J-S15003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERRARD RONN LITTLEJOHN                    :
                                               :
                       Appellant               :   No. 845 WDA 2019

          Appeal from the Judgment of Sentence Entered May 6, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0008796-2018

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERRARD RONN LITTLEJOHN                    :
                                               :
                       Appellant               :   No. 846 WDA 2019

          Appeal from the Judgment of Sentence Entered May 6, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0010314-2018


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

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 1, 2020

        In these consolidated appeals, Appellant, Jerrard Ronn Littlejohn,

appeals from the aggregate judgment of sentence of three to six years’

incarceration, followed by three years’ probation, imposed after he pled guilty,

in two separate cases, to two counts of aggravated assault.           On appeal,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Appellant seeks to challenge the validity of his plea, as well as the legality and

discretionary aspects of his sentence.        Additionally, Appellant’s counsel,

Brandon P. Ging, Esq., seeks to withdraw his representation of Appellant

pursuant    to   Anders    v.   California,    386   U.S.   738    (1967),    and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we affirm Appellant’s judgments of sentence and grant counsel’s petitions to

withdraw.

             On August 27, 2018[, Appellant] was charged at CC2018-
      08796 with Criminal Attempt - Criminal Homicide[,] in violation of
      18 Pa.C.S. § 901(a); Aggravated Assault[,] in violation of 18
      Pa.C.S. § 2702(a)(1); Aggravated Assault - Victim Less than [Six,]
      in violation of 18 Pa.C.S. § 2702(a)(8); Endangering the Welfare
      of Children[,] in violation of 18 Pa.C.S. § 4304(a)(1); Recklessly
      Endangering Another Person[,] in violation of 18 Pa.C.S. § 2705;
      Criminal Solicitation[,] in violation of 18 Pa.C.S. § 902(a) and
      Intimidation of Witnesses[,] in violation of 18 Pa.C.S. §
      4952(a)(1).

             On October 4, 2018[, Appellant] was charged at CC2018-
      10314 with Aggravated Assault[,] in violation of 18 Pa.C.S. §
      2702(a)(6); Strangulation[,] in violation of 18 Pa.C.S. §
      2718(a)(1); Endangering the Welfare of Children[,] in violation of
      18 Pa.C.S. § 4304(a)(1); two counts of Access Device Fraud[,] in
      violation of 18 Pa.C.S. § 4106(a)(1); Unlawful Restraint[,] in
      violation of 18 Pa.C.S. § 2902(a)(1); two counts of Simple
      Assault[,] in violation of 18 Pa.C.S. § 2701(a)(1); Theft by
      Unlawful Taking[,] in violation of 18 Pa.C.S. § 3921(a); Receiving
      Stolen Property[,] in violation of 18 Pa.C.S. § 3925(a); Defiant
      Trespass[,] in violation of 18 Pa.C.S. § 3503(b)(1)(i); and various
      summary offenses.

            On February 5, 2019[, Appellant] entered into a plea
      agreement at CC2018-10314[,] by which the Commonwealth
      amended [C]ount [One] to 2702(a)(6) Aggravated Assault [-]
      Serious [B]odily Injury[,] and withdrew all remaining counts in
      exchange for the guilty plea[,] with no agreement of sentence. At
      CC2018-08796[, Appellant] agreed to plead guilty to Count


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     [T]hree, Aggravated Assault [-] Victim Less than [Six,] … in
     exchange for the Commonwealth[’s] withdrawing all remaining
     counts[, and] no agreement as to the sentence.

          The Commonwealth summarized the evidence at [CC]2018-
     08796 as follows:

       [T]he victim is three-year-old [R.S.H.] His date of birth is
       September [], 2014. On May 31st of 2018[, R.S.H.] was
       brought to Children’s Hospital in critical condition with
       multiple injuries. It was declared a near fatality. Dr.
       Adelade Eichman would have testified that [R.S.H.] was
       found to have [the] following injuries: Extensive bruising to
       his arms, chest, abdomen, groin and thighs, as well as
       marks on multiple surfaces[;] … healing fractures of the left
       8th, 9th[,] and 10[th] ribs[,] which were approximately [two]
       to [four] weeks old[;] [and a]n acute fracture of the left
       ulna. He [also] had internal injuries including a Grade 2
       liver laceration, a left adrenal hemorrhage, [and] muscular
       and kidney injuries. He was also diagnosed to have swelling
       and bruising of his penis. He was unable to urinate without
       a catheter. The doctor would have testified that [R.S.H.]
       was the victim of physical abuse on multiple occasions. The
       Commonwealth would have further called Allegheny County
       Police Detectives Eric Stark, Patrick Miller, [and] the victim’s
       mother, Janet Zeigler, who would’ve testified that
       [Appellant] was the sole caretaker of [R.S.H.] while his
       mother was at school. [Appellant] confessed to the child’s
       mother[,] after the child told his mother that [Appellant]
       had beat[en] him and told him best friends don’t tell on each
       other.

