J-S59009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

PAUL D. HOLLOWAY,

                            Appellant                      No. 3727 EDA 2015


          Appeal from the Judgment of Sentence Entered July 7, 2015
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0003048-2013
                           CP-51-CR-0003050-2013
                           CP-51-CR-0003052-2013


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED OCTOBER 26, 2016

        Appellant, Paul D. Holloway, appeals from the judgment of sentence of

an aggregate term of 8 to 20 years’ incarceration, imposed after he pled

guilty to three counts of aggravated assault, as well as other offenses. On

appeal, Appellant seeks to raise various attacks on the validity of his plea

and     sentence.      However,     his   counsel,   the   Defender   Association   of

Philadelphia (DAF),1 has filed a petition to withdraw and Anders2 brief,


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  While we usually refer to counsel by name, the record indicates that
various attorneys from DAF have filed documents on Appellant’s behalf
throughout the course of this case before the trial court, and three different
(Footnote Continued Next Page)
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concluding that Appellant’s issues are frivolous and there are no other non-

frivolous claims that could be asserted on appeal. After careful review, we

affirm Appellant’s judgment of sentence and grant DAF’s petition to

withdraw.

        The trial court summarized the facts of this case, as follows:

              On December 30, 2012, at approximately 3 a.m.,
        Philadelphia Police responded to the Gold Coast Lounge at 4043
        Lancaster Avenue, in the city and county of Philadelphia, for a
        report of a shooting. Upon arrival, the officers found three men,
        Shaquille Jones, Aaron Douglas, and Robert Edwards, suffering
        from gunshot wounds to the legs. The scene was located both
        inside and outside the bar, as a blood trail was coming from the
        rear door of the lounge. The officers recovered six (6) .40
        caliber [spent shell casings] on the floor of the main bar area.
        Mr. Jones suffered from a broken bone in his leg as a result of
        the shooting, which required him to have several surgeries.

               A search warrant was issued and executed to recover the
        surveillance video from the Gold Coast Lounge. Upon recovery
        and viewing, the video showed two males with guns in their
        hands. One of the males was [Appellant] …, and the other co-
        [d]efendant Darryl Seals. The video showed Seals walking up to
        a group of people on the first floor, and immediately begin
        shooting at the group. [Appellant] dropped his gun, never firing
        a shot. Seals and [Appellant] proceeded to then exit through
        the rear door of the bar. The video was released to the media
        on January 2, 2013, and as a result, [Appellant] was identified
        as being one of the two men in the video. Mr. Seals was later
        identified on January 3, 2013, as the other male in the video.
        Both Mr. Seals and [Appellant] were later arrested.

Trial Court Opinion, 3/2/16, at 1-2.
                       _______________________
(Footnote Continued)

DAF attorneys are listed as counsel for Appellant on appeal. Therefore, we
will refer to Appellant’s counsel as DAF herein.
2
    Anders v. California, 386 U.S. 738 (1967).



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      Appellant was charged in three separate cases (each involving one

victim) with various offenses including attempted murder, aggravated

assault, criminal conspiracy, and firearm offenses.         On July 7, 2015, he

entered negotiated guilty pleas in each of those cases to the following

offenses: three counts of aggravated assault, 18 Pa.C.S. § 2702(a); one

count of conspiracy to commit aggravated assault, 18 Pa.C.S. § 903(c); and

one count of possession of a firearm by a person prohibited, 18 Pa.C.S. §

6105(a)(1). Pursuant to the plea agreement, the court sentenced Appellant

that same day to an aggregate term of 8 to 20 years’ incarceration.

      Appellant filed a timely post-sentence motion for reconsideration of his

sentence, which was denied by operation of law on November 16, 2015.

Appellant then filed a timely notice of appeal. The trial court ordered him to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. In response, DAF filed a timely Pa.R.A.P. 1925(c)(4) statement of

its intent to file an Anders brief in lieu of a concise statement. On April 13,

2016, DAF filed with this Court a petition to withdraw.        DAF also filed an

Anders brief, explaining why the six claims that Appellant wishes to assert

on appeal are frivolous, and concluding that there are no other non-frivolous

issues that it could raise herein.

