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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
JEFFERY L. PATTON,                      :          No. 1227 EDA 2014
                                        :
                         Appellant      :


            Appeal from the Judgment of Sentence, March 19, 2014,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0012416-2011


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 10, 2015

        Appellant, Jeffery L. Patton, appeals from the judgment of sentence

imposed on March 19, 2014. Appellant’s counsel has filed an Anders1 brief

together with a petition to withdraw as counsel; appellant has filed a pro se

response to the Anders brief. We grant counsel’s petition and affirm.

        A review of the record reveals the following facts and procedural

history.   Appellant accosted the victim in the dark, thrust a taser within

inches of his face, and threatened to use it unless the victim gave him

money. Appellant took the victim’s money and then threatened to hurt his

family if the crime was reported. Following his arrest, an omnibus motion




1
    Anders v. California, 386 U.S. 738 (1967).
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was filed challenging identification evidence and claiming appellant’s arrest

was illegal; the omnibus motion was never addressed. (Docket #1.)

        Appellant proceeded to a bench trial before the Honorable Angela J.

Foglietta and was convicted of robbery, use of an incapacitation device,

theft, simple assault, terroristic threats, recklessly endangering another

person, and possessing an instrument of crime. Appellant filed a notice of

appeal, and a panel of this court affirmed his convictions but vacated and

remanded for resentencing as the trial court failed to merge his convictions

for theft, simple assault, and REAP with his robbery conviction.                On

March 19, 2014, Judge Foglietta resentenced appellant to concurrent terms

of three to six years’ incarceration for robbery and use of an incapacitation

device, to be followed by three years of probation on the non-merged

offenses. On April 21, 2014, appellant filed an untimely pro se motion for

reconsideration of sentence.2 (Docket #10.)

        On April 21, 2014, defense counsel filed a timely notice of appeal. The

trial court issued an order to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.           On July 22,

2014, counsel filed a statement of intent to file an Anders brief pursuant to

Rule 1925(c)(4).      The trial court filed a Rule 1925(a) opinion on July 29,

2014,    addressing    the   discretionary   aspects   of   appellant’s   sentence.



2
  Pennsylvania Rule of Criminal Procedure 720 allows ten days for the filing
of a post-trial motion.


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Thereafter, on September 4, 2014, counsel filed an Anders brief and an

application to withdraw as counsel. The sole issue presented for our review

is a challenge to the discretionary aspects of his sentence. (Appellant’s brief

at 2.)   The Commonwealth filed its brief on December 1, 2014.                    On

January 20, 2015, appellant filed his pro se “Answer to Application to

Withdraw    as    Counsel   (Petition   to   Challenge   Petition    to   Withdraw),”

essentially challenging the Anders brief filed by counsel and stating there

remains a “non-frivolous” issue concerning a motion to suppress his

identification which his attorney did not present to the trial court.

      As noted above, appellant’s counsel, Jeffrey P. Shender, Esq., has filed

a petition to withdraw and accompanying Anders brief.               “When presented

with an Anders brief, this Court may not review the merits of the underlying

issues without first passing on the request to withdraw.” Commonwealth

v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation

omitted).

            In order for counsel to withdraw from an appeal
            pursuant to Anders, certain requirements must be
            met, and 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 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.

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

     Our review of Attorney Shender’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

court’s attention, and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005).    See Daniels, 999 A.2d at 594 (“While the

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice

requirements set forth in Millisock that remain binding legal precedent.”).

As Attorney Shender has complied with all of the requirements set forth

above, we now turn to any issues counsel states arguably support the

appeal.

     Again, the issue herein presents a challenge to the discretionary

aspects of appellant’s sentence. “Challenges to the discretionary aspects of



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sentencing    do   not   entitle   a   petitioner   to   review   as     of   right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).                   Before

this court can address such a discretionary challenge, an appellant must

comply with the following requirements:

             An appellant challenging the discretionary aspects of
             his sentence must invoke this Court’s jurisdiction by
             satisfying a four-part test: (1) whether 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 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).

