J-S12022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

YUSEF KEMP,

                            Appellant               No. 1768 EDA 2015


            Appeal from the Judgment of Sentence of April 29, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007549-2013


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 17, 2016

       Appellant, Yusef Kemp, appeals from the judgment of sentence

entered on April 29, 2015, as made final by the denial of Appellant’s post-

sentence motion on May 11, 2015. On this direct appeal, Appellant’s court-

appointed counsel has filed both a petition to withdraw as counsel and an

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

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 We conclude

that Appellant’s counsel has complied with the procedural requirements

necessary to affect withdrawal. Moreover, after independently reviewing the

record, we conclude that the instant appeal is wholly frivolous.        We,



____________________________________________


1
    See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).



*Retired Senior Judge assigned to the Superior Court.
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therefore, grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

      The trial court ably summarized the underlying facts and procedural

posture of this appeal. As the trial court explained:

        [Appellant] admitted to the following facts during the guilty
        plea [hearing]:

            On December 5[], 2012, at approximately 9:44 p.m.
            near 1901 North 27th Street in Philadelphia, which is the
            Johnson Homes Housing Project[,] the facts establish
            [that Appellant] shot and killed Renard Rushin Wright.

            At the time[,] Renard Wright was 20 years old.

            There was a call to 911 made that night by Neva Fairy[,]
            who lives in Unit H of the Johnson Homes Projects. At
            that time police officers responded. They found Mr.
            Rushin Wright in the home of Ms. Fairy. At that point
            officers took him to the hospital and upon his arrival at
            the hospital he was pronounced dead.

            Crime scene officers responded to the scene, recovered
            several .380 caliber fired cartridge casings in a
            breezeway near Unit H. They photographed the scene.

                                       ...

            Homicide detectives were assigned to investigate this
            case. On December 5[], 2012, a statement was taken
            from Ms. [Fairy]. . . . She [stated that] she knew the
            decedent[. Ms. Fairy stated that the decedent] came
            into her house, that he said he had been shot, that he
            believed he was going to die, and she said she also
            called 911. . . .

            In her statement of December 5, 2012, [Ms. Fairy said
            that] she asked the decedent who it was who shot him
            and he said he didn’t know.



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          Subsequently[,] . . . on February 11[], 2013, Ms. Fairy
          was re-interviewed by homicide detectives.      At that
          point[,] she said that her initial statement was correct
          and truthful except for the part that she says when she
          asked [the decedent] who it was that shot him that he
          responded “Yusef shot me” and that her daughter was
          present when this happened.

          Detective asked her why she was not forthcoming with
          this information in December and she said [] she knew
          she would have to testify and she was really scared.
          She also said, [] “I’m really scared[.] I have young kids
          and I live right here in these homes and everybody
          knows everyone else’s business and I know what these
          people are capable of.”

          . . . [Ms. Fairy] also knew [Appellant] for several years.

          Walter Ross was interviewed on December 7[], 2012.
          Walter Ross gave a statement in which he said that he
          was with [the decedent] that night, that he heard the
          shooting, but that he . . . was not present for the
          shooting. . . .

          Walter Ross was re-interviewed on February 15[,] 2013,
          and . . . he acknowledged to detectives that his prior
          statement from December was not entirely truthful,
          especially with regards to his presence [during] the
          shooting of [the decedent. In his February statement,
          Walter Ross told detectives:] “When I come out of
          Neva[’s] house, that’s when I run into Renard. He was
          walking up to Neva’s door. He yelled over to me, I
          turned around and we start talking and shit and I was
          telling boy where I was going. I was telling him I’m
          going back to Nadira’s house. As I’m talking to him, I
          see Yusef come up behind Renard and he puts this gun
          up and he points it right at us and he starts shooting.”

          Mr. Ross was asked why he was not entirely honest in
          his December statement. He told the detectives, []
          “Because I’ve been scared to telling anyone because
          people run their mouth. I heard right away that people
          knew who killed Renard, so that was another reason
          why I didn’t say anything. I knew they knew who did it,

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          so I knew if I said something that it would come back on
          me.”

          Mr. Ross also knew [Appellant] for several years by face
          and name from the Johnson Homes Projects.

