J-S41004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

EDWARD M. STREET,

                            Appellant               No. 2174 MDA 2014


      Appeal from the Judgment of Sentence entered November 7, 2014,
              in the Court of Common Pleas of Lancaster County,
             Criminal Division, at No(s): CP-36-CR-0005848-2013
                         and CP-36-CR-0000277-2014


BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                              FILED JUNE 26, 2015

        Edward M. Street (“Appellant”) appeals from the judgment of sentence

imposed following his convictions for robbery, aggravated assault, and

burglary at Docket No. 5848 of 2013, and one count of burglary at Docket

No. 277 of 2014.1 Appellant’s counsel has filed an Anders2 brief, together

with a petition to withdraw as counsel. We affirm the judgment of sentence

and grant counsel’s petition to withdraw.


____________________________________________


1
    18 Pa.C.S.A § 3701(a)(1)(i), 2701(a)(1), 3502(a)(1) and 3502(a)(2).
2
    Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).

*Retired Senior Judge assigned to the Superior Court.
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      The pertinent facts are as follows:    On November 5, 2013, officers

from the Lancaster City Bureau of Police were dispatched to 41 E. Filbert

Street following a report of an assault at that location. Affidavit of Probable

Cause, 11/7/13; N.T., 8/14/14 at 6-7. Upon arriving at the scene, Officer

Reppert located two victims, Sandra Geibe and Robert Rineer, both of whom

had sustained injuries to the head and were bleeding.         Id.   Ms. Geibe

informed the officers that Appellant, a son of one of her friends, had knocked

on her door, forced his way into the house, struck her multiple times in the

head with a piece of concrete, demanded money and her credit card, and

took $1.50 from her purse. Id. Mr. Rineer, who was 91 years old at the

time, also related to the police that the perpetrator, whom he knew as

“Monroe”, had entered the house, demanded money from him, and struck

Mr. Rineer in the head, causing him to lose consciousness. Id. The victims

were transported to Lancaster General Hospital for treatment, and both

required head staples for their injuries. Id. Also, the officers recovered a

bloodied brick from the scene. Id. Ms. Geibe later identified Appellant as

her assailant from a photographic lineup.        Appellant was subsequently

arrested and charged with burglary, aggravated assault, and robbery at

Docket No 5848 of 2013.

      Additionally, at Docket No 277 of 2014, Appellant was charged with

another burglary that occurred on November 6, 2013, when Appellant

entered the residence of Albert Honsher and Robert Wilson and took several

items from their residence without permission. N.T., 8/14/14, at 8.

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         On August 14, 2014, Appellant entered guilty pleas at both docket

numbers.      On November 7, 2014, the trial court sentenced him at Docket

5848 of 2013 to 8 to 20 years of imprisonment for robbery, a consecutive 7

to 20 years for aggravated assault, and a consecutive 5 to 20 years of

burglary, for an aggregate term of imprisonment of 20 to 60 years.          At

Docket No. 277 of 2014, the trial court sentenced Appellant to a concurrent

3 to 20 years of imprisonment for burglary. No post-sentence motions were

filed.   However, on November 19, 2014, Appellant filed a “Request to File

Post Sentence Motion Nunc Pro Tunc and Motion to Modify Sentence.” That

same day, the trial court entered orders granting Appellant’s request to file a

post-sentence motion nunc pro tunc, but denying his post-sentence motion

for modification of his sentence.

         On December 19, 2014, Appellant’s counsel filed a notice of appeal.

By order dated December 29, 2014, the trial court directed Appellant’s

counsel to file a concise statement of errors complained of on appeal. On

January 16, 2014, Appellant’s counsel filed a statement of intent to file an

Anders/McClendon Brief in lieu of a statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(c).

         Appellant raises the following issues for our review, which we have

paraphrased for clarity:

   I.      Whether the trial court abused its discretion when          it
           sentenced Appellant to 20 to 60 years of imprisonment?

   II.     Whether Appellant’s guilty plea was illegal because it was not
           entered knowingly, voluntarily, and intelligently?

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  III.   Whether the sentencing decision of Judge Madenspacher of
         the Lancaster County Court of Common Pleas was tainted by
         the fact that his five year term as President Judge was about
         to expire?

Anders Brief at 8-12.

     Preliminarily, we note that Appellant’s counsel has filed a brief

pursuant to Anders and its Pennsylvania counterpart, McClendon.           See

Anders, 386 U.S. 738; McClendon, 434 A.2d at 1187.                  Where an

Anders/McClendon brief has been presented, our standard of review

requires counsel seeking permission to withdraw pursuant to Anders to:

(1) petition the court for leave to withdraw stating that after making a

conscientious examination of the record it has been determined that the

appeal would be frivolous; (2) file a brief referring to anything that might

arguably support the appeal, but which does not resemble a “no merit” letter

or amicus curiae brief; and (3) furnish a copy of the brief to the defendant

and advise him of his right to retain new counsel or raise any additional

points that he deems worthy of the court's attention.      Commonwealth v.

