J-S60006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN CHRIS CHAPMAN                        :
                                               :
                       Appellant               :   No. 624 MDA 2018

             Appeal from the Judgment of Sentence March 14, 2018
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0002210-2017


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

MEMORANDUM BY SHOGAN, J.:                             FILED JANUARY 09, 2019

        Appellant, Kevin Chris Chapman, appeals from the judgment of sentence

entered following his convictions of possession with intent to deliver a

controlled substance and endangering the welfare of children.1 In addition,

appellate counsel has filed a petition to withdraw her representation and a

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a

withdrawal from representation on direct appeal. We grant counsel’s petition

to withdraw and affirm the judgment of sentence.

        The trial court summarized the history of this case as follows:

              On December 14, 2017, [Appellant] pled guilty to one count
        of possession with intent to deliver crack cocaine and one count
        of endangering the welfare of children. The charges arose on
____________________________________________


1   35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 4303.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S60006-18


     September 15, 2017, when [Appellant] conducted a drug
     transaction in his car in the presence of his three children, who
     were ten, six and six months old. When the police searched
     [Appellant], he had 11.6 grams of crack cocaine in his possession.

            On March 14, 2018, [Appellant] was sentenced to an
     aggregate sentence of 4 to 10 years. [Appellant’s] counsel
     represented that [Appellant] was having financial trouble, and
     that he loves his children and resorted to this activity because he
     was trying to keep a roof over their heads. Transcript of March
     14, 2018 Sentencing at 3. [Appellant] also stated that he was
     just trying to make sure his wife and kids were not homeless. Id.
     at 4. The court noted that [Appellant] expressing concern about
     his wife and kids, when he came from his home in New York to
     Pennsylvania with two children and an infant in the car with him
     to make a drug sale hardly sounds like concern for his children.
     Id. The court asked whether he was aware of how a drug deal
     can go bad and turn into a dangerous situation, and [Appellant]
     said that he was. Id. The court stated that this was purely a
     financial situation and one in which he was exposing three children
     to danger. Id. at 5. The court also noted that he was on New
     York State Parole at the time, and that he appeared to be here for
     the sole purpose of making money. Id. The court also stated that
     his assets include not only a home, but also a 2013 Porsche and
     a 2015 Mercedes, and if he needed money to save his house, he
     could have sold the Porsche instead of drugs. Id. at 5-6.

            On the charge of possession of a controlled substance with
     intent to deliver, the court sentenced [Appellant] to 3 to 8 years.
     Id. at 6. On the count of endangering the welfare of children, the
     court sentenced [Appellant] to 1 to 2 years, consecutive to the
     first sentence. Id. The aggregate sentence was thus 4 to 10
     years. The court noted that the sentence for the possession with
     intent to deliver charge was in the aggravated range because this
     was purely a financial enterprise on [Appellant’s] part, he was not
     an addict, and he has absolutely no ties to Lackawanna County
     and obviously came here specifically to sell drugs. Id. at 6-7. The
     court stated that it took into consideration the nature and gravity
     of the offense, [Appellant’s] specific actions, and his rehabilitative
     needs, which are minimal since he does not have a drug habit. Id.
     at 7.

          On March 19, 2018, [Appellant] filed a motion for
     reconsideration which was denied that same date. On April 6,

                                     -2-
J-S60006-18


      2018, [Appellant] filed a Notice of Appeal, and on April 9, 2018,
      this court ordered [Appellant] to file a concise statement of the
      matters complained of on appeal within 21 days pursuant to
      Pa.R.A.P. 1925(b). On April 30, 2018, [Appellant] filed a Concise
      Statement of Matters Complained of on Appeal.

Trial Court Opinion, 6/12/18, at 1-3. The trial court likewise complied with

Pa.R.A.P. 1925(a).

      As noted, counsel has filed a petition to withdraw from representation.

Before we address any questions raised on appeal, we must resolve appellate

counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030

(Pa. Super. 2013) (en banc). There are procedural and briefing requirements

imposed upon an attorney who seeks to withdraw on direct appeal.            The

procedural mandates are that 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.

Id. at 1032 (citation omitted).

