J-S23006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAUL SOTO                                  :
                                               :
                       Appellant               :   No. 356 EDA 2017

           Appeal from the Judgment of Sentence December 15, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0013896-2014


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 05, 2018

        Appellant Raul Soto appeals from the judgment of sentence following

his guilty plea to aggravated assault, criminal conspiracy, firearms not to be

carried without a license, carrying firearms on a public street in Philadelphia,

and his nolo contendere plea to robbery.1          Appellant’s counsel has filed a

petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and its Pennsylvania counterpart, Commonwealth v. Santiago,

978 A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.

        The trial court set forth the facts of this case as follows:

        A summary of the facts admitted into evidence, and stipulated to
        by Appellant, during the guilty plea colloquy is as follows: On
        October 3, 2014, at around 3:08 a.m., the complaining witness,
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2702(a), 903, 6106(a)(1), 6108, and 3701(a)(1)(ii),
respectively.
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        Joseph Siriani, dropped off a friend at 1016 West Tioga Street in
        Philadelphia. As the friend went into a house, he waited outside
        in his vehicle. He then observed a white or Hispanic male, wearing
        a skeleton mask, approach his passenger vehicle window. The
        male, who was later identified as Appellant, pointed “a long
        shotgun type gun into his truck” and said, “Give me your money.”
        The Appellant then started going through the complainant’s center
        console and tried to grab the complainant’s car keys. The
        complainant responded and pushed the Appellant away. The
        complainant told the Appellant he did not have anything. Before
        the complainant drove away, the Appellant was able to grab the
        complainant’s cell phone from the center console.

        The complainant made a U-turn and watched the Appellant run
        into 1014 West Tioga Street. The complainant exited his vehicle,
        banged on the door of that property, and saw the Appellant look
        out the second floor window without any mask obstructing his
        face. Appellant proceeded to the first floor of the property and
        opened the front door. The complainant lunged at the Appellant
        and in turn the Appellant fired two shots in the complainant’s right
        leg. An unknown individual also began firing at the complainant
        from a second floor window.

        The complainant ran to his car and attempted to drive himself to
        Temple University Hospital.       Due to his injuries, he lost
        consciousness at Germantown Avenue and Ontario Street. Police
        Officers from the 25th District responded to the incident and
        observed the complainant bleeding profusely from the gunshot
        wound. The complainant was non-responsive so officers escorted
        him to the hospital for treatment.

        Video recovered from 1014 West Tioga Street revealed that the
        Appellant resides at that location. It was later confirmed that
        Appellant’s girlfriend, Yamarys Ramirez was also at the property
        that day. She later told the police that Appellant had fired a gun
        on that date. Following this incident, she stated Appellant took
        “both guns” from 1014 West Tioga Street, dropped her off at her
        home, and drove away.

        While at Temple Hospital, the complainant was interviewed by
        Detective Dusak[2] and shown a photo array. He identified the
        Appellant as the man who shot him. A search warrant was
____________________________________________


2   Detective Dusak’s first name is not in the certified record.


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       executed at 1014 West Tioga Street for the front second floor
       bedroom. No firearms were recovered but “94 live rounds of 7.62
       by 95 caliber along with an ammo drum and a banana magazine
       clip” were discovered. The complainant’s cell phone was also not
       recovered during the investigation. Based upon video surveillance
       submitted into evidence, it was stipulated between the
       Commonwealth and defense counsel that [A]ppellant appeared to
       pick up something the complainant had dropped.

Trial. Ct. Op., 9/14/17, at 1-3 (citations omitted).

       On April 4, 2016, Appellant pled guilty to aggravated assault, conspiracy

to commit aggravated assault, firearms not to be carried without a license,

and carrying firearms on a public street in Philadelphia. N.T., 4/4/16, at 3.

Appellant also pled nolo contendere to robbery. Id. at 3, 17.