McBride, 957 A.2d 752, 756 (Pa. Super. 2008).          Counsel is required to

submit to this Court “a copy of any letter used by counsel to advise the

appellant   of   the    rights   associated   with   the   Anders    process.”

Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007).

Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),

appellant’s counsel must state in the Anders brief the reasons for

concluding that the appeal is frivolous. If these requirements are met, this


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Court may then review the record to determine whether we agree with

counsel’s assessment that the appeal is frivolous.

       In the instant case, by letter dated April 27, 2015, Appellant’s counsel

notified Appellant of her intent to file an Anders brief and petition to

withdraw with this Court, and informed Appellant of his rights to retain new

counsel and raise additional issues. That same day, Appellant’s counsel filed

an appropriate petition seeking leave to withdraw.         Finally, Appellant’s

counsel has submitted an Anders brief to this Court, with a copy provided to

Appellant.   Accordingly, the technical requirements of Anders have been

met.   We will therefore conduct our own independent examination of the

issues set forth in counsel’s brief to determine if they are frivolous and

whether counsel should be permitted to withdraw.

       In his first issue, Appellant argues that the trial court abused its

discretion when it sentenced him to an aggregate term of imprisonment of

20 to 60 years.        This Court has explained that “[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. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citations omitted).

       To reach the merits of a discretionary sentencing issue, we
       conduct a four-part analysis to determine:           (1) whether
       appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
       (2) whether the issue was properly preserved at sentencing or in
       a motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
       (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

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      sentence appealed from is not appropriate under the Sentencing
      Code, 42 [Pa.C.S.A.] § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal.   Although Appellant failed to include in his brief a

concise statement pursuant to Pa.R.A.P. 2119(f), the Commonwealth has

not objected.       Therefore, we decline to find waiver, and proceed to

determine whether Appellant has raised a substantial question for our

review.    See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super.

2004) (explaining that when the appellant has not included a Rule 2119(f)

statement and the appellee has not objected, this Court may decline to find

waiver).

      To the extent Appellant argues that the trial court imposed a sentence

that was manifestly excessive and unreasonable without appropriately

considering the relevant sentencing factors, such a claim raises a substantial

question for our review.    See Commonwealth v. Buterbaugh, 91 A.3d

1247, 1266 (Pa. Super. 2014) quoting Commonwealth v. Dodge, 77 A.3d

1263, 1272, n.8 (Pa. Super. 2013) (“[A]rguments that the sentencing court

failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question, whereas a statement that the court failed to consider

facts of record, though necessarily encompassing the factors of § 9721, has

been rejected.”).

      Our standard of review of such a discretionary challenge is as follows:



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            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. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will.

            More specifically, 42 Pa.C.S.A. § 9721(b) offers the
      following guidance to the trial court's sentencing determination:

            [T]he sentence imposed should call for confinement
            that is consistent with 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.A. § 9721(b).

             Furthermore, Section 9781(c) specifically defines three
      instances in which the appellate courts should vacate a sentence
      and remand: (1) the sentencing court applied the guidelines
      erroneously; (2) the sentence falls within the guidelines, but is
      “clearly unreasonable” based on the circumstances of the case;
      and (3) the sentence falls outside of the guidelines and is
      “unreasonable.” 42 Pa.C.S. § 9781(c). Under 42 Pa.C.S. §
      9781(d), the appellate courts must review the record and
      consider the nature and circumstances of the offense, the
      sentencing court's observations of the defendant, the findings
      that formed the basis of the sentence, and the sentencing
      guidelines. The ... weighing of factors under 42 Pa.C.S. §
      9721(b) [is] exclusively for the sentencing court, and an
      appellate court could not substitute its own weighing of those
      factors. The primary consideration, therefore, is whether the
      court imposed an individualized sentence, and whether the
      sentence was nonetheless unreasonable for sentences falling
      outside the guidelines, or clearly unreasonable for sentences
      falling within the guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-876 (Pa. Super. 2012)

(citations omitted).



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      Here, at the sentencing hearing, the trial court, which had the benefit

of a pre-sentence investigation and a psychological evaluation, heard from

the victim, Ms. Geibe, who explained how the crime had affected her. N.T.,

11/7/14, at 3-4.        Additionally, the trial court heard from Appellant’s

stepfather and sister, who testified to Appellant’s high intellect and artistic

abilities, and the detrimental effects of his difficult childhood.   Id. at 5-6.

The trial court then heard from Appellant’s counsel and counsel for the

Commonwealth, as well as from Appellant, who expressed remorse for his

actions. Id. at 7-12.

      Thereafter, the trial court expressed its rationale for Appellant’s

sentence:

            [Appellant], I would like to focus entirely on you and
      getting you help. But ... I have to think about the community
      and the people that are out there.

