Pa. Super. 2013).
Here, Appellant committed six violent felonies and injured two
separate victims. The trial court was required to impose mandatory
minimum sentences pursuant to 42 Pa.C.S.A. § 9714.6 Appellant’s challenge
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6
Upon independent review, we also conclude that Appellant’s sentence
under Section 9714 was legal. See Commonwealth v. Furness, 2016 WL
7406808, at *6 (Pa. Super. 2016) (“Section 9714 is not unconstitutional
because it increases mandatory minimum sentences based on prior
convictions.”). We note, however, that the Pennsylvania Supreme Court
recently granted an allowance of appeal to consider the constitutionality of
mandatory minimum sentences imposed pursuant to Section 9714. See
Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super. 2016), appeal
(Footnote Continued Next Page)
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to the consecutive nature of those sentences does not, in and of itself,
present a substantial question. Moreover, the trial court did not impose all
of Appellant’s sentences consecutively; three sentences were imposed
concurrently. Accordingly, Appellant’s challenge to his aggregate sentence
essentially amounts to a request for a volume discount. In light of the
criminal conduct at issue in this matter, however, we do not find the
consecutively imposed sentence raised the aggregate sentence to an
excessive level. Thus, Appellant fails to present a substantial question for
our review.
Regardless, assuming Appellant had presented a substantial question,
Appellant is not entitled to relief. We review sentencing for an abuse of
discretion. Austin, 66 A.3d at 809 (citation omitted). Here, the trial court,
had the benefit of a presentence investigation report, the sentencing
guidelines, and mitigating evidence presented by defense counsel prior to
imposing sentence. N.T., 2/17/2016, at 17-23; see also Commonwealth
v. Bonner, 135 A.3d 592, 605 (Pa. Super. 2016) (Where a presentence
investigation report exists, we presume that the trial court was aware of
relevant information regarding the defendant's character and weighed those
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(Footnote Continued)
granted, 143 A.3d 890 (Pa. 2016). Until our Supreme Court renders a
decision in Bragg, we are bound by our prior finding that Section 9714 is
constitutional. See Commonwealth v. Slocum, 86 A.3d 272, 278 n.9 (Pa.
Super. 2014) (“This Court is bound by existing precedent under the doctrine
of stare decisis and continues to follow controlling precedent as long as the
decision has not been overturned by our Supreme Court.”).
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considerations along with mitigating statutory factors. A presentence
investigation report constitutes the record and speaks for itself.). The trial
court recognized that Appellant was a repeat offender, having been arrested
33 times (24 adult arrests and 9 juvenile arrests). N.T., 2/17/2016, at 18.
The trial court then fully and adequately set forth the reasons for its
sentence on the record. Id. at 17-23. Thus, even if we reached the merits
of Appellant’s discretionary aspects of sentencing claims, we would discern
no abuse of discretion.
On a final note, we address Appellant’s motion for documents, which
as previously discussed, Appellant filed with this Court on February 16,
2017. Initially, we recognize that “[i]f, [] an Anders brief is filed, the
defendant should be permitted to present his issues to the Court prior to the
final disposition of the appeal. Otherwise, the requirement of notifying the
client of his right to do so would be a pointless exercise.” Commonwealth
v. Baney, 860 A.2d 127, 130 (Pa. Super. 2004). However, in Baney, we
also determined,
[when] an attorney files an Anders brief, it is akin to the
defendant being without counsel, since the attorney has not
made any argument on his behalf, but has merely flagged
“potential” issues. Therefore, the following is the
appropriate procedure:
1. The Superior Court should initially consider only
the Anders brief to determine whether the issues
are in fact wholly frivolous.
2. If the Court determines that the issues are not
wholly frivolous, it should grant relief accordingly.
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3. If it finds the issues in the Anders brief to be
wholly frivolous, the Court should determine
whether the defendant has been given a
reasonable amount of time to either file a pro
se brief or obtain new counsel. See Anders, 386
U.S. at 744 (“A copy of counsel's brief should be
furnished the indigent and time allowed him to
raise any points that he chooses”).
4. When a reasonable amount of time has
passed and no pro se or counseled brief has
been filed, the Court should dismiss the
appeal as wholly frivolous pursuant to its
initial determination and affirm the decision
of the trial court.
5. When a pro se or counseled brief has been filed
within a reasonable amount of time, however, the
Court should then consider the merits of the
issues contained therein and rule upon them
accordingly.
Id. at 129 (emphasis added).
In this case, we recognize that in the Anders context Appellant should
be permitted to present pro se issues to this Court, if he deems them worthy
of our review. However, we have also cautioned that such actions must be
done within a reasonable amount of time. Here, Appellant’s counsel filed the
Anders brief with our Court on July 19, 2016. Appellant concedes he
received it. Thereafter, Appellant’s request for record documents came
almost six months later. Moreover, the Commonwealth filed a response to
the Anders brief on December 6, 2016. Thus, Appellant’s request for
documents also fell outside the period for filing a pro se response to the
Commonwealth’s brief. See Pa.R.A.P. 2185(a)(1) (time for serving and
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filing briefs). “Under Pennsylvania law, pro se defendants are subject to the
same rules of procedure as are represented defendants.” Commonwealth
v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (citation omitted). “Although
the courts may liberally construe materials filed by a pro se litigant, pro se
status confers no special benefit upon a litigant, and a court cannot be
expected to become a litigant's counsel or find more in a written pro se
submission than is fairly conveyed in the pleading.” Id.
Accordingly, in this instance, we conclude that Appellant did not make
his request for documents within a reasonable amount of time and, in turn,
Appellant did not file a timely pro se response to the Anders brief. Thus,
we will not permit additional briefing merely because Appellant wishes to
proceed pro se belatedly. We independently reviewed the record and we
have not found any potentially meritorious issues.
For all of the foregoing reasons, we dismiss the appeal as wholly
frivolous and affirm the decision of the trial court. However, because we are
permitting counsel to withdraw, before doing so, we direct trial counsel to
provide Appellant with the requested documentation so Appellant may
petition for allowance of appeal pro se before our Supreme Court, if he so
chooses.
Motion for documents granted. Motion to withdraw granted, subject to
prior transfer of requested documents to Appellant. Judgment of sentence
affirmed.
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J-S17012-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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