       At the sentencing hearing, on September 12, 2016, Appellant argued

that he did not intend to rob the complainant but was only attempting to scare

him.    The trial court requested additional information and continued the

sentencing hearing. N.T., 9/12/16, at 14-20. On December 15, 2016, the

court reconvened the sentencing hearing and sentenced Appellant to an

aggregate term of nine to twenty years’ incarceration.3 Sentencing Order,

12/15/16.
____________________________________________


3 The trial court sentenced Appellant to 5 to 10 years’ incarceration for
aggravated assault, 4 to 10 years’ incarceration for conspiracy, 1½ to 3 years’
incarceration for firearms not to be carried without a license, 1 to 2 years’
incarceration for carrying firearms on a public street in Philadelphia, and 5 to
10 years’ incarceration for robbery. All sentences were to run concurrently,
except for the conspiracy and aggravated assault sentences, which were to
run consecutively.

      The trial court found that Appellant had violated his probation on a
separate case and imposed a concurrent term of one to two years’
incarceration on that case. See Docket No. CP-51-CR-9275-2011.

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        On December 23, 2016, Appellant filed a timely post-sentence motion

stating, “Your Honor sentenced [Appellant] on a violation of probation (CP-

9275-2011) to one—two years SCI concurrently with the sentence of 9-20

years SCI imposed on the above captioned matter. . . . The sentence imposed

was an abuse of the [c]ourt’s discretion and illegal.”     Post Sentence Mot.,

12/23/16, at ¶¶ 1-2. The trial court denied Appellant’s motion on January 4,

2017.

        Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.4             On appeal, counsel filed an

Anders/Santiago brief.

        On June 26, 2018, this Court remanded the case for Appellant’s counsel

to file a proper petition to withdraw from representation or an advocate’s brief.

See Commonwealth v. Soto, 356 EDA 2017, at 5. We further instructed

that if counsel chose to file a petition to withdraw, he had to (1) attach to his

petition a copy of the letter to Appellant advising Appellant of his right to

proceed pro se or with private counsel; and (2) ensure that Appellant had

been furnished a copy of the Anders/Santiago brief. Id. at 5-6.



____________________________________________


4 Appellant’s counsel’s Rule 1925 statement indicated counsel’s intent to seek
withdrawal from representation pursuant to Anders.             See Pa.R.A.P
1925(c)(4). Nevertheless, counsel indicated that Appellant intended to
challenge the trial court’s sentence as “excessive” and that the trial court
abused its sentencing discretion. Statement of Errors Complained of on
Appeal, 3/24/17. The trial court’s Rule 1925(a) opinion addressed Appellant’s
intended claims.

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      On July 2, 2018, counsel filed a petition to withdraw and included a

certificate of service indicating that he had furnished to Appellant the letter

advising Appellant of his rights and the Anders/Santiago brief. See Pet. to

Withdraw, 7/2/18. Appellant did not file a pro se brief or a counseled brief

with new, privately-retained counsel.

      Counsel’s Anders/Santiago brief identifies the following issue:

      1. Whether there are any issues of arguable merit that could be
         raised on direct appeal presently before this Court and whether
         the appeal is wholly frivolous[.]

Anders/Santiago Brief at 4 (full capitalization omitted).

      Because Appellant’s counsel elected to file a petition to withdraw from

representation, we must first address counsel’s petition before reviewing the

merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc). To be permitted to withdraw, 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).

      Here, as mentioned above, counsel filed a petition to withdraw with this

Court in which he stated that after “an extensive review of the record,” he

believes this appeal would be frivolous. Pet. to Withdraw at ¶ 2-3. Counsel


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furnished a copy of the Anders/Santiago brief to Appellant, as well as a letter

advising Appellant of his right to retain new counsel or proceed pro se. Ltr.

to Appellant, 7/2/18.     We conclude that Counsel’s petition to withdraw

complies with the procedural dictates of Anders.

