J-S71021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARKI PILGRIM

                            Appellant                  No. 789 MDA 2014


             Appeal from the Judgment of Sentence April 14, 2014
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0002066-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 12, 2015

        Appellant, Marki Pilgrim, appeals from the judgment of sentence

entered April 14, 2014, by the Honorable Michael J. Barrasse, Court of

Common Pleas of Lackawanna County.               Additionally, Pilgrim’s court-

appointed counsel, Donna M. DeVita, Esquire, has filed an application to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009).     After careful review, we affirm Pilgrim’s judgment of sentence and

grant counsel’s petition to withdraw.

        On April 14, 2014, Pilgrim entered an open guilty plea to one count of

conspiracy to deliver a controlled substance (heroin).1           Immediately
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 903(c).
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thereafter, the trial court sentenced Pilgrim to a standard range sentence of

27 to 60 months’ incarceration.           Pilgrim filed a pro se motion for

reconsideration of sentence and notice of appeal, which the trial court

ordered forwarded to defense counsel.          Pilgrim’s counsel then filed a nunc

pro tunc motion for reconsideration of sentence, which the trial court denied.

This timely appeal followed.

      As noted, Attorney DeVita has requested to withdraw and has

submitted an Anders brief in support thereof contending that Pilgrim’s

appeal is frivolous.      The Pennsylvania Supreme Court has articulated the

procedure to be followed when court-appointed counsel seeks to withdraw

from representing an appellant on direct appeal:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel 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 arguably believes 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.

Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361

(2009).

      We    note   that    Attorney   DeVita    has   complied   with   all   of   the

requirements of Anders as articulated in Santiago. Additionally, Attorney

DeVita confirms that she sent a copy of the Anders brief to Pilgrim as well

as a letter explaining to Pilgrim that he has the right to proceed pro se or


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the right to retain new counsel. A copy of the letter is appended to Attorney

DeVita’s petition, as required by this Court’s decision in Commonwealth v.

Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to

facilitate appellate review, … counsel must attach as an exhibit to the

petition to withdraw filed with this Court a copy of the letter sent to

counsel’s client giving notice of the client’s rights.” Id. at 749 (emphasis in

original).

        We will now proceed to examine the issue counsel set forth in the

Anders brief.2 Counsel raises the following issue for our review:

        Whether the sentence imposed was unduly harsh and excessive
        in light of the fact that [Pilgrim] was a product of particular
        circumstances and conditions of environment?

Anders Brief at 4 (unnecessary capitalization omitted).

        Pilgrim challenges the discretionary aspects of his sentence.             A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.”     Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004) (citation omitted).

        An appellant challenging the discretionary aspects of his
        sentence must invoke this Court’s jurisdiction by satisfying a
        four-part test:

        [We] conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
____________________________________________


2
    Pilgrim has not filed a response to Attorney DeVita’s petition to withdraw.



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      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Pilgrim filed a timely appeal and challenged his sentence in a

post-sentence motion. Pilgrim’s appellate brief also contains the requisite

Rule 2119(f) concise statement.    He argues that the trial court’s standard

range sentence of 27 to 60 months’ incarceration was manifestly excessive

and that the court failed to adequately consider his background.          See

Anders Brief at 8-9. These claims do not raise a substantial question as to

the appropriateness of Pilgrim’s sentence.    See, e.g., Commonwealth v.

Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (“Careful litigants should

note that arguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas

a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”);

Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa. Super. 2001)

(claim that sentencing court failed to defendant’s “personal life situation” or

other factors failed to raise a substantial question); Commonwealth v.

Cross, 695 A.2d 831, 833 (Pa. Super. 1997) (“[C]laim of excessiveness of

sentence does not raise a substantial question where the sentence is within

the statutory limits.”). As Pilgrim does not present a substantial question for

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our review, he fails to invoke this Court’s jurisdiction over his discretionary

sentencing claim.

      After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed. Permission to withdraw as counsel is

granted. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2015




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