J-S74037-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37


COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                  Appellee                  :
                                            :
             v.                             :
                                            :
JOHNNY DEMOND FOSSETT,                      :
                                            :
                  Appellant                 : No. 1424 EDA 2014

       Appeal from the Judgment of Sentence Entered December 16, 2013
              in the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0001410-2012

BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                          FILED JUNE 25, 2015

        Johnny Demond Fossett (Appellant) appeals from his aggregate

judgment of sentence of 27 to 65 years of imprisonment after pleading

guilty to third-degree murder, robbery, theft, and unlawful restraint. 1       In

addition, Appellant’s counsel has filed a petition to withdraw and a brief

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

grant the petition to withdraw and affirm the judgment of sentence.

        The trial court offered the following summary of the facts of this case.

              On January 15, 2012, Appellant caused the death of the
        victim, Lori Jefferson, in her home located in Springfield
        Township, Montgomery County. In the midst of an argument
        between Appellant and the victim, Appellant choked the victim.
        Appellant bound the victim’s hands and feet behind her back


1
    18 Pa.C.S. §§ 2502(c), 3701(a), 3921(a), and 2902(a), respectively.


* Retired Senior Judge assigned to the Superior Court.
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     with a cord and placed a gag in her mouth. Appellant left the
     victim in that condition alone in the second floor bedroom.
     Appellant stole the victim’s 2007 Volvo and drove to Philadelphia
     County and turned himself in.

           On December 16, 2013, a sentencing hearing was
     conducted before the [trial court]. At the hearing, defense
     counsel presented the testimony of Dr. Alan Tepper, an expert in
     forensic and clinical psychology.      Dr. Tepper performed a
     psychological evaluation of Appellant. As part of his evaluation,
     Dr. Tepper met with Appellant on two occasions at the
     Montgomery County jail. Prior to and subsequent to meeting
     with Appellant, Dr. Tepper reviewed discovery materials related
     to the criminal matter and past mental health records from
     Florida, Pennsylvania and from [the] Montgomery County
     Correctional Facility. Dr. Tepper noted that just prior to the date
     of the criminal incident, from September to December of 2011,
     Appellant was treated inpatient at various facilities and was seen
     at various emergency rooms for mental health issues.

           In addition to a review of the records, Dr. Tepper
     performed testing. He first performed intelligence, achievement
     and projective testing with Appellant. On the intelligence test,
     the Wechsler Abbreviated Scale of Intelligence, Dr. Tepper
     reported that Appellant received an IQ score of 75, which is
     between the mid-level of the borderline mental retardation range
     to the low level of average. Dr. Tepper also performed a reading
     subtest, the Wide Range Achievement Test, Fourth Edition, on
     which Appellant received a 34 percentile ranking. Dr. Tepper
     opined that together these scores reflect that Appellant
     “possesses somewhat limited or modest intellectual abilities. He
     is able to function on an everyday basis.” However, he further
     opined that Appellant’s higher level problem solving and decision
     making thought is inhibited.

           Dr. Tepper also performed clinical testing, including clinical
     interviewing, the record review and a Sentence Completion Test.
     On the day of testing, Dr. Tepper reported that Appellant was
     coherent and he was able to engage in a give-and-take dialogue.
     He had good reality testing. Dr. Tepper reported that through
     the years, Appellant had received a number of different
     diagnoses, “a somewhat severe category of either psychosis or
     schizophrenia.” Most recently, Appellant had been diagnosed
     with schizo-effective disorder, a cognitive and emotional


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     disorder. According to Dr. Tepper, this means that Appellant has
     difficulties with emotions, a lot of past depression, self-
     destructive or suicidal tendencies and problems with disordered
     and confused thinking.

            Defense counsel asked the doctor how Appellant’s
     intellectual disability and his mental illness affect his ability to
     think under stressful situations. Dr. Tepper opined that stress
     could combine to enhance his somewhat modest ability to think
     about things, problem solve, get along, make decision[s] and
     stay stable.

           The Commonwealth presented the testimony of Emma
     Jean Jefferson, the victim’s mother. Ms. Jefferson read her
     victim impact statement. In her statement, she told [the trial
     court] how her life and happiness, and that of the victim’s son
     had changed forever. She explained that her daughter was the
     center of her life, and without her daughter there is such a pain
     and hole in her heart.

                                     ***

           With the benefit of a PPI evaluation, a pre-sentence
     investigation and report, letters of support submitted on behalf
     of [Appellant] and the numerous victim impact letters, this Court
     imposed on the third degree murder conviction a term of 17 ½
     to 40 years, on the robbery conviction a term of 8 ½ to 20 years’
     imprisonment and on the unlawful restraint conviction, a term of
     1 to 5 years. [The theft conviction merged with robbery for
     sentencing purposes.]          The sentences were imposed
     consecutively, combining to make an aggregate sentence of 27
     to 65 years’ imprisonment.