      We next address whether Appellant’s counsel’s brief meets the

requirements established by the Pennsylvania 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;
         (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’s brief provided a summary of the procedural history and the

relevant facts with appropriate citations to the record.     Anders/Santiago

Brief at 5-8. Counsel’s brief also refers to the issue that he believes could

arguably support the appeal. Id. at 16-17. Counsel’s brief states that after

conducting a conscientious review of the record, he has determined that any

appeal would be frivolous, and sets forth his reasons for that conclusion. Id.

at 10-16.     Accordingly, counsel has substantially complied with the

requirements of Anders and Santiago to support counsel’s assessment that

Appellant’s appeal is frivolous.



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      In his Anders/Santiago brief, Appellant’s counsel identifies several

discretionary sentencing claims in support of the sole issue. Counsel notes

possible claims that (1) Appellant’s sentence was excessive; (2) Appellant had

many mitigating factors that weigh in his favor; (3) the trial court could have

placed more weight on Appellant’s rehabilitative needs; and (4) the trial court

should have run Appellant’s sentences concurrently. Id. at 11-17.

      Before addressing the merits of a challenge to the discretionary aspects

of sentencing, we must determine:

      (1) whether the appeal is timely; (2) whether [a]ppellant
      preserved his issue; (3) whether [a]ppellant’s brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the [S]entencing [C]ode.

Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citation

omitted).

      The determination of whether there is a substantial question is made on

a case-by-case basis. Id. “A substantial question exists where a defendant

raises a plausible argument that the sentence violates a provision of the

sentencing code or is contrary to the fundamental norms of the sentencing

process.” Id. (citation and quotation marks omitted).

      This court has held that “[t]here is ample precedent to support a

determination that [the appellant’s allegation that his sentence failed to take

into account his rehabilitative needs] fails to raise a substantial question.”

Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (citation

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omitted).   Further, we have held “on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Radecki, 180 A.3d 441, 469

(Pa. Super. 2018) (citation omitted).    Finally, we have explained that “the

imposition of consecutive rather than concurrent sentences will present 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. Caldwell, 117 A.3d

763, 769 (Pa. Super. 2015) (en banc) (citation omitted); see also

Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super. 2014) (reiterating

that a defendant is not entitled to a “volume discount” for his crimes).

      Instantly, Appellant has filed a timely notice of appeal, a post-sentence

motion, and a Rule 1925 statement. Appellant’s counsel did not include a

Pa.R.A.P. 2119(f) statement of the reasons relied upon for allowance of appeal

in his brief. However, where counsel has filed an Anders/Santiago brief, “we

do not consider counsel’s failure to submit a Rule 2119(f) statement as

precluding review of whether Appellant’s issue is frivolous.” Commonwealth

v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).

      Appellant’s discretionary claims that the trial court erred in imposing an

excessive sentence, in failing to consider his rehabilitative needs and

mitigating factors, and in imposing consecutive rather than concurrent

sentences generally do not raise substantial questions. See Radecki, 180

A.3d at 469, Caldwell, 117 A.3d at 769; Griffin, 65 A.3d at 936. Moreover,

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our independent review compels us to agree with counsel’s assessment that

this appeal is frivolous.

      “Sentencing is a matter vested within the discretion of the trial court

and will not be disturbed absent a manifest abuse of discretion.” Rush, 162

A.3d at 544 (citation omitted). “An abuse of discretion requires the trial court

to have acted with manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.” Id. (citation

omitted). “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.” Id.

(citation omitted).

      In imposing Appellant’s sentence, the trial court stated:

      I have considered the presentence and mental health; the prior
      record; the testimony of the complainant in this case today; the
      police reports; the memorandum by both the DA and Defense
      Counsel, the sentencing memoranda; and the facts and
      circumstances of this case; and, of course, the sentencing
      guidelines.

      [Appellant], we’re lucky this wasn’t a homicide. It easily could
      have been with the firepower you came out with. It’s fortunate,
      although, no badge of honor, that the complainant was only shot
      in the leg, although he almost died on the way to the hospital with
      what happened to him.