          A witness was interviewed on February 28th by the name
          of Shika Gibson. She gave a statement . . . and in
          summary it says that she saw [Appellant] shoot [the
          decedent] at the location that we have described.

          A witness named Donna Hunter was interviewed on
          December 19[], 2012. Ms. Hunter told Philadelphia
          homicide detectives that she lives in Unit K of the
          Johnson Homes Projects, that she saw [Appellant] who
          she knows run past her apartment carrying a gun after
          she had heard shots. Ms. Hunter refused to sign her
          statement. . . .

          Jalil Harris was also interviewed and he [said] that
          Donna Hunter told him the same thing that she told the
          police, that she saw [Appellant] run by her house
          carrying a gun.

          The remains of [the decedent] were taken to the Medical
          Examiner’s Office where an autopsy was conducted. . . .
          [The Medical Examiner] found . . . a perforating gunshot
          wound to the front of [the decedent’s] abdomen and a
          penetrating gunshot wound to the rear of [the
          decedent’s] abdomen. A [] .380 bullet was recovered
          from the body of [the decedent]. . . .

          These gunshot wounds lacerated [the decedent’s] liver
          and caused other injuries, including injuries to his
          kidneys, and it would be the opinion of [the Medical
          Examiner] that the cause of death was a gunshot wound
          to the abdomen and the manner of death was homicide.

                                    ...

          [Appellant] was ineligible to possess a firearm at the
          time of this incident.

                                  ...

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J-S12022-16



         On March 9, 2014, [Appellant] was arrested and charged
         with murder, firearms not to be carried without a license,
         possession of [a firearm by a prohibited person], carrying
         firearms in a public place in Philadelphia, and possession of
         an instrument of crime (“PIC”).[2]

         On February 9, 2015, [Appellant] appeared before th[e
         trial] court and entered [] an open guilty plea to the
         charges of third-degree murder, firearms not to be carried
         without a license, possession of [a firearm by a prohibited
         person], and PIC. . . .[fn.1]

              [fn.1] The charge of carrying firearms in a public place
              in Philadelphia was nolle prossed.

         On April 20, 2015, [the trial] court sentenced [Appellant] to
         [serve 20 to 45 years in prison for his third-degree murder
         conviction and to serve a consecutive, aggregate term of
         two-and-a-half to five years in prison for his remaining
         convictions]. . . .

         After [the trial court] realized it had imposed an illegal
         maximum      sentence     on   the    third-degree   murder
         [conviction], th[e trial] court immediately informed both
         defense counsel and the Commonwealth. On April 29,
         2015, [Appellant] filed a Motion to Vacate Illegal Sentence
         and Impose a Legal Sentence. That same day, th[e trial]
         court granted [Appellant’s] motion and re-sentenced him to
         [serve 20 to 40 years in prison for the third-degree murder
         conviction and to serve a consecutive, aggregate sentence
         of two-and-a-half to ten years in prison for the remaining
         convictions. As Appellant acknowledges in his brief to the
         Pennsylvania Superior Court, all of Appellant’s sentences
         either fell within the “standard” or the “mitigated”
         sentencing ranges. Appellant’s Brief at 14].


____________________________________________


2
  18 Pa.C.S.A. §§ 2502, 6106(a)(1), 6105(a)(1), 6108(1), and 907(a),
respectively.




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         On May 8, 2015, [Appellant] filed a timely post-sentence
         motion, requesting that [the trial court] reconsider his
         sentence. [Specifically, Appellant claimed that the trial
         court “erred in sentencing [Appellant] by failing to
         adequately consider the argument of the defense for a
         less[er] sentence.”      Appellant’s Post-Sentence Motion,
         5/8/15, at 2. The trial court] denied the [post-sentence]
         motion on May 11, 2015. On June 9, 2015, [Appellant] filed
         a notice of appeal to [the] Superior Court. . . .

Trial Court Opinion, 7/30/15, at 1-5 (some internal capitalization and

corrections omitted), quoting in part N.T. Guilty Plea Hearing, 2/9/15, at 22-

32.

       On appeal, Appellant’s court-appointed counsel filed a petition for

leave to withdraw and accompanied this petition with an Anders brief.