Id.

      Our review of the record reveals that appellant did not object at the

sentencing hearing on March 19, 2014, or file a motion for reconsideration of

sentence.3    Thus, it is clear appellant first raised his challenge to the

discretionary aspects of the sentence in his appellate brief.          As such, the

issue is waived. Pa.R.A.P. 302(a) (issues not raised in the lower court are

waived and cannot be raised for the first time on appeal).




3
  Appellant did file a pro se post-sentence motion. However, that motion
failed to preserve his discretionary sentencing claim for two reasons. First,
the motion was untimely filed. Second, appellant had no right to file a
pro se motion because he was represented by counsel; his pro se
post-sentence motion was a nullity, having no legal effect. Commonwealth
v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007).


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     Having determined that the instant appeal is wholly frivolous, and

after our own independent review, there are no issues of arguable merit

apparent from the record; we will grant Attorney Shender’s petition to

withdraw.    We now consider the issues raised in appellant’s pro se

response.

     Appellant appears to argue that trial counsel was ineffective for failing

to litigate a motion to suppress challenging his identification.        This claim

must be deferred until collateral review.    Commonwealth v. Barnett, 25

A.3d 371, 377 (Pa.Super. 2011) (en banc) (holding that this court cannot

review ineffective assistance of counsel claims on direct appeal absent

defendant’s waiver of PCRA review). As this court recently explained:

                   In Commonwealth v. Grant, 572 Pa. 48, 813
            A.2d 726 (2002), our Supreme Court announced a
            general rule providing a defendant “should wait to
            raise claims of ineffective assistance of trial counsel
            until collateral review” pursuant to the Post
            Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
            9546.       Grant, at 738.             Nevertheless, in
            Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d
            831 (2003), reargument denied, July 17, 2003,
            cert. denied, Bomar v. Pennsylvania, 540 U.S.
            1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), our
            Supreme Court recognized an exception to Grant
            and found that where ineffectiveness claims had
            been raised in the trial court, a hearing devoted to
            the question of ineffectiveness was held at which
            trial counsel testified, and the trial court ruled on the
            claims, a review of an ineffectiveness claim was
            permissible on direct appeal. See Bomar, 826 A.2d
            at 853-854; See also Commonwealth v. Fowler,
            893      A.2d    758,     763-764       (Pa.Super.2006);
            Commonwealth v. Wright, 599 Pa. 270, 319-320,
            961 A.2d 119, 148 (2008).


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           ....

                 However, most recently, in [Barnett, supra at
           376-378] this Court concluded our Supreme Court
           has limited the applicability of Bomar and that
           Barnett’s assertions of counsel’s effectiveness are
           appropriately raised only on collateral review. We
           ultimately determined that “[w]ith the proviso that a
           defendant may waive further PCRA review in the trial
           court, absent further instruction from our Supreme
           Court, this Court, pursuant to Wright and Liston,
           will no longer consider ineffective assistance of
           counsel claims on direct appeal.” Id. at 377. As
           such, we dismiss Appellant’s first issue without
           prejudice to her ability to raise it in a subsequent
           PCRA petition, if she so chooses.

Commonwealth v. Quel, 27 A.3d 1033, 1036-1037 (Pa.Super. 2011)

(footnote omitted).4

     Herein, there is no indication in the record that appellant made an

express waiver of PCRA review.     Accordingly, we are unable to reach the

merit of this issue on direct appeal.   Thus, we dismiss this claim without

prejudice to appellant’s right to present it in a subsequent PCRA petition.

Furthermore, this underlying issue cannot be raised in this appeal as only

resentencing was the subject of this appeal.




4
  Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), decided
October 30, 2013, our supreme court addressed the continued viability and
limited scope of the Bomar exception. The exceptions discussed in Holmes
do not apply to the facts in this case.


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      Judgment of sentence affirmed. Counsel’s application to withdraw is

granted. Appellant’s pro se “Answer to Application to Withdraw as Counsel

(Petition to Challenge Petition to Withdraw)” is denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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