J-A31045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 JOHN VINCENT FERRARO                   :
                                        :   No. 1360 EDA 2017
                    Appellant

           Appeal from the Judgment of Sentence March 11, 2014
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0005863-2013,
            CP-09-CR-0005864-2013, CP-09-CR-0005865-2013,
                           CP-09-CR-0005866-2013


BEFORE:    PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED JANUARY 29, 2018

      Appellant John Vincent Ferraro appeals from the judgment of sentence

entered in the Court of Common Pleas of Bucks County after Appellant pled

guilty to multiple counts of robbery, conspiracy, and related offenses.

Appellant’s counsel seeks to withdraw his representation 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 grant counsel’s

petition to withdraw and affirm the judgment of sentence.

      The lower court summarized the factual background and procedural

history of this case as follows:

            On January 6, 2014, Appellant pled guilty on several cases,
      including the four docket numbers before the Court. On docket
      number CP-09-CR-0005863-2013, Appellant pled guilty to

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A31045-17


          Robbery – Threatening Immediate Serious Bodily Injury;1
          Robbery – Threatening Bodily Injury (two counts);2 Theft By
          Unlawful Taking – Moveable Property (two counts);3 and five
          counts of Criminal Conspiracy to commit each of the
          aforementioned offenses.4       On docket number CP-09-CR-
          0005864-2013, Appellant pled guilty to Robbery – Threatening
          Immediate Serious Bodily Injury; Robbery – Threatening Bodily
          Injury; Robbery – Taking Property of Another by Force,5
          Possession of a Weapon,6 Theft By Unlawful Taking – Moveable
          Property; and six counts of Criminal Conspiracy. On docket
          number CP-09-CR-0005865-2013, Appellant pled guilty to
          Robbery – Threatening Immediate Serious Bodily Injury; Robbery
          – Threatening Bodily Injury, and four counts of Criminal
          Conspiracy.     On docket number CP-09-CR-0005866-2013,
          Appellant pled guilty to Robbery – Threatening Immediate Serious
          Bodily Injury; Robbery – Threatening Bodily Injury; Robbery –
          Taking Property of Another by Force, Possession of a Weapon,
          Theft By Unlawful Taking – Moveable Property, Receiving Stolen
          Property7 and six counts of Criminal Conspiracy.

                 Regarding the underlying conduct, Appellant pled guilty to
          participating in several armed robberies, with more than a dozen
          victims, as the getaway driver. On each occasion, Appellant knew
          his co-conspirator, Jessie Smoot, intended to commit these
          robberies and knew Mr. Smoot carried a loaded gun. For his
          participation in the armed robberies, Appellant received a portion
          of the robbery proceeds, amounting to a meager sum (roughly the
          equivalent of gas money). The victims in this case range from
          juveniles to repeatedly victimized persons. At the trial of Mr.
          Smoot, Appellant cooperated with the Commonwealth and
          provided credible testimony against Mr. Smoot.

               Appellant was sentenced on March 11, 2014. This Court
          sentenced Appellant to six (6) to twelve (12) years’ incarceration
          on the lead robbery count for each case, to be served
____________________________________________


1   18   Pa.C.S.A.   §   3701(a)(1)(ii).
2   18   Pa.C.S.A.   §   3701(a)(1)(iv).
3   18   Pa.C.S.A.   §   3921(a).
4   18   Pa.C.S.A.   §   903.
5   18   Pa.C.S.A.   §   3701(a)(1)(v).
6   18   Pa.C.S.A.   §   907(b)
7   18   Pa.C.S.A.   §   3925(a).

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      concurrently. This sentence, though imposed on only one count
      in each case, represented the total aggregate sentence Appellant
      would have otherwise received in each case had the Court
      sentenced Appellant on each count served consecutively. This
      sentencing structure was purposeful to simplify the parole process
      for Appellant when the time came. The aggregate sentence was
      in the mitigated range of the sentencing guidelines.

            On March 19, 2014, Appellant filed a Motion for
      Reconsideration of Sentence. After a hearing on August 14, 2014,
      this Court denied Appellant’s Motion.

             On September 17, 2015, Appellant filed a pro se PCRA
      petition. Thereafter, PCRA Counsel was appointed and a new
      PCRA Petition was filed on October 19, 2015. By agreement of
      the parties, Appellant’s PCRA Petition was mutually disposed of by
      way of stipulation wherein Appellant’s direct appeal rights were
      reinstated, on March 29, 2017.

            Appellant filed a Notice of Appeal on April 24, 2017.

Trial Court Opinion, 6/30/17, at 1-3 (footnotes omitted).