            You’ve had a horrible childhood, there’s no question about
      that. You have [an] incredible criminal record, similar types of
      crimes like in this particular case.

             And it really does appear strange for someone who is as
      intelligent and gifted as you are.      It doesn’t make sense
      whatsoever for someone like you to be in front of me and in
      court.

           But I have to look at the past here ... The only thing I
      have to even get any idea of what the future is going to be is
      what you have done in the past.

           And it has not been pretty ... . [Y]ou’re 32 years old and
      you really have a history of drug use, crime, not really holding
      down jobs, drifting around, a lot of time in prison.




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            You know, to be quite frank, I’m not sure that this can
      ever be changed. At your age, I’m just not sure that this can
      ever be changed.

            And we get to the one crime in here where the victims
      were 56 and 91-years-old. And that is particularly troubling,
      because in my opinion, the force that you used in that case far
      exceeded what was necessary to commit the crime; in other
      words, if you wanted to go into that house to rob and steal, you
      did not need to do that.

             Your sentencing guidelines are horrendous in this
      particular case. I hope that you get the help that you need and I
      hope at some point in life you can get out and be a productive
      citizen.

            For now, my focus is on the community here, [Appellant].
      I care about you, but I care about innocent people being hurt by
      you.



N.T., 11/7/14, at 14.

      Upon review, we discern no abuse of discretion. The trial court, after

considering the pre-sentence investigation report and the guidelines,

appropriately took into account the requisite sentencing factors, including

the severity and impact of the crime on the victims and the public,

Appellant’s age, character, criminal history, and rehabilitative needs.    We

conclude that the record supports the trial court’s reasoning and that its

sentencing decision comports with the applicable law.         The trial court

appropriately considered all of the evidence presented at the sentencing

hearing to impose an individualized sentence that neither exceeded the

guidelines, nor fell outside of the statutory limits, and which was clearly not

unreasonable. Id. Appellant’s discretionary claim fails.


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      Appellant also argues that his guilty plea was invalid. Anders Brief at

10-12.   Specifically, Appellant asserts that his counsel coerced him into

pleading guilty, and that he was not informed by his counsel as to whether

the Commonwealth had offered him a plea agreement. Id. Appellant thus

maintains that his plea was not tendered knowingly, intelligently and

voluntarily, and that he should have been permitted to withdraw his plea.

      Before we address the merits of this claim, we must determine

whether Appellant has preserved it for appellate review. “Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). Moreover, “[a] party cannot rectify the failure to

preserve an issue by proffering it in response to a Rule 1925(b) order.”

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). Where

the appellant fails to preserve his challenge to the validity of the guilty plea

by objecting at the sentencing colloquy or otherwise raising the issue at the

sentencing hearing or through a post-sentence motion, the claim is waived.

Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002).

      Here, Appellant failed to file a post-sentence motion seeking to

withdraw his guilty plea, and did not otherwise seek to withdraw his plea

either at the sentencing hearing or at the hearing on his post-sentence

motion. Rather, for the first time on appeal, Appellant argues that his guilty

plea was invalid.     Because Appellant has not properly preserved this

challenge to the validity of his plea, it is waived. Moreover, to the extent

that Appellant claims that trial counsel was ineffective for failing to ensure

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that the plea was entered knowingly, intelligently, and voluntarily, and by

failing to inform him of any plea agreement offered by the Commonwealth,

our Supreme Court has made clear that a claim of ineffectiveness will not be

heard on direct appeal absent certain circumstances not present in the case

at bar.   See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).

This claim also fails.

      In his final issue, Appellant argues that Lancaster County Court of

Common Pleas Judge Madenspacher engaged in judicial misconduct at the

time of sentencing. Anders Brief at 12. Specifically, Appellant asserts that

Judge Madenspacher’s sentencing determination was somehow influenced by

the fact that Judge Madenspacher had been “demoted”, and his five-year

term as President Judge was going to end two months after Appellant’s

sentencing date. Id.

      It is well settled that “during our review of a case, we rely only on

facts and documents in the certified record [and this] Court does not rely on

items dehors the record, such as assertions in an appellate brief or a trial

court opinion.” Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super.

2008) (citations omitted).     Because the terms of Judge Madenspacher’s

service as President Judge are not a matter of record in this case, and the

record is devoid of any evidence of judicial misconduct, we cannot consider

Appellant’s   allegation   based   on    his     general,   unsupported      assertions.

Moreover, as explained above, the record reflects that the trial court

appropriately   considered   the   relevant       statutory   factors   in   fashioning

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Appellant’s sentence, and there is nothing to support Appellant’s contention

that the trial court was motivated by any considerations other than the

relevant sentencing factors.

      Upon careful review, we conclude that Appellant’s issues are frivolous.

We have conducted an independent review of the record and have found no

additional, non-frivolous issues that counsel could have raised on Appellant’s

behalf. Accordingly, we affirm the judgment of sentence and grant counsel’s

motion to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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