      Before reviewing Appellant’s six issues, we must first assess the

adequacy    of   DAF’s   petition    to   withdraw   and   Anders   brief.   See

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

banc). This Court has explained:

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      Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in [Commonwealth v.]
      Santiago[, 978 A.2d 349 (Pa. 2009)]. The 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.

      Santiago, 978 A.2d at 361. Counsel also must provide a copy of
      the Anders brief to his client. Attending the brief must be a
      letter that advises the client of his right to: “(1) retain new
      counsel to pursue the appeal; (2) proceed pro se on appeal; or
      (3) raise any points that the appellant deems worthy of the
      court[']s attention in addition to the points raised by counsel in
      the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
      353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”     Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In this case, DAF’s Anders brief complies with the above-stated

requirements. Specifically, DAF includes a summary of the relevant factual

and procedural history, it refers to portions of the record that could arguably


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support Appellant’s claims, and it sets forth its conclusion that Appellant’s

appeal is frivolous.        DAF also explains its reasons for reaching that

determination, and supports its rationale with citations to the record and

pertinent legal authority. DAF states in its petition to withdraw that it has

supplied Appellant with a copy of its Anders brief, and it attaches a letter

directed to Appellant in which DAF informs him of the rights enumerated in

Nischan.      Accordingly, DAF has complied with the technical requirements

for withdrawal. We will now independently review the record to determine if

Appellant’s issues are frivolous, and to ascertain if there are any other non-

frivolous issues he could pursue on appeal.

        Appellant first seeks to challenge the validity of his guilty plea.   In

particular, he contends that the court’s oral plea colloquy did not cover each

of the six areas of inquiry required by Pa.R.Crim.P. 590.3        For instance,


____________________________________________


3
    The pertinent areas of inquiry are as follows:

        (1) Does the defendant understand the nature of the charges to
        which he or she is pleading guilty or nolo contendere?

        (2) Is there a factual basis for the plea?

        (3) Does the defendant understand that he or she has the right
        to trial by jury?

        (4) Does the defendant understand that he or she is presumed
        innocent until found guilty?

        (5) Is the defendant aware of the permissible range of sentences
        and/or fines for the offenses charged?
(Footnote Continued Next Page)


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Appellant stresses that the factual recitation failed to specifically state what

prior conviction disqualified him from possessing a firearm for purposes of

his section 6105 offense. Relatedly, Appellant also desires to argue that he

was incompetent to enter his plea.

      We agree with DAF that Appellant’s arguments challenging the validity

of his plea are frivolous. It is well established that “issues not preserved in

the trial court may not be pursued before this Court.” Commonwealth v.

Rush, 959 A.2d 945, 948-49 (Pa. Super. 2008) (citing Pa.R.A.P. 302(a)).

“For example, a request to withdraw a guilty plea on the grounds that it was

involuntary is one of the claims that must be raised by motion in the trial

court in order to be reviewed on direct appeal.”           Id. at 949 (citing

Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006)).

Here, Appellant essentially avers that his plea was not voluntary because the

colloquy was inadequate, and because he was incompetent.              However,

Appellant did not file a motion to withdraw his plea, nor at any point

challenge, before the trial court, the adequacy of the court’s colloquy or his

competency to enter the plea agreement. Therefore, he has waived these


                       _______________________
(Footnote Continued)

      (6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

Comment to Pa.R.Crim.P. 590.




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claims on appeal. Id.; see also Commonwealth v. Lincoln, 72 A.3d 606,

609-610 (Pa. Super. 2013) (“A defendant wishing to challenge the

voluntariness of a guilty plea on direct appeal must either object during the

plea colloquy or file a motion to withdraw the plea within ten days of

sentencing. Failure to employ either measure results in waiver.”) (citations

omitted).

