J-S15010-19 & J-S15011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAMEYON MASSEY                             :
                                               :
                       Appellant               :   No. 818 WDA 2018

             Appeal from the Judgment of Sentence April 24, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0003146-2017


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAMEYON MASSEY                             :
                                               :
                       Appellant               :   No. 819 WDA 2018

             Appeal from the Judgment of Sentence April 24, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0003159-2017


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED APRIL 24, 2019

        Appellant, Dameyon Massey, appeals from judgments of sentence

imposed after he pleaded guilty in two criminal cases. Appellant’s appellate

counsel has filed petitions to withdraw and Anders1 briefs, stating that the


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1   Anders v. California, 386 U.S. 738 (1967).


*    Retired Senior Judge assigned to the Superior Court.
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appeals are wholly frivolous. After careful review, we grant counsel’s petitions

to withdraw and affirm.

        The two criminal cases arose out of different events.    In CP-25-CR-

0003146-2017 (No. 3146-2017), Appellant pleaded guilty to charges of

carrying a firearm without a license and reckless endangerment 2 from an

incident on March 21, 2017 when Appellant, who was not licensed to carry a

firearm, had a handgun in his possession and fired it at the occupants of a

car. No. 3146-2017 N.T., 3/28/18, at 7-8. In CP-25-CR-0003159-2017 (No.

3159-2017), Appellant pleaded guilty to charges of possession of a firearm by

a prohibited person, receiving stolen property, and possession with intent to

deliver a controlled substance (PWID)3 that arose when Appellant, who was

prohibited as a result of a prior conviction from possessing firearms, was found

with a stolen handgun and heroin in his possession on September 11, 2017.

No. 3159-2017 N.T., 2/2/18, at 8-10. On April 24, 2018, the sentencing court

held a sentencing hearing in both cases and imposed an aggregate sentence

of 36-72 months confinement in No. 3146-2017 and an aggregate sentence

of 42-84 months confinement in No. 3159-2017. The sentencing court further

ordered that the sentences in the two cases are to run consecutively.

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2   18 Pa.C.S. §§ 6106 and 2705, respectively.
3 18 Pa.C.S. §§ 6105(a)(1) and 3925, and 35 P.S. § 780-113(a)(30),
respectively.




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Appellant filed timely post-sentence motions in both cases. On May 3, 2018,

the sentencing court denied Appellant’s post-sentence motions.

       On June 1, 2018, Appellant filed timely direct appeals from both

judgments of sentence.4         On December 18, 2018, appellate counsel filed

Anders briefs and petitions to withdraw as counsel in both appeals. In each

of her Anders briefs, appellate counsel presents the following issue:

       Whether the appellant’s sentence is manifestly excessive, clearly
       unreasonable and inconsistent with the objectives of the
       Sentencing Code?

818 WDA 2018 Anders Br. at 3; 819 WDA 2018 Anders Br. at 3. Appellant

has not filed any pro se response to counsel’s petitions to withdraw or Anders

briefs.   The Commonwealth filed a brief in support of affirmance of the

judgments of sentence in both appeals.

       Before this Court can consider the merits of these appeals, we must first

determine whether appellate counsel has satisfied all of the requirements that

court-appointed counsel must meet before leave to withdraw may be granted.

Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en

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

(en banc).




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4In accordance with Pa.R.A.P. 1925(c)(4), appellate counsel filed statements
of intent to file an Anders brief in lieu of statements of errors complained of
on appeal. The trial court did not file an opinion in either case.

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      To withdraw from representing a convicted defendant on direct appeal

on the basis that the appeal is frivolous, counsel must (1) petition the court

for leave to withdraw stating that he has made a conscientious examination

of the record and has determined that the appeal would be frivolous; (2) file

a sufficient Anders brief; and (3) provide a copy of the Anders brief to the

defendant and advise the defendant of his right to retain new counsel or

proceed pro se and to raise any additional points that he deems worthy of the

court’s attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183

(Pa. Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply

with the all of the following requirements:

      [T]he Anders 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also

Dempster, 187 A.3d at 270; Commonwealth v. Zeigler, 112 A.3d 656, 660

(Pa. Super. 2015). If counsel has satisfied the above requirements, it is then

this Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is wholly frivolous.

Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660.

      In these appeals, appellate counsel states in each of her petitions to

withdraw that she has reviewed the entire record and determined that there

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are no non-frivolous grounds for the appeal. Appellate counsel’s December

18, 2018 letters to Appellant provided copies of the Anders briefs to Appellant

and advised him of his right either to retain new counsel or to proceed pro se

on appeal to raise any points he deems worthy of the court’s attention.

Further, each of appellate counsel’s Anders briefs provides procedural and

factual summaries of the case with references to the record and cites and

discusses the applicable law on which counsel bases her conclusion that there

are no non-frivolous issues that she can raise on Appellant’s behalf. Appellate

counsel has thus filed sufficient Anders briefs and has fully complied with the

procedural requirements for withdrawal as counsel in both appeals.