Trial Court Opinion, 6/19/2014, at 1-4 (citations and footnotes omitted).

     A timely post-sentence motion was filed on December 18, 2013. That

motion asked for reconsideration of Appellant’s sentence because the trial

court failed to consider certain mitigating circumstances. Appellant also

requested that sentences for the third-degree murder conviction and the

robbery conviction run concurrently.    The motion was neither served by


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J-S74037-14


counsel on the trial court nor forwarded to the trial court by the Clerk of

Courts.   Thus, the motion subsequently was denied by operation of law

pursuant to Pa.R.Crim.P. 720(B)(3)(a), and an order was entered to this

effect on April 28, 2014.      A timely appeal followed on May 7, 2014.

Appellant’s counsel complied with the trial court’s order to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.

The trial court issued an opinion. On appeal, counsel has filed an Anders

brief and a petition for leave to withdraw as counsel.

      The following principles guide our review of this matter:

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court's attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate's brief on Appellant's behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate's brief.




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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

      Our Supreme Court has clarified portions of the Anders procedure:

      Accordingly, we hold 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.

Santiago, 978 A.2d at 361.

      Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

above requirements.2     Once “counsel has met these obligations, ‘it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether

the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 2015

PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015),

quoting, Santiago, 978 A.2d at 354 n. 5.3


2
 Appellant has not filed a pro se response raising any additional points for
our consideration.
3
  Speaking for myself only and not as the conduit of this Court’s decision,
see Commonwealth v. King, 57 A.3d 607, 633 n. 1 (Pa. 2012) (Saylor, J.,
concurring) (discussing the precedent for a special concurrence by the
author of the majority opinion), I acknowledge that the law of this
Commonwealth now provides that this Court, when confronted with an


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        Anders counsel presents this Court with one issue that may support

this appeal: “Did the trial court manifestly abuse its discretion when it

sentenced Appellant to an aggregate term of twenty-seven (27) to sixty-five

(65) years in prison following Appellant’s open guilty plea?” Appellant’s Brief

at 5.




Anders brief, must comb the record in search of issues of arguable merit
that were not raised by counsel. See Commonwealth v. Flowers, 2015
PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015)
(“[T]he reviewing court must make certain that appointed counsel has not
overlooked the existence of potentially non-frivolous issues.”). I write
separately to reiterate my disagreement with that opinion’s holding as to
this Court’s duty.

      We accept in all other criminal cases that counsel has put forth the
appropriate issues and arguments and, if not, that the PCRA is available to
the defendant for obtaining relief. See, e.g., Commonwealth v. Koehler,
914 A.2d 427, 438 (Pa. Super. 2006) (“[I]t is not this Court’s duty to
become an advocate for an appellant and comb through the record to assure
the absence of trial court error.”). In an Anders case, to “vindicate[] the
right to counsel” by “safeguard[ing] against a hastily-drawn or mistaken
conclusion of frivolity[,]” Santiago, 978 A.2d at 361, our Supreme Court
has added the additional protection of requiring the attorney to certify and
demonstrate his or her thorough review of the record and applicable law
before we will allow counsel to withdraw.

       Now, under Flowers, this Court not only can, but must, effectively act
as an advocate for a criminal defendant whose counsel seeks to withdraw.
Not only does this render meaningless counsel’s efforts under Santiago, but
it results in the unnecessary, unwarranted, and patently unfair disparate
treatment of criminal defendants by this Court. See id. at *5 (Strassburger,
J., dissenting) (quoting Commonwealth v. Washington, 29 A.3d 846 (Pa.
Super. 2011) (Colville, J., concurring, unpublished memorandum at 6)
(“[T]he purpose of Anders is to provide equal, not extra, representation to
indigent defendants, regardless of their counsel’s assessment of the merits
of their appeals.”).



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      This question set forth by counsel challenges the discretionary aspects

of Appellant’s sentence.4 Accordingly, we bear in mind the following.

      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. Two requirements must be
      met before we will review this challenge on its merits. First, an
      appellant must set forth in his brief a concise statement of the
      reasons relied upon for allowance of appeal with respect to the
      discretionary aspects of a sentence. Second, the appellant must
      show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. The
      determination of whether a particular issue raises a substantial
      question is to be evaluated on a case-by-case basis. In order to
      establish a substantial question, the appellant must show actions
      by the trial court inconsistent with the Sentencing Code or
      contrary to the fundamental norms underlying the sentencing
      process.

Commonwealth v. Bowen, 55 A.3d 1254, 1262-63 (Pa. Super. 2012),

appeal denied, 64 A.3d 630 (Pa. 2013) (quoting Commonwealth v.

McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)).

      Appellant’s brief contains a statement of the reasons upon which he

relies for allowance of appeal as to the discretionary aspects of his sentence.