      Likewise, Appellant has also waived his assertion that the trial court

erred by accepting his waiver of his right to be present at the preliminary

hearing, as the court failed to colloquy Appellant about the implications of

that decision. DAF concludes that Appellant waived this claim because “no

objection was made to the absence of a waiver colloquy as to [Appellant’s]

right to be present at the preliminary hearing.” Anders Brief at 17 (citing

Pa.R.A.P. 302(a)).     Additionally, DAF reasons that because Appellant

ultimately pled guilty, he “waive[d] the right to challenge on direct appeal all

non[-]jurisdictional defects except the legality of sentence and the validity of

the plea.” Id. (citing Lincoln, 72 A.3d at 609 (citation omitted)). For both

of these reasons, DAF concludes that Appellant’s issue involving his absence

from the preliminary hearing is waived. We agree.

      Appellant next seeks to challenge the legality of his sentence,

seemingly on the basis that his individual terms of incarceration exceed the

statutory maximums.     DAF notes that Appellant’s aggravated assault and

conspiracy convictions were graded as first-degree felonies, thus exposing

him to statutory maximum terms of 20 years’ imprisonment for each count

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of those crimes.   See 18 Pa.C.S. § 1103.      Because Appellant received a

sentence of 8 to 20 years for each of his aggravated assault and conspiracy

offenses, those sentences are legal. Likewise, Appellant’s sentence of 5 to

10 years’ incarceration for possession of a firearm by a person prohibited is

also within the statutory maximum term. Appellant’s prior conviction, that

precludes him from possessing a firearm, is possession with intent to deliver

a controlled substance. See N.T. Guilty Plea, 7/7/15, at 12. Thus, under 18

Pa.C.S. § 6105(a.1)(1), Appellant’s firearm offense is graded as a felony of

the second-degree, which carries a statutory maximum term of 10 years’

incarceration. See 18 Pa.C.S. § 1103(2). Therefore, his sentence of 5 to 10

years’ incarceration for his section 6105 offense is legal.   Accordingly, we

agree with DAF that Appellant’s challenge to the legality of his sentence is

frivolous.

      Next, Appellant seeks to argue that his sentence should be vacated

because he was denied his right to allocution during the July 7, 2015

sentencing hearing.    DAF concedes that “the lower court clearly did not

afford [Appellant] his right to allocute….”   Anders Brief at 21.    However,

DAF concludes that challenging this error would be frivolous because “no

objection to this omission was lodged.” Id. Consequently, DAF concludes

that Appellant has waived this claim for our review.

      Again, we agree with DAF. In Commonwealth v. Jacobs, 900 A.2d

368, 376 (Pa. Super. 2006) (en banc), this Court held “that a denial of the

right of allocution does not create a non-waivable challenge to the legality of

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the sentence.”   Id.   Thus, “like most legal errors,” the failure to afford a

defendant his right to allocution “is … waivable under Pennsylvania law.” Id.

(footnote omitted). The record here confirms that Appellant did not object

at the sentencing hearing, nor in his post-sentence motion, to the court’s

failure to afford him his right to allocution. Therefore, we conclude that this

argument is waived.

      Finally, Appellant wishes to assert that the court erred by denying his

post-sentence motion for reconsideration of his sentence.     In that motion,

Appellant baldly stated: “The sentence imposed … was excessive in that it

far surpassed [w]hat was required to protect the public, the complainant or

the community, and was well beyond what was necessary to foster

[Appellant’s] rehabilitation.” Post-Sentence Motion, 7/16/15, at 2. Clearly,

Appellant was attempting to challenge the substance of his negotiated

sentence. This Court has precluded such attempts, holding that “upon entry

of a negotiated guilty plea, motions to modify [sentence] can only present

technical issues such as defects in the record, an error of the clerk of court,

etc., rather than challenge the substance of the negotiated sentence.”

Commonwealth v. Ortiz, 854 A.2d 1280, 1284 (Pa. Super. 2004)

(emphasis in original) (discussing Commonwealth v. Coles, 530 A.2d 453

(Pa. Super. 1987)).    Under the rationale of Ortiz and Coles, Appellant’s

argument that the court erred by denying his motion to modify his

negotiated sentence is frivolous.




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     In sum, we agree with DAF that all of the issues Appellant seeks to

raise on appeal are frivolous. Our independent review of the record reveals

no other non-frivolous claims he could assert herein. Accordingly, we affirm

his judgment of sentence and grant DAF’s petition to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2016




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