J-S67021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HERM TUGGLES                               :
                                               :
                       Appellant               :   No. 1663 EDA 2017

           Appeal from the Judgment of Sentence September 10, 2012
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012986-2011


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 07, 2018

        Appellant Herm Tuggles appeals from the judgment of sentence

following his conviction of conspiracy to commit possession with intent to

deliver (PWID).1 Appellant’s counsel has filed a petition to withdraw and filed

an Anders/Santiago2 brief.            We affirm and grant counsel’s petition to

withdraw.

        The trial court summarized the relevant facts of this matter as follows:

        On August 20, 2011 at approximately 9:15 p.m., Officer [James]
        Gruninger setup surveillance in the area of 1000 West Dakota
        Street. Officer Gruninger has been a Philadelphia police officer for
        13 years. He has been a member of the Narcotics Enforcement
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S. § 903; 35 P.S. § 780-113(a)(16).

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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     Tactical Squad for six years.        Based on [his] training and
     experience, Officer Gruninger . . . stated the area is a popular drug
     trafficking section of the city.

     Officer Gruninger surveyed the area using 10 by 50 strength
     binoculars from a confidential location. He observed Appellant in
     the company of other men, one of whom was later identified as
     Troy Rodriguez. The individuals were gathered on the corner of
     10th and Dakota Street. Officer Gruninger was able to observe
     the individuals because of the street lights illuminating 10th and
     Dakota Street.

     From about 9:15 p.m. to 9:29 p.m., Officer Gruninger stated he
     observed two drug transactions between Appellant and others[,]
     given his knowledge and experience. During each transaction, the
     individuals would approach the Appellant on Dakota Street and
     engage in a brief conversation before handing him money.
     Appellant would then walk from the sidewalk to a park area, bend
     down near a tree, pick up a clear plastic baggie from the ground,
     remove a small object with a pinching motion, place the baggie
     on the ground and walk back to these individuals, handing an
     unidentified object to each of them.

     Following her conversation with Appellant, a female buyer, later
     identified as Rhonda Tucker, was seen by Officer [Kristen] Pezdan
     walking southbound on 11th Street. Officer Pezdan, also on
     surveillance, observed Ms. Tucker stick a glass stem into her purse
     as she walked away. Once stopped by police, Ms. Tucker was
     found in possession of a crack pipe containing residue.

     At approximately 9:40 p.m., the Appellant got on a bicycle and
     rode northbound on 10th Street. Mr. Rodriguez remained on the
     corner. Approximately fifteen minutes later, Mr. Rodriguez was
     approached by an unknown black male, on a bicycle, wearing a
     black shirt and white pants. The two individuals engaged in a brief
     conversation and the male handed Mr. Rodriguez an unknown
     amount of United States currency. Mr. Rodriguez walked into the
     park to the same tree area, picked up a clear plastic baggie off
     the ground, and with a pinching motion removed a small item from
     the baggie, placed the bag down, walked to the male and handed
     him a small item.

     At approximately 10:00 p.m., Appellant returned to the corner on
     his bike. He got off the bike and Mr. Rodriguez jumped on and
     also rode northbound on 10th Street. Appellant remained on the
     corner while Mr. Rodriguez was gone. About ten minutes later,

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      Mr. Rodriguez returned to the corner, got off the bike, and stood
      with Appellant. After about four minutes, Mr. Rodriguez entered
      the park area, went to the same general area, picked up a clear
      plastic baggie and placed it in his waistband. He then walked back
      to the sidewalk, got on the bike and pedaled northbound.
      Appellant started walking northbound on foot. Officer Gruninger
      then instructed backup officers to stop both males.

      Following instruction by Officer Gruninger, Officer [Chris
      Dougherty] went to the area [of] 10th and York Street to stop a
      black male who was identified to be a seller based on Officer
      Gruninger’s surveillance. Officer [Dougherty] observed Appellant
      walking northbound on the west side of 10th and York Street.
      When Appellant saw Officer [Dougherty], he started to run
      northbound on 10th Street into a walkway, on the west side of the
      street of Boston Place. The Appellant proceeded westbound into
      a breezeway. Officer [Dougherty] exited her police vehicle,
      identified herself as a police officer, and with the assistance of
      uniform[ed] police officers, apprehended the Appellant.
      Recovered from the Appellant was $81 in United States currency
      and one black T-Mobile cell phone. All items were placed on a
      Philadelphia Police Department property receipt.