Appellant’s Brief at 17-18. Therein, Appellant concedes that each sentence

imposed is within the standard range recommended by the sentencing

guidelines. However, he goes on to claim that the trial court “totally ignored

mitigating evidence” and claims that the imposition of consecutive sentences

all but guaranteed that Appellant would spend the rest of his life in jail,


4
  Because the plea agreement was open as to his sentence, Appellant is not
precluded from challenging the discretionary aspects of sentencing. See
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009).


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which raises his aggregate sentence to an excessive level. Id. We consider

these claims together.

            It is well-established that a sentencing court’s failure to
      consider mitigating factors raises a substantial question. See
      Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super.
      2003). However, a sentencing court generally has discretion to
      impose multiple sentences concurrently or consecutively, and a
      challenge to the exercise of that discretion does not ordinarily
      raise a substantial question. Commonwealth v. Pass, 914 A.2d
      442, 446–47 (Pa. Super. 2006); Commonwealth v. Hoag,
      [665 A.2d 1212, 1214 (Pa. Super. 1995)] (stating that an
      appellant is not entitled to a “volume discount” for his crimes by
      having his sentences run concurrently).

            We are mindful, however, that “the key to resolving the
      preliminary substantial question inquiry is whether the decision
      to sentence consecutively raises the aggregate sentence to, what
      appears upon its face to be, an excessive level in light of the
      criminal conduct at issue in the case.” Commonwealth v.
      Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). An
      appellant making an excessiveness claim raises a substantial
      question when he “sufficiently articulates the manner in which
      the sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.”
      [Commonwealth v. ]Mouzon, 812 A.2d [617, 627 (Pa. 2002)].
      Applying Mouzon, this Court has held that an excessive
      sentence claim—in conjunction with an assertion that the court
      failed to consider mitigating factors—raises a substantial
      question. Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.
      Super. 2005). Because we interpret [appellant’s] arguments as
      raising substantial questions under both Felmlee and
      Mastromarino, we grant [appellant’s] petition for allowance of
      appeal and consider the merits of his claim.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).

      Thus, because Appellant argues that the trial court erred in failing to

consider mitigating factors in conjunction with an excessiveness claim,

Appellant has raised a substantial question.


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      Instantly, Appellant choked, bound, and gagged the victim, who was

his girlfriend, and left her alone in a second-floor bedroom where she died.

Appellant then stole her television and car and fled.          At sentencing,

Appellant presented the testimony of Dr. Alan Tepper, a clinical psychologist.

Dr. Tepper testified that Appellant’s IQ fell in below the low-average range.

N.T., 12/16/2013 at 12. Dr. Tepper further testified that Appellant suffered

from schizo-affective disorder, which is characterized as having difficulty

with emotions, including past depression. Id. at 14.         According to Dr.

Tepper, Appellant’s mental disorder further compromised his already limited

problem solving ability. Id. at 15.

      Contrary to Appellant’s claim, the trial court did consider this

mitigating testimony when it stated its reasons on the record for the

sentence imposed.

            As we know, there is a long history of mental illness. First,
      diagnosed at age ten. [Medications] were tried. There [were]
      hospitalizations at various times.

            [Appellant] does have combined with his mental health
      problems some substance abuse issues. He has in the past used
      crack cocaine, marijuana and drinking of alcohol.

            What we have here is the extreme act of violence with
      multiple layers to it. When one considers the choking, the
      binding, the gagging, these things were just horrible for Lori
      Jefferson to have experience[d] individually, and much more
      magnified collectively. We then have the stealing of the Volvo
      after that, and the significant criminal history I already referred
      to, most significant being the prior robbery in Florida, which is
      an extreme act of violence in and of itself even when death is
      not cause[d].



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             Quite frankly, I do not find mitigation in this case, even
       though I have considered his mental status and the testimony of
       his witness today.

Trial Court Opinion, 6/19/2014, at 8 (citing N.T., 12/16/2013, at 38-39.

       We cannot say that imposing consecutive standard range sentences,

resulting in a sentence of 27 to 65 years’ incarceration, was manifestly

excessive or unduly harsh in light of this conduct. Moreover, the trial court

clearly considered the mitigating evidence and rejected it in this case. Thus,

we hold the trial court did not abuse its discretion and conclude that

Appellant’s issue challenging the discretionary aspects of sentencing is

frivolous.     Moreover, we have conducted a “a full examination of the

proceedings” and conclude that “the appeal is in fact wholly frivolous.”

Flowers, 2015 PA Super 69, 2015 WL 1612010 at *2.              Thus, we permit

counsel to withdraw.

       Judgment of sentence affirmed.         Petition for leave to withdraw as

counsel granted.

       P.J.E. Bender concurs in the result.

       Judge Donohue concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/25/2015




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