     At CC 2018-10314[,] Commonwealth summarized the evidence as
     follows:

       [T]he Commonwealth would have called Stowe Township
       Police [Officers] and [J.Z.] They would have testified that
       on April 9, 2018[,] Stowe Police were dispatched to 902
       Russellwood Avenue for a report of a violent domestic
       [abuse incident]. They located the victim, [J.Z.], who
       indicated that [Appellant] was her ex-boyfriend, that he
       became angry over things, including that she had asked him
       to leave the residence, and he wouldn’t leave without his
       firearm. When [J.Z.] told him she didn’t know where it was,
       he choked her, dragged her by her hair, locked her in [the]


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           basement for a period of time, continued to [choke] her,
           prevented her from calling 911, and slammed her head
           against the wall.

           [Appellant] made no corrections or additions to the summaries
        of the cases. [Appellant’s] plea was accepted and a Presentence
        [R]eport was ordered. A sentencing hearing was held on May 6,
        2019[,] and [Appellant] made no corrections or additions to the
        Presentence Report.      After considering all of the evidence,
        including the nature and extent of the injuries to the minor victim,
        as well as [Appellant’s] statements regarding his need for
        rehabilitation, [Appellant] was sentenced as set forth above.

Trial Court Opinion, 9/23/19, at 2-4 (citations to the record and internal

quotation marks omitted). In particular, for the aggravated assault of R.H.S.,

Appellant was sentenced to a term of two to four years’ incarceration, followed

by three years’ probation. For the aggravated assault of J.Z., he received a

consecutive term of one to two years’ incarceration, followed by three years’

probation, imposed to run concurrently to the probation sentence in his other

case.

        Appellant filed a timely post-sentence motion, seeking reconsideration

of his sentence.    The court denied that motion and Appellant filed timely

notices of appeal in each of his two cases, which this Court sua sponte

consolidated. When the trial court then ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, his attorney at

that point, Anne Puluka, Esq., filed a Rule 1925(c)(4) statement of her intent

to file a petition to withdraw and an Anders brief. The trial court filed a Rule

1925(a) opinion on September 23, 2019.

        Thereafter, this Court granted Attorney Puluka’s petition to withdraw

because she was leaving her employment with the Allegheny County Public

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Defender’s Office.    Attorney Ging, another public defender, took over

Appellant’s case and filed identical petitions to withdraw and Anders briefs in

each separate case.    Attorney Ging concludes that the only three issues

Appellant could potentially raise on appeal — challenges to the validity of his

guilty plea, the legality of his sentence, and the discretionary aspects of his

sentence — are either waived or frivolous. See Anders Brief at 23 (citing

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468 (Pa. Super. 2017)

(“Pennsylvania law makes clear that by entering a plea of guilty, a defendant

waives his right to challenge on direct appeal all non[-]jurisdictional defects

except the legality of the sentence and the validity of the plea.”);

Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 n.5 (Pa. Super. 2019)

(observing that if a plea agreement is open as to the sentence to be imposed,

the defendant may challenge on direct appeal the discretionary aspects of the

sentence)).

      Accordingly,

      this Court must first pass upon counsel’s petition to withdraw
      before reviewing the merits of the underlying issues presented by
      [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
      290 (Pa. Super. 2007) (en banc).

      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 Santiago. 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;



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         (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, 978 A.2d at 361. Counsel also must provide a copy of
      the Anders brief to his client. Attending the brief must be a letter
      that advises the 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.”
      Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
      2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct a simple review of the record to

ascertain if there appear[s] on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.”      Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

      In this case, Attorney Ging’s Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could arguably

support Appellant’s claims, and he sets forth his conclusion that Appellant’s

appeal is frivolous. He explains his reasons for reaching that determination,

and supports his rationale with citations to the record and pertinent legal

authority. Attorney Ging also states in his petition to withdraw that he has

supplied Appellant with a copy of his Anders brief. Additionally, he attached

a letter directed to Appellant to his petition to withdraw, in which he informed

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Appellant of the rights enumerated in Nischan. Accordingly, counsel has

complied with the technical requirements for withdrawal.           We will now

independently review the record to determine if Appellant’s issues are

frivolous, and to ascertain if there are any other, non-frivolous issues he could

pursue on appeal.