      After receiving information from Officer Gruninger via police radio,
      Officer Brian Cherry stopped Troy Rodriguez on a bike on the 900
      block of Cumberland Street. Two clear packets, one contained 27
      heat sealed black packets containing crack cocaine, and one
      containing 28 heat sealed packets containing crack cocaine were
      recovered from Mr. Rodriguez. Also recovered was $14 United
      States currency. An AT&T black cell phone was also recovered
      and placed on a Philadelphia property receipt.

      Officers returned to the park area where Appellant and Mr.
      Rodriguez frequented during the transactions. After surveying the
      area, police were unable to locate any illegal narcotics or
      paraphernalia.

Trial Ct. Op., 10/27/17, at 2-4.

      Based upon the foregoing facts, Appellant was charged with PWID and

conspiracy to commit PWID. A jury trial was held from June 14, 2012, to June

19, 2012, and resulted in a hung jury on the PWID charge and a conviction



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for conspiracy to commit PWID.             The trial court sentenced Appellant on

September 10, 2012, to an aggravated range sentence of 2½ to 10 years of

incarceration,3 noting that it took into consideration the pre-sentence

investigation report (PSI) for Appellant.        N.T. Sentencing, 9/10/12, at 14.

Appellant filed a motion for reconsideration on September 18, 2012.4

Following a hearing, the trial court denied the motion for reconsideration on

November 16, 2012. Appellant did not file a direct appeal.

       On April 8, 2013, Appellant filed a pro se PCRA petition alleging, inter

alia, that his trial counsel never filed a direct appeal as he had requested. See

PCRA Pet., 4/8/13, at 4. New counsel was appointed, and an amended PCRA

petition was filed on May 10, 2016.5           The PCRA court granted Appellant’s


____________________________________________


3 The offense gravity score of Appellant’s conspiracy conviction was 7, and
Appellant’s prior record score was 4. The guidelines recommended a minimum
sentence between 1½ to 2 years imprisonment, plus or minus 6 months for
aggravating or mitigating factors.

4 The motion for reconsideration does not appear in the certified record.
According to Appellant’s counsel, the motion requested reconsideration of
Appellant’s sentence on the basis that “the court put too much emphasis on
the Appellant’s prior convictions.” Anders/Santiago Brief at 13.

5  Trial counsel withdrew on November 21, 2013, and a different attorney was
appointed to represent Appellant. At some point, though the record does not
reveal when, this attorney ceased representing Appellant, and current counsel
was appointed, who eventually filed an amended PCRA petition and has
represented Appellant throughout this appeal. The record reveals a number
of continuations between Appellant’s filing of his pro se PCRA petition and the
filing of the current amended PCRA petition.




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amended petition and reinstated his direct appeal rights nunc pro tunc on May

4, 2017.

       Counsel filed the instant direct appeal on May 24, 2017. The trial court

entered an order requiring a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal to be filed within twenty-one days on June 21, 2017.

Counsel filed a concise statement on July 13, 2017,6 raising the following

issues:

       1. The sentence was excessive.

       2. The [trial c]ourt erred in failing to grant the Appellant’s motion
          for reconsideration of the sentence.

       3. The [trial c]ourt erred in sending Exhibit C-6, the PARS report,
          back to the jury.[7]

       4. Present counsel was not counsel at trial and must rely upon the
          record rather than memory in filing this statement.

       5. Counsel does not yet have the notes of testimony for June 19,
          2012 for trial, although they have been ordered.

       6. Counsel requests leave to supplement this statement within 20
          days of the receiving the above mentioned notes.