      We therefore proceed to conduct an independent review to ascertain

whether the appeals are indeed wholly frivolous. This Court first considers

the issues raised by counsel in the Anders brief and determines whether they

are in fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.

Super. 2018) (en banc); Dempster, 187 A.3d at 272. In addition, if the Court

finds all of those issues frivolous, this Court conducts an examination of the

record to discern if there are any other issues of arguable merit overlooked by

counsel. Yorgey, 188 A.3d at 1196-97; Dempster, 187 A.3d at 271-72.

      The lone issue raised in counsel’s Anders briefs is whether the

sentences imposed in the two cases are “manifestly excessive, clearly

unreasonable and inconsistent with the objectives of the Sentencing Code.”

These are challenges to the discretionary aspects of Appellant’s sentences and


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are therefore not appealable as of right.             Dempster, 187 A.3d at 272;

Bynum-Hamilton, 135 A.3d at 184. Rather, an appeal from the discretionary

aspects of a sentence is permitted only after this Court determines that there

is a substantial question that the sentence was not appropriate under the

Sentencing Code. Dempster, 187 A.3d at 272; Bynum-Hamilton, 135 A.3d

at 184; Zeigler, 112 A.3d at 661.5 A claim that a sentence within statutory

limits is excessive is generally not sufficient to raise a substantial question,

absent a claim that the sentence violates a specific provision of the Sentencing

Code or that the sentencing court did not consider the sentencing guidelines

or factors concerning the crimes and the defendant that a sentencing court is

to consider under the Sentencing Code. Dempster, 187 A.3d at 272-23 n.6;

Bynum-Hamilton,          135    A.3d    at     184;   Zeigler,   112   A.3d   at   662;

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.                          Super. 2012);

Commonwealth v. Titus, 816 A.2d 251, 255–56 (Pa. Super. 2003).

       Here, the sentences were well within the sentencing guidelines.

Appellant had a prior record score of five, as a result of past felony burglary

and firearms convictions. N.T., 4/24/18, at 7. In No. 3146-2017, Appellant

was sentenced to 36-72 months for carrying a firearm without a license and


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5 An appellant challenging the discretionary aspects of sentence is also
required to satisfy other requirements, including filing a timely post sentence
motion and complying with Pa.R.A.P. 2119(f). See, e.g., Dempster, 187
A.3d at 272. Appellant has satisfied those other requirements here.



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12-24 months, running concurrently, for reckless endangerment. The Offense

Gravity Scores for these offenses were nine and three, respectively. 204 Pa.

Code § 303.15. The standard ranges for the minimum sentence6 for these

offenses under the sentencing guidelines were therefore 48-60 months and 6-

16 months, respectively. 204 Pa. Code §§ 303.9(e), 303.16(a). In No. 3159-

2017, Appellant was sentenced to 21-42 months for possession of a firearm

by a prohibited person, 12-24 months, running concurrently, for receiving

stolen property, and 21-42 months, running consecutively, for PWID.              The

Offense Gravity Scores for these offenses were six, five, and six, respectively.

204 Pa. Code § 303.15.         The standard ranges for the minimum sentence for

these offenses under the sentencing guidelines were therefore 21-27 months,

12-18 months, and 21-27 months, respectively. 204 Pa. Code §§ 303.9(e),

303.16(a).

       Moreover, the record is clear that the sentencing court considered the

relevant factors concerning Appellant and the crimes in imposing these

sentences. At the sentencing hearing, the court explained on the record that

it was taking into account the statements of counsel, Appellant’s statement to

the court, in which he had apologized for his actions, Appellant’s family

support,    Appellant’s     age,    Appellant’s   prior   record,   the   presentence



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6 Where a defendant is sentenced to imprisonment, the maximum sentence
must be at least twice the length of the minimum sentence that the court
imposes. 42 Pa.C.S. § 9756(b)(1).

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investigation report, the details of the crimes, the sentencing guidelines, and

the Appellant’s sentencing memoranda. N.T., 4/24/18, at 9-10. The mere

fact that some of the sentences were imposed consecutively does not raise a

substantial question where, as here, the resulting total aggregate sentence is

not extremely lengthy for the criminal conduct at issue, the crimes for which

consecutive sentences were imposed arose out of separate conduct, and there

is no basis for a claim that the sentencing court failed to consider mitigating

factors.   Commonwealth v. Radecki, 180 A.3d 441, 468-70 (Pa. Super.

2018); Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014).

      Based on the foregoing, we agree with appellate counsel that the issue

raised by Appellant lacks any arguable merit. In addition, we have reviewed

the certified record and have discovered no additional non-frivolous issues.

Therefore, we grant appellate counsel’s petition to withdraw and affirm the

sentencing court’s judgment of sentence.

      Judgments of sentence affirmed.      Petitions to withdraw as counsel

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2019


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