Within the Anders brief, Appellant raises the following claim:3

         Did the [trial] court commit an abuse of discretion [at
         sentencing] by not considering Appellant’s arguments for a
         lesser sentence and imposing an excessive sentence?

Appellant’s Brief at 11.

       Before reviewing the merits of this appeal, this Court must first

determine whether counsel fulfilled the necessary procedural requirements

for withdrawing as counsel.          Commonwealth v. Miller, 715 A.2d 1203,

1207 (Pa. Super. 1998).
____________________________________________


3
  The trial court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). In accordance with Pa.R.A.P. 1925(c)(4), Appellant’s
court-appointed counsel filed a “statement of intent to file an
Anders/McClendon brief in lieu of filing a [Pa.R.A.P. 1925(b) s]tatement.”
Pa.R.A.P. 1925(c)(4).



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     To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.   First, counsel must “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.”

Miller, 715 A.2d at 1207.     Second, counsel must file an Anders brief, in

which counsel:

        (1) provide[s] a summary of the procedural history and
        facts, with citations to the record; (2) refer[s] to anything in
        the record that counsel believes arguably supports the
        appeal; (3) set[s] forth counsel’s conclusion that the appeal
        is frivolous; and (4) state[s] 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.

     Finally, counsel must furnish a copy of the Anders brief to his client

and advise the client “of [the client’s] right to retain new counsel, proceed

pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

     If counsel meets all of the above 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.” Santiago, 978 A.2d at 355 n.5, quoting

McClendon, 434 A.2d at 1187.        It is only when both the procedural and




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substantive requirements are satisfied that counsel will be permitted to

withdraw.

      In the case at bar, counsel met all of the above procedural obligations.

We must, therefore, review the record and analyze whether this appeal is, in

fact, wholly frivolous.   Our analysis begins with the issue raised in the

Anders brief.

      Appellant claims that the trial court abused its discretion at sentencing

by failing to consider his mitigating evidence. Appellant’s Brief at 12. We

cannot review Appellant’s claim.

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

“[S]entencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.          See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court explained:

        [t]o 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. 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

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

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

      In the case at bar, Appellant satisfied the first three requirements, as

he filed a timely notice of appeal, properly preserved his discretionary

challenge in a post-sentence motion, and facially complied with Pennsylvania

Rule of Appellate Procedure 2119(f).       We must now determine whether

Appellant presented a “substantial question that the sentence appealed from

is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.

      Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were:     (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental     norms     which     underlie    the   sentencing     process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining

whether an appellant has raised a substantial question, we must limit our

review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.

This limitation ensures that our inquiry remains “focus[ed] on the reasons

for which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.”      Id. at 727

(internal emphasis omitted).




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      In his brief to this Court, Appellant acknowledges that all of his

sentences fall either within the “standard” or the “mitigated” sentencing

ranges.   Appellant’s Brief at 14.   Yet, as Appellant claims, his aggregate

sentence of 22 ½ to 50 years in prison was manifestly excessive because the

trial court “did not consider” such mitigating evidence as:     the “numerous

letters . . . that described [A]ppellant as a good person who was loved and

respected by his family and neighbors;” the information Appellant provided

detectives regarding an unrelated homicide; and, Appellant’s decision to

plead guilty. Id. at 12.

      Appellant’s claim does not raise a substantial question under the

Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.

Super. 2003) (“an allegation that the sentencing court did not consider

certain mitigating factors does not raise a substantial question”); see

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n

allegation that the sentencing court ‘failed to consider’ or ‘did not adequately

consider’ various factors does not raise a substantial question that the

sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also

Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a

claim that the trial court “erred by imposing an aggravated range sentence

without consideration of mitigating circumstances raises a substantial

question”) (emphasis added).     Therefore, we may not reach the merits of

Appellant’s claim.


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      We have independently considered the issue raised within Appellant’s

brief and have determined that it is frivolous.      In addition, after an

independent review of the entire record, we see nothing that might arguably

support this appeal. The appeal is therefore wholly frivolous. Accordingly,

we affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw appearance.

      Petition to withdraw appearance granted.      Judgment of sentence

affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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