      First, we agree with Attorney Ging that a challenge to the validity of

Appellant’s guilty plea is frivolous, as he did not orally seek to withdraw his

plea at any point, nor make any such request in his post-sentence motion.

See Anders Brief at 25 (citing Commonwealth v. Jabbie, 200 A.3d 500,

506 (Pa. Super. 2018) (finding Jabbie’s challenge to the validity of his guilty

plea waived where he “failed to raise his challenge first with the trial court,

either on the record or in a post-sentence motion” because, under Pa.R.A.P.

302(a), “[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal”)).

      We also agree with Attorney Ging that it is frivolous to attack the legality

of Appellant’s sentence. As counsel explains:

      [Appellant] pled guilty in each case to one felony of the second
      degree. At CC2018[-]08796, the trial court sentenced [Appellant]
      to [two to four] years’ incarceration, to be followed by a
      consecutive period of probation for three years. At CC2018[-]
      10314, the trial court sentenced [Appellant] to [a consecutive
      term of one to two] years’ incarceration, as well as three years’
      probation[,] to be served concurrent with the probationary
      sentence imposed at CC2018[-]08796. The maximum allowable
      sentence for a second-degree felony is not more than ten years.
      18 Pa.C.S.[] § 1103(2). Accordingly, both sentences are well
      below the statutory maximum.



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Id. at 26-27. Additionally, Attorney Ging observes that “the trial court made

the requisite finding at the time of sentencing that [Appellant] was not RRRI[1]

eligible[,]” and it also afforded Appellant credit for his time served. Id. at 27.

Accordingly, Appellant’s sentence is not illegal.

        Finally, Attorney Ging concludes that it would be frivolous to challenge

the discretionary aspects of Appellant’s sentence. It is well-settled that,

        [c]hallenges to the discretionary aspects of sentencing do not
        entitle an appellant to review as of right. Commonwealth v.
        Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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
           [the] appellant has filed a timely notice of appeal, see
           Pa.R.A.P. 902 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 [the]
           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.[] § 9781(b).

        Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
        appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
        the discretionary aspects of a sentence are generally waived if
        they are not raised at the sentencing hearing or in a motion to
        modify the sentence imposed. Commonwealth v. Mann, 820
        A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
        A.2d 599 (2003).

        The determination of what constitutes a substantial question must
        be evaluated on a case-by-case basis. Commonwealth v. Paul,
        925 A.2d 825, 828 (Pa. Super. 2007). 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
____________________________________________


1   Recidivism Risk Reduction Act, 61 Pa.C.S. §§ 4501-4512.

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      to the fundamental norms which underlie the sentencing process.”
      Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

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

      Here, Attorney Ging notes that in Appellant’s post-sentence motion, he

conceded that the court’s sentence meets the dictates of 42 Pa.C.S. § 9721(b).

See Anders Brief at 29; see also Post-Sentence Motion, 5/8/19, at 3

(unnumbered) (stating that “the sentence rendered by this Honorable Court

meets the requirements of 42 Pa.C.S.[] § 9721(b)”).        However, Appellant

argued in the motion that his sentence should be reduced because he took

responsibility for his actions, he has a good employment history, and he has

a supportive family, including a 17-year-old son with whom he has a good

relationship. See Post-Sentence Motion at 2-3.

      “An allegation that the sentencing court failed to consider certain

mitigating factors generally does not necessarily raise a substantial question.”

Moury, 992 A.2d at 171 (citations omitted). Moreover,

      [w]here the sentencing court had the benefit of a presentence
      investigation    report   (“PSI”),   we     can   assume     the
      sentencing court “was aware of relevant information regarding
      the defendant’s character and weighed those considerations along
      with mitigating statutory factors. Further, where a sentence is
      within the standard range of the guidelines, Pennsylvania law
      views the sentence as appropriate under the Sentencing Code.”

Id.

      As Attorney Ging observes, Appellant presented mitigating evidence to

the court at the sentencing hearing. Anders Brief at 31. The court also had

the benefit of a presentence report, and it ultimately imposed sentences in

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the standard and mitigated ranges of the guidelines. Given this record, we

agree with Attorney Ging that Appellant’s challenge to the discretionary

aspects of his sentence does not raise a substantial question for our review.

In other words, that claim is frivolous. We also discern no other, non-frivolous

issues that Appellant could raise on appeal. Accordingly, we affirm Appellant’s

judgments of sentence in each case, and grant counsel’s petitions to withdraw.

      Judgments of sentence affirmed. Petitions to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/01/2020




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