____________________________________________


6 We note that the initial concise statement of errors complained of on appeal
was untimely, since twenty-one days from the date of the order directing
Appellant to file a concise statement fell on July 12, 2017. However, this
untimely filing of the concise statement does not warrant waiver. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc)
(“[I]f there has been an untimely filing [of a concise statement], this Court
may decide the appeal on the merits if the trial court had adequate opportunity
to prepare an opinion addressing the issues being raised on appeal.”).

7 Although Appellant’s counsel asserted an error in sending this exhibit back
to the jury, the exhibit was not sent back to the jury. See N.T. Trial, 6/15/12,
at 30-31. Appellant’s counsel has not pursued this claim on appeal.

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Preliminary Statement of Matters Complained of on Appeal, 7/13/18, at 1-2

(unpaginated). The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a)

on October 27, 2017.

      Thereafter, counsel filed an application for relief in this Court, requesting

a remand of the matter because he did not have access to all of the notes of

testimony. See Appl. for Remand Due to Incomplete Notes of Testimony,

2/7/18. This Court granted the application for relief, remanded to the PCRA

court to provide copies of the notes of testimony to counsel, and directed

Appellant to file and serve on the trial court judge a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal within twenty-one days of the

date the notes of testimony were received from the PCRA court. See Order,

3/5/18. Counsel filed a supplemental concise statement on April 12, 2018,

raising the following issues:

      1. The sentence was excessive.

      2. The [c]ourt erred in failing to grant the Appellant’s motion for
         reconsideration of sentence[.]

Suppl. Statement of Matters Complained of on Appeal, 4/12/2018, at 1

(unpaginated). The PCRA court filed a supplemental statement pursuant to

Pa.R.A.P. 1925(a), which referred to its opinion of October 27, 2017.

      On appeal, Appellant’s counsel has filed a petition to withdraw and an

Anders/Santiago brief. We note that we may not review the merits of the

underlying issues without first examining counsel’s petition to withdraw.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en



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banc). Counsel must comply with the technical requirements for petitioning

to withdraw by (1) filing a petition for leave to withdraw stating that, after

making a conscientious examination of the record, counsel has determined

that the appeal would be frivolous; (2) providing a copy of the brief to

Appellant; and (3) advising Appellant that he has the right to retain private

counsel, proceed pro se, or raise additional arguments that Appellant

considers worthy of the court’s attention. See id.

      Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

      (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, 978 A.2d at 361. Only after determining that counsel has satisfied

these technical requirements, may this Court “conduct an independent review

of the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted); accord Commonwealth

v. Yorgy, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

      Counsel has complied with the procedures for seeking withdrawal by

filing a petition to withdraw, sending Appellant a letter explaining his rights,

and supplying Appellant with a copy of the Anders/Santiago brief.           See


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Goodwin, 928 A.2d at 290.        Moreover, counsel’s Anders/Santiago brief

complies with the requirements of Santiago. Counsel includes a summary of

the relevant factual and procedural history, refers to the portions of the record

that could arguably support Appellant’s claim, and sets forth the conclusion

that the appeal is frivolous. Counsel explains his reasoning and supports his

rationale with citations to the record and pertinent legal authority.      Thus,

counsel has complied with the technical requirements for withdrawal, see

Santiago, 978 A.2d at 361, and we will independently review the record to

determine if any non-frivolous issues are raised. See Flowers, 113 A.3d at

1250.

        Counsel identifies two issues in the Anders/Santiago brief, both of

which focus on the discretionary aspects of the sentence. More specifically,

counsel indicates that Appellant intends to argue that the trial court abused

its discretion when imposing a sentence “at the very top of the guideline

[range.]”    Anders/Santiago Brief at 12.      Similarly, counsel asserts that

Appellant would argue that the trial court erred in denying his motion for

reconsideration of sentence because the sentence was excessive and “the

court put too much emphasis on the Appellant’s prior convictions.” Id. at 13.

        An appeal challenging the discretionary aspects of sentencing is not an

appeal as of right. Flowers, 113 A.3d at 1252. Appellant must meet the

requirements that the appeal was timely, the issues were preserved, and that

his brief contains a concise statement of the reasons relied upon for allowance

of appeal. Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super.