      Appellant complied with the lower court’s direction to file a Concise

Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

In this statement, Appellant raised the following issue for review:

      The Court erred when denying [Appellant’s] post-sentence for
      reconsideration of sentence because when sentencing the
      [Appellant] it did not properly, fully, or adequately take into
      account [Appellant’s] relative lack of criminal activity before the
      episodes underlying these cases, and evidence of his personal
      background, including his care for his family and his lack of a
      father, for had it done so, he would have received a lower
      sentence.

1925(b) statement, 5/18/17, at 1.      Thereafter, Appellant’s counsel filed a

motion to withdraw his representation along with an Anders brief, conceding

that after diligent investigation of the grounds for appeal, he found this appeal

to be frivolous.

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     As an initial matter, we must first review counsel’s request to withdraw

before evaluating the merits of this appeal. Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen faced with

a purported Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw”).      An

attorney who seeks to withdraw on appeal must comply with the following

procedural requirements:

     Counsel must: 1) petition the court for leave to withdraw stating
     that, after making a conscientious examination of the record,
     counsel has determined that the appeal would be frivolous; 2)
     furnish a copy of the brief to the defendant; and 3) advise the
     defendant that he or she has the right to retain private counsel or
     raise additional arguments that the defendant deems worthy of
     the court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court stated in Santiago

that an Anders 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 (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, supra at 178-79, 978 A.2d at 361.

     On appeal, defense counsel filed an Anders brief in which he included

a request to withdraw his representation. In the brief, counsel avers that he

“has thoroughly reviewed the entire record of this matter, cannot find any


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issues of arguable merit, and believes the appeal is wholly frivolous.” Anders

brief at 14. In his application to withdraw, counsel averred that he forwarded

a copy of the Anders Brief to Appellant together with a letter explaining that

while counsel had requested to withdraw his representation, Appellant had his

right to proceed pro se or with new, privately-retained counsel to raise any

additional points or arguments that Appellant believed had merit.

      In the Anders brief, counsel provides a summary of the facts and

procedural history of the case with citations to the record, refers to evidence

of record that might arguably support the issue raised on appeal, provides

citation to relevant case law, and states his reasoning for his conclusion that

this appeal is wholly frivolous. Accordingly, we find counsel has complied with

the technical requirements of Anders and Santiago. Appellant filed neither

a pro se brief nor a counseled brief with new, privately-retained counsel. We

proceed to examine the issue of arguable merit identified in the Anders Brief.

      Appellant argues that the sentencing court improperly imposed his

sentence without giving proper consideration to a number of factors, including

his lack of a prior criminal record, his character, and his lack of paternal

support in his childhood.    These arguments constitute challenges to the

discretionary aspects of Appellant’s sentence. It is well-established that “[a]

challenge to the discretionary aspects of sentencing does not entitle an

appellant to review as of right.” Commonwealth v. Bynum-Hamilton, 135

A.3d 179, 184 (Pa.Super. 2016). In order to invoke this Court’s jurisdiction

to address such a challenge, the appellant must satisfy the following four-part

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test: the appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P.

902, 903; (2) preserve the issues at sentencing or in a timely post-sentence

motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief

does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set forth

a substantial question that the sentence appealed from is not appropriate

under the Sentencing Code under 42 Pa.C.S.A. § 9781(b). Id.

      Appellant filed a timely notice of appeal and had preserved this claim in

a timely post-sentence motion. Although we observe that counsel’s Anders

brief does not contain the requisite statement pursuant to Pa.R.A.P. 2119(f),

“[w]here counsel files an Anders brief, this Court has reviewed the matter

even absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do not

consider counsel's failure to submit a Rule 2119(f) statement as precluding

review of whether [Holmes's] issue is frivolous.” Commonwealth v. Zeigler,

112 A.3d 656, 661 (Pa. Super. 2015) (citations omitted).

      We may now determine whether Appellant has raised a substantial

question for our review. “The determination of what constitutes a substantial

question must be evaluated on a case-by-case basis.” Commonwealth v.

Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015). This Court has provided as

follows:

      A substantial question exists only when the appellant advances a
      colorable argument that the sentencing judge's actions were
      either: (1) inconsistent with a specific provision of the Sentencing
      Code; or (2) contrary to the fundamental norms which underlie
      the sentencing process.



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      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S. § 9721(b), that is, the protection
      of the public, gravity of offense in relation to impact on victim and
      community, and rehabilitative needs of the defendant. And, of
      course, the court must consider the sentencing guidelines.

Id. (internal citations omitted).