                                      ***

      But that’s not the issue, the robbery or the aggravated assault or
      the criminal conspiracy.      The issue is that while you’re on
      probation for what occurred with this previous girlfriend, the
      assault, and also your previous record as a juvenile, as an adult,

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     you had this kind of firepower inside your house, an AK-47. You
     had all this ammunition, which is just unbelievable.

     And there is no reason for any of this to have happened that night.
     It just -- I just don’t understand it. I was asking the complainant
     some very direct questions like why would he come to your door
     after being shot at. That I don’t understand either. But that’s not
     the issue.

     Whether he came to your door, whether he was parked on the
     street, whether he was screaming at you, curse words, nobody
     deserves to be shot. The law doesn’t say, okay, it’s all right to
     shoot somebody if they do what he did. Just like it’s not okay to
     kill a drug dealer on the corner either.      The law protects
     everybody, whatever they’re doing, as long as he wasn’t
     assaulting you and you needed to use deadly force, which is not
     the case here.

                                    ***

     I give you that sentence not out of any joy but because I think it’s
     necessary to both protect the public and prevent this kind of thing
     from happening again. I don’t know what drove you to this. And
     I would have given you a far longer sentence if you hadn’t pled
     guilty. I gave you credit for doing that and sparing everybody
     from coming in and testifying.

     However, I have to tell you that opening fire like you did and what
     occurred here easily could be a homicide. It has no place, whether
     it’s in North Philadelphia or any other part of the city. I hope that
     you will use the time in prison to deal with whatever counseling
     or whatever other issues have driven you to this point to have this
     kind of a criminal record, because you will get out.

                                    ***

     You will get out. You will have a significant period of your life
     forward. But the question will be when you do get out, are you
     going to have the tools to be successful. Are you going to be back
     for parole violations? Are you going to spend a good part of the
     rest of your life back in jail? Or are you going move forward in a
     different way? That’s all about you, about what you do while
     you’re incarcerated, what programs you take advantage of, what
     you do to make sure that you never do this again.

N.T., 12/15/16, at 49-52.

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      In the trial court’s Pa.R.A.P. 1925(a) opinion, the trial court incorporated

the above-recited portion of the sentencing hearing where it explained the

reasons for the sentence it imposed. See Trial Ct. Op., 9/14/17, at 6-7. The

court further added that, “[a]s is evident from the record, the sentence

imposed in this case was not manifestly unreasonable nor was it the product

of partiality, prejudice, bias, or ill will. Rather, it is entirely appropriate given

the violence committed by Appellant.” Id. at 8.

      Here, it is clear that at the time of sentencing, the trial court considered

the presentence investigation report, the mental health report, Appellant’s

sentencing memorandum, and the Sentencing Guidelines. N.T., 12/15/16, at

49. However, the court also considered the facts and circumstances of this

case, Appellant’s prior record score, the Commonwealth’s sentencing

memorandum, and the testimony from the complainant. Id. Ultimately, the

court weighed all of those factors and found that a sentence of nine to twenty

years’ incarceration was necessary to protect the public and to “prevent this

kind of thing from happening again.” Id. at 51-52.

      Therefore, the record does not support the assertion that the trial court

imposed an excessive sentence, failed to consider Appellant’s mitigating

factors and rehabilitative needs, or that it erred in imposing Appellant’s

sentences consecutively. See id. at 49-52. Accordingly, the identified claims

are frivolous as the record contains no indication the trial court abused its

discretion when sentencing Appellant.




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      Lastly, our independent review of the record does not reveal any

additional, non-frivolous issues in this appeal.    See Commonwealth v.

Yorgey, --- A.3d ----, 3376 EDA 2016, *5 (Pa. Super. filed May 24, 2018).

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

judgment of sentence.

      Petition for leave to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/18




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