      In this case, those directives have been satisfied. Within the petition to

withdraw, counsel averred that she conducted a conscientious review of the

record and pertinent legal research. Following that review, counsel concluded

that the present appeal is frivolous. Counsel sent Appellant a copy of the

Anders brief and petition to withdraw, as well as a letter, a copy of which is

attached to the petition to withdraw. In the letter, counsel advised Appellant


                                     -3-
J-S60006-18


that he could represent himself or that he could retain private counsel.

Appellant has not filed any additional documents with this Court.

      We now examine whether the Anders brief satisfies the Supreme

Court’s dictates in Santiago, which provide that:

      in the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, 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; (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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.      The brief sets forth the

procedural history of this case, outlines pertinent case authority, and

discusses counsel’s conclusion that the appeal is frivolous. We thus conclude

that the procedural and briefing requirements for withdrawal have been met.

      Counsel has identified the following two issues that Appellant believes

entitle him to relief:

      A. Whether the sentencing court imposed a sentence on the
      [possession with intent to deliver] charge in the aggravated range
      where there were no aggravating circumstances surrounding the
      commission of the crime?

      B. Whether the sentences imposed were inappropriately harsh,
      excessive, unreasonable and an abuse of discretion?

Anders Brief at 4.       These two issues raise challenges to the discretionary

aspects of sentencing.


                                       -4-
J-S60006-18


      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). An appellant challenging the discretionary

aspects of his sentence must invoke this Court’s jurisdiction by satisfying a

four-part test:

      [W]e conduct a four-part analysis to determine: (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).

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

omitted; brackets in original).

      Whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question to be evaluated on a case-by-case

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

As to what constitutes a substantial question, this Court does not accept bald

assertions of sentencing errors.   Commonwealth v. Malovich, 903 A.2d

1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the

sentencing court’s actions violated the sentencing code. Id.

      Herein, the first three requirements of the four-part test are met.

Appellant brought an appropriate appeal, raised the challenge in a post-




                                    -5-
J-S60006-18


sentence motion,2 and included in his appellate brief the necessary concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

       In his Rule 2119(f) statement, Appellant first argues that the trial court

abused its discretion in imposing a sentence in the aggravated range when it

relied solely upon an impermissible factor.               Appellant’s Brief at 9-10.

Appellant claims that the trial court based its reasoning for the aggravated

sentence on the sole fact that Appellant was selling drugs for profit. Id. at

10. “This Court has found a substantial question exists where the sentencing

court failed to provide sufficient reasons for imposing a sentence outside of

the guidelines.” Commonwealth v. Robertson, 874 A.2d 1200, 1212 (Pa.

Super. 2005) (citing Commonwealth v. Monahan, 860 A.2d 180, 182 (Pa.

Super. 2004)).      Similarly, we have held that a substantial question exists

where an appellant has claimed that the sentencing court considered improper

factors   in   placing    the    sentence      in   the   aggravated   range.   See



____________________________________________


2 The Commonwealth argues that this issue has not been preserved for review
because Appellant did not raise a claim that there were no aggravating
circumstances surrounding the crime in his post-sentence motion filed with
the trial court. Commonwealth’s Brief at 4. Upon review of Appellant’s motion
for reconsideration of sentence, it appears that the Commonwealth is making
a hyper technical argument with regard to the framing of the issue.
Accordingly, we decline to conclude that the claim is waived.

                                           -6-
J-S60006-18


Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (“Based

on [the a]ppellant’s assertion that the sentencing court considered improper

factors in placing the sentence in the aggravated range, we conclude that [the

a]ppellant presents a substantial question on appeal.”). Therefore, insofar as

Appellant implies that the court imposed an aggravated-range sentence based

upon impermissible factors, a substantial question exists. As such, we will

review the merits of Appellant’s first sentencing claim.

      Pertaining to his second issue, Appellant claims that the trial court’s

sentences were inappropriately harsh and excessive. Appellant’s Brief at 10-

11. We do not accept bald assertions of sentencing errors. Commonwealth

v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006) (citing Commonwealth

v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)). See also Commonwealth v.

Harvard, 64 A.3d 690, 701 (Pa. Super. 2013)         (observing that a bald or

generic assertion that a sentence is excessive does not, by itself, raise a

substantial question justifying this Court’s review of the merits of the

underlying claim); Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa.