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2006).   An appeal challenging the discretionary aspects of a sentence must

also raise a substantial question that the sentence imposed was not

appropriate under the Sentencing Code. Commonwealth v. Cartrette, 83

A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (citation omitted).      Such a

question “exists only when an appellant advances a colorable argument that

the sentencing judge’s actions were either inconsistent with a specific

provision of the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Bynum-Hamilton,

135 A.3d 179, 184 (Pa. Super. 2016) (citation omitted).

     Here, we note that although Appellant’s appeal was timely and he

preserved his issue in the trial court, his brief does not contain a concise

statement of the reasons relied upon for allowance of appeal.     However,

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

even absent a separate Pa.R.A.P. 2119(f) statement.” Id. (citation omitted).

Accordingly, we review whether Appellant has raised a substantial question.

     “Generally, a bald excessiveness claim does not raise a substantial

question.”   Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super.

2015). However, where an appellant argues “that his sentence is excessive

because the sentencing court relied on ‘impermissible factors[,’ the] claim

raises a substantial question.” Commonwealth v. Shugars, 895 A.2d 1270,

1274 (Pa. Super. 2006) (citations omitted). Here, Appellant argues that his

sentence is excessive because the court relied on an impermissible factor by




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emphasizing his prior convictions. Accordingly, Appellant raises a substantial

question. See id.

       Because Appellant raises a substantial question, we address it herein.

We have set forth our standard of review as follows:

          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. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

banc) (citations omitted).

       Where a sentence is imposed within the guidelines, we may only reverse

the trial court if we find that the circumstances of the case rendered the

application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c).

Our review of the reasonableness is based upon the factors contained in 42

Pa.C.S. § 9781(d), and the trial court’s consideration of the general sentencing

standards contained in 42 Pa.C.S. § 9721(b).8             See Commonwealth v.

Baker, 72 A.3d 652, 663 (Pa. Super. 2013).
____________________________________________


8 Section 9721(b) states that “the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §
9721(b).




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       In fashioning a sentence, the trial court is required to consider the

particular circumstances of the offense and the character of the defendant.

See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009);

42 Pa.C.S. § 9721(b).         The court should reference “the defendant’s prior

criminal record, age, personal characteristics, and potential for rehabilitation.”

Ventura, 975 A.2d at 1135 (citation omitted). Further, this Court has held

that “where the sentencing judge had the benefit of a [PSI], it will be

presumed that he or she was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” Id. (citation omitted).

       Here, the trial court noted that

       [d]espite Appellant’s contention, this court took all appropriate
       factors into consideration in determining an appropriate sentence.
       A thorough review of the record reveals an in-depth discussion of
       Appellant’s prior criminal history, the particular circumstances of
____________________________________________


Section 9781(d) provides:

       In reviewing the record, the 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 court to observe the
       defendant, including any presentence investigation.

       (3) The findings upon which the sentence was based.

       (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).



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      this case, and prior attempts of rehabilitation within the criminal
      justice system. The court based sentencing on this as well as
      Appellant’s presentence report. There is nothing in the record to
      support Appellant’s claim.

Trial Ct. Op., 10/27/17, at 7-8.

      We agree with the trial court that it took the appropriate factors into

consideration in sentencing Appellant. See Ventura, 975 A.2d at 1135; 42

Pa.C.S. § 9781(d).    Appellant’s prior criminal conduct and the efforts to

rehabilitate Appellant were appropriate factors for the trial court to consider.

See Ventura, 975 A.2d at 1135. Moreover, the court utilized Appellant’s PSI

to prepare to sentence Appellant. See id. Therefore, we discern no basis to

conclude that the court’s sentence was “clearly unreasonable.”         See 42

Pa.C.S. § 9781(c).

      Accordingly, we agree with counsel’s assessment that the issue

identified for appeal was frivolous. Having independently reviewed the record,

we discern no other non-frivolous issues that have been preserved for review.

See Flowers, 113 A.3d at 1250.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/18




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