      Appellant asserts that the sentencing court failed to consider mitigating

factors such as his lack of a prior record, his character, and the absence of his

father during his childhood. “This Court has held on numerous occasions that

a claim of inadequate consideration of mitigating factors does not raise a

substantial question for our review.” Commonwealth v. Miklos, 159 A.3d

962, 970 (Pa.Super. 2017) (quoting Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa.Super. 2013)). Although Appellant’s argument does not raise a

substantial question for our review, we will still address the merits of his claim.

      In reviewing a challenge to the discretionary aspects of sentence, we

emphasize that:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted). In reviewing the sentence, an appellate court shall have

regard for: (1) the nature and circumstances of the offense and the history

and characteristics of the defendant; (2) the opportunity of the sentencing



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J-A31045-17



court to observe the defendant, including any presentence investigation; (3)

the findings upon which the sentence was based; and (4) the guidelines

promulgated by the commission. See 42 Pa.C.S.A. § 9781(d)(1)–(4).

      A sentence may be found to be unreasonable if it fails to properly

account for the four statutory factors, or if it “was imposed without express or

implicit consideration by the sentencing court of the general standards

applicable to sentencing” as set forth in 42 Pa.C.S.A. § 9721(b), i.e., the

protection of the public, the gravity of the offense in relation to the impact on

the victim and the community, and the rehabilitative needs of the defendant.

Commonwealth v. Walls, 592 Pa. 557, 569, 926 A.2d 957, 964 (2007).

      In this case, the sentencing court imposed four concurrent terms of six

to twelve years’ incarceration on the most serious robbery counts on each

docket (Robbery - Threatening Immediate Serious Bodily Injury: 18 Pa.C.S.A.

§ 3701(a)(1)(ii)). The robbery offense described in Section 3701(a)(1)(ii) is a

first-degree felony. See 18 Pa.C.S.A. § 3701(b). We note that “Pennsylvania

judges retain broad discretion to sentence up to and including the maximum

sentence authorized by statute; the only line that a sentence may not cross is

the statutory maximum sentence.”       Commonwealth v. Gordon, 596 Pa.

231, 245, 942 A.2d 174, 182 (2007). The statutory maximum for a first-

degree felony is twenty years of imprisonment. See 18 Pa.C.S.A. § 1103(1).

      Although Appellant’s individual sentences are in the aggravated range

of the sentencing guidelines, the sentencing court explained that he imposed

lengthier sentences solely on the most serious robbery charges on each docket

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to account for the aggregate sentence Appellant would have received if the

sentencing court had imposed consecutive sentences on each of Appellant’s

numerous convictions for robbery, conspiracy, theft by unlawful taking, and

related offenses.    The sentencing court determined that this sentence

configuration would simplify the parole process for Appellant. In sum, the

sentencing court emphasized that the aggregate sentence of six to twelve

years’ imprisonment fell within the mitigated range of the sentencing

guidelines and was lower than the Commonwealth’s recommendation of an

aggregate sentence of eight to sixteen years’ imprisonment.

      At sentencing, the lower court heard testimony from Appellant’s mother,

grandmother, and Appellant himself.         In addition, the sentencing judge

indicated that he had reviewed numerous letters from Appellant’s family

members and friends. Thereafter, the sentencing court thoroughly set forth

its rationale for imposing this sentence:

      Well, Mr. Ferraro, you should understand there are a lot of things
      I have to consider when imposing sentence. … I have to consider
      the facts of the case, the sentencing guidelines, your nature and
      character, the impact this has had upon the victims, the impact
      it’s had upon the community, the need to deter you and others
      from committing these crimes, and I have to take into account
      your rehabilitative needs.

      So there are a lot of things that go into my decision, and I will tell
      you that unlike most cases, your case is exceedingly difficult for
      me because I do believe you’re quite remorseful, and I do believe
      you were less culpable.

      But I also believe, as the Commonwealth has pointed out, that at
      some point in this reign of terror that you and Mr. Smoot and Mr.
      Epp engaged in, that you had to be aware of what was going on.

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     In other words, you took Mr. Smoot, you knew he had a gun, you
     knew he was using it, and I’d be a fool if I didn’t believe the two
     of you talked about that. You probably and he probably were
     unaffected by things that were said in that van. On the way home,
     such as sticking the gun in someone’s face. Those people, as you
     probably know, were terrorized. So that’s the backdrop of this
     case against which I have to determine what would be an
     appropriate sentence.
                                     …
     And as you might recall from your initial plea, the felony of first-
     degree robbery carries a maximum penalty of 20 years. So just
     those five [counts] alone you’d be facing up to 100 years of
     confinement. So I have to take those guidelines into account.