Super. 2007) (claiming a sentence is excessive or unreasonable does not raise

a substantial question).   Accordingly, we are constrained to conclude that

Appellant has failed to present a substantial question for our review. Thus,

we decline to address appellant’s second sentencing issue.

      Appellant asserts that, in fashioning his sentence, the sentencing court

improperly imposed an aggravated-range sentence. Appellant’s Brief at 11-


                                     -7-
J-S60006-18


13. Appellant claims the trial court improperly relied on the fact that he was

selling drugs for profit, which was considered in the Sentencing Guidelines.

Id. at 12. However, we discern no abuse of discretion on the part of the

sentencing court.

       It is undisputed 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. Commonwealth v. Fullin, 892

A.2d 843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is

not shown merely by an error in judgment. Id. Rather, an 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. Id.

       The sentencing judge has broad discretion in determining the proper

penalty, and this Court accords the sentencing court great deference, as it is

the sentencing court that is in the best position to view a defendant’s

character, displays of remorse, defiance, or indifference and the overall effect

and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quotations and citations omitted).3 When imposing a sentence, the

____________________________________________


3   The Walls Court instructed the following:

       In making this “unreasonableness” inquiry, the General Assembly
       has set forth four factors that an appellate court is to consider:




                                           -8-
J-S60006-18


sentencing court must consider “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). As we have stated, “[A] court is required to consider the particular

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

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,

the court should refer to the defendant’s prior criminal record, his age,

personal characteristics and his potential for rehabilitation.” Id.

       Moreover, the Pennsylvania Supreme Court reiterated “the guidelines

have no binding effect, create no presumption in sentencing, and do not

predominate over other sentencing factors—they are advisory guideposts that

are valuable, may provide an essential starting point, and that must be



____________________________________________


       (d) Review of the record—In reviewing the record the appellate
       court shall have regard for:

              (1) The nature of the 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     pre-sentence
              investigation.

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

              (4) The guidelines promulgated by the commission.

       42 Pa.C.S.A. § 9781(d).

Walls, 926 A.2d at 963.


                                           -9-
J-S60006-18


respected and considered; they recommend, however, rather than require a

particular sentence.” Commonwealth v. Perry, 32 A.3d 232, 240 (Pa. 2011)

(citation omitted).

      Simply put, the sentencing judge must state his or her reasons for
      the sentence imposed, a discourse on the court’s sentencing
      philosophy . . . is not required. The sentencing judge must explain
      its deviation from the guidelines if he or she chooses to sentence
      outside the guidelines. . . . The sentencing court is not required
      to state its reasons for sentencing within one guideline range
      over another.

Commonwealth v. Hill, 629 A.2d 949, 953 (Pa. Super. 1993) (citations and

quotations omitted, emphases in original).

      Further, “[t]he guidelines only include a prior conviction score and do

not take into account whether an offense is committed while the offender was

on probation, parole or some other form or type of supervised release.”

Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003). “This

is an extraneous factor that can be separately considered by the sentencing

court.” Id. (observing that the sentencing court may consider a defendant’s

probation/parole status at time of crime in fashioning sentence).

      In addition, “[o]ur Supreme Court has determined that where the trial

court is informed by a pre-sentence report, it is presumed that the court is

aware of all appropriate sentencing factors and considerations, and that where

the court has been so informed, its discretion should not be disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).


                                    - 10 -
J-S60006-18


      Our review of the record reflects that, at the time of Appellant’s

sentencing, the trial court had received and reviewed a presentence report.

N.T., 3/14/18, at 2-3, 7.      Further, the trial court heard argument from

Appellant’s counsel, which included exceptions to the presentence report. Id.

at 2-4. The trial court then heard Appellant’s allocution. Id. at 4.

      Immediately following Appellant’s allocution, the trial court had the

following interaction with Appellant:

      THE COURT: [Appellant], saying that you’re concerned about your
      wife and your kids, when you’re coming from New York to
      Pennsylvania, and you have two toddlers and an infant in the car
      with you to make a drug sale, I mean that hardly sounds like
      concern for your children. I’m sure you may be aware, or you can
      at least imagine how a drug deal can go bad, and it can turn into
      a dangerous situation, correct?

      [APPELLANT]: Correct.

      THE COURT: You got two kids in the car. And to say, well, I
      needed money so I’m selling drugs, I have more sympathy for
      someone who has a habit and who needs to sell drugs in order to
      address the banking needs. In your case, this is purely a financial
      situation, and one in which you’re exposing two toddlers, an
      infant, and you’re on New York State parole at the same time.
      You indicated that you don’t have a drug problem. So I can only
      conclude that you’re here for the sole purpose of making money
      and you don’t mind if it’s at the expense of someone else. And I
      note, when you listed your assets, your attorney referred to you[r]
      home, but I also note among the financial assets are a 2013
      Porsche and a 2015 Mercedes.

      [APPELLANT]: Yes, sir.

N.T., 3/30/17, at 4-5.




                                    - 11 -
J-S60006-18


      Also, at the time it imposed the judgment of sentence, the court offered

the following comments, thereby revealing that it had considered Appellant’s

presentence report:

             In regard to the charge of possession of a controlled
      substance ..., you’re to be incarcerated in a state correctional
      system for a minimum period of time which shall be three years
      to a maximum which shall be eight years. With regard to …
      endangering the welfare of children, violating a duty of care, I’m
      going to order that you be incarcerated for a minimum period of
      one year to a maximum which shall be two, and they will be
      consecutive to each other, so that it is an aggregate sentence, the
      minimum four years, the maximum shall be ten years. I note that
      the sentence on the endangering the welfare is in the standard
      range, however, the sentence for the [possession with intent to
      deliver conviction] is in the aggravated range. I’ve gone there
      because of the fact that this is purely a financial enterprise on your
      part. That you were not an addict. You have absolutely no ties
      to Lackawanna County or this area, and you obviously came here
      specifically to sell drugs. Accordingly, the minimum in that case
      is in the aggravated range. . . .

            I’ve taken into consideration the nature and gravity of the
      offense, your own specific action in this matter, the rehabilitative
      needs, which are minimal, since you indicated there is no drug
      habit here and the entire contents of this [presentence]
      investigation. . . .

Id. at 6-7.

      The trial court further elaborated its reasoning for imposition of the

specific sentence upon Appellant in its written opinion, as follows:

         Here, the court gave several reasons for the sentences
      imposed, including that [Appellant ]had his three children in the
      car with him while he conducted drug transactions, exposing them
      to great danger. The court also considered that [Appellant] drove
      here from New York for the sole purpose of selling drugs, and that
      he was not selling drugs to support a drug habit but rather for
      financial reasons. The court also considered that [Appellant] was
      on New York State parole when he committed these crimes.

                                     - 12 -
J-S60006-18


      Furthermore, the court stated that the sentence on the possession
      with intent to deliver charge was in the aggravated range because
      this was purely a financial enterprise on [Appellant’s] part, he was
      not an addict, and he has absolutely no ties to Lackawanna County
      and came here specifically to sell drugs. Contrary to [Appellant’s]
      assertion, the court did not sentence him in the aggravated range
      because of his prior record score. [Appellant] has not shown how
      the sentences were not appropriate under the Sentencing Code or
      contrary to the fundamental norms underlying the sentencing
      process, and thus has not shown that the sentences were harsh
      or excessive. [Appellant] has also failed to show that there were
      not aggravating circumstances justifying a sentence in the
      aggravated range.

Trial Court Opinion, 6/12/18, at 4.

      We conclude that the reasons the trial judge offered for the sentence he

imposed were more than sufficient, and his consideration of the fact that

Appellant was on parole at the time he committed the present crimes was

made in conjunction with other factors. Also, because the trial court had been

fully informed and relied upon the presentence report, we conclude that the

trial court did not abuse its discretion in fashioning Appellant’s sentence.

Accordingly, Appellant’s claim that the trial court failed to consider the

appropriate factors in imposing a sentence within the aggravated range of the

sentencing guidelines lacks merit.

      Finally, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case that

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.

Super. 2014).   Having concluded that there are no meritorious issues, we




                                      - 13 -
J-S60006-18


grant Appellant’s counsel permission to withdraw, and we affirm the judgment

of sentence.

     Petition of counsel to withdraw is granted.     Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2019




                                   - 14 -