     I also have to take into account the facts as has, again, been
     pointed out by the Commonwealth. This was a spree or, as I
     believe, a reign of terror that existed in numerous municipalities
     across two separate counties and range from Bristol to New Britain
     over into Montgomeryville and Montgomery Township and
     Horsham. And I dare say but for the fine efforts of numerous
     police officers, Mr. Smoot and perhaps you and Mr. Epp might still
     be doing it. We’ll never know because they stopped you. They
     stopped Mr. Smoot and they stopped this from occurring. And so
     I have to take that into account as well.

     What I find interesting is the family background you have, the
     family support, and your support from your children.          And
     apparently, from [the] comments and letters that I’ve received,
     your grandparents did a terrific job in raising you, and something
     happened.

     As I said, you appear remorseful. You’ve accepted responsibility.
     In fact, I have no problem with the preliminary hearing. I know
     the DA and I perhaps may disagree on that, but I think in a case
     like this, [defense counsel] would probably be giving you good
     legal advice as to see what kind of evidence they had. But when
     it came time, you stood up and did the right thing. You even
     brought the evidence to the police. You didn’t call your lawyer.
     You brought in the evidence.

     And again, I might dare say notwithstanding the jury’s verdict, I
     thought he was a very convincing witness, [defense counsel]. I
     thought he was credible. And what’s really troubling to me is that
     he did this for gas money. It’s as if Mr. Smoot had some

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J-A31045-17


     intoxicating effect over you that you just got in the car and drove
     him to these heinous crimes. I don’t know if anyone can explain
     that. I don’t know if you can explain it.

     The letters I received on your behalf indicate that you’re always
     there for your family, you’re a hard worker, generous, devoted,
     thoughtful, courteous, and respectful. And those are all character
     traits that contradict the conduct that you engaged in with Mr.
     Smoot. So I have a great deal of information about your character
     and your background.

     I’ve considered the particular facts of this case and the impact it’s
     had upon the victims and the community which we know is
     considerable. In fact, the victims, each and every one of them,
     testified that they were terrified. You weren’t there for it, of
     course. You were in the van waiting. But they were terrified at
     what happened to them in the cold and callous nature in which
     these offenses took place.

     And so I think on balance there is a requirement for me to consider
     all of those things, and to impose a sentence of anything other
     than total confinement would depreciate the seriousness of these
     offenses.

     Now, I’ve heard the Commonwealth’s recommendation, and I will
     say to you that it is, in light of all that has conspired, quite
     generous. But I think when I hear your arguments or the
     arguments of [defense counsel] and I read the letters from your
     family, I’m not so convinced that eight years is what’s required in
     your case. It’s going to be a substantial sentence, and you’re
     going to have to spend that time hopefully being rehabilitated and
     coming out with a different perspective on things that will help
     you appreciate what you have, and that’s a good family and good
     family support. Perhaps you took them for granted and perhaps
     you did something that everybody characterized as a mistake. But
     nevertheless, you’re in this position, and you have to spend some
     time in the state institution. And those are the reasons for my
     sentence.
                                     ***
                          [Imposition of sentence]
                                     ***
     In any event, I think that, again, the sentence takes into account
     the level of cooperation, your level of culpability, your remorse,
     and the Commonwealth’s recommendation that you be sentenced

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J-A31045-17


      to a mitigated sentence, and that’s what I’ve attempted to
      accomplish in imposing that sentence.

Notes of Testimony (N.T.) Sentencing, 3/11/17, at 41-49.

      The sentencing court considered the ample evidence offered by

Appellant and was aware of Appellant's suggested mitigating factors and the

applicable sentencing guidelines prior to the imposition of Appellant's

sentencing. For the reasons cited supra, the sentencing court credited most

of Appellant’s evidence and decided that a mitigated range sentence was

appropriate.   Although Appellant would like to have a lesser sentence, the

record clearly shows that the lower court properly exercised its discretion and

considered all the relevant sentencing factors in determining the appropriate

sentence.   See Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.

Super. 2003) (An “appellate court must give great weight to the sentencing

court's discretion, as he or she is in the best position to measure factors such

as the nature of the crime, the defendant's character, and the defendant's

display of remorse, defiance, or indifference”).

      After conducting an independent review of the issue identified by

counsel in his Anders brief, we agree that it does not have arguable merit.

Appellant did not file a response to counsel’s Anders brief and request to

withdraw.   Accordingly, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.          Petition to withdraw as counsel

granted.

      Judge Panella joins the memorandum.

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J-A31045-17



     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/18




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