J-S52007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SEAN NOTMAN,

                        Appellant                   No. 1449 WDA 2014


          Appeal from the Judgment of Sentence August 6, 2014
            In the Court of Common Pleas of Allegheny County
 Criminal Division at No(s): CP-02-CR-0003858-2012, CP-02-CR-0015788-
                                   2012


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 22, 2015

     Appellant, Sean Notman, appeals from the judgment of sentence

entered on August 6, 2014, in the Court of Common Pleas of Allegheny

County.   Appellant’s counsel has filed a motion seeking to withdraw his

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

govern a withdrawal from representation on direct appeal. Appellant has not

filed a response to counsel’s motion.       After careful review, we grant

counsel’s motion to withdraw and affirm Appellant’s judgment of sentence.

     The trial court summarized the factual history of this case as follows:

           On February 26, 2012, the Mt. Oliver Police and the
     Allegheny County Police were called to investigate a reported
     shooting at 406 Carl Street, Apartment 2, Mt. Oliver,
     Pennsylvania. Police interviewed Gene Marnell [(“Marnell”)] and
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     Aislinn Berardi [(“Berardi”)], who both indicated that they had
     been asleep in the bedroom until at approximately 1:00 a.m.
     when Marnell awoke to his roommate, Appellant, Sean Notman,
     returning to the residence. Marnell heard Appellant say “I could
     blow them away and they would never know.” Marnell heard
     ammunition being chambered in a gun and shortly thereafter a
     shot fired. Marnell retrieved his own firearm and confronted
     Appellant in the kitchen. Once Marnell entered the kitchen, he
     observed Appellant brandishing an AK-47 assault rifle. When
     Marnell asked Appellant what he was doing, Appellant replied,
     “Time for my last stand. Let them come.”

           Marnell and Appellant struggled for the rifle, during which
     time a round was fired by Appellant, striking the dishwasher.1
     Marnell obtained the firearm from Appellant, who collapsed to
     the ground crying. Appellant subsequently left the apartment
     after stating that if Marnell called the police, Appellant would kill
     any police that responded. Despite the threat, Marnell and
     Berardi left the apartment and called the police.
                 1
                  The initial round had gone through the wall of
           the bedroom where the victims (Marnell and Berardi)
           had been sleeping.

            When the police searched the apartment, they observed a
     notebook on Appellant’s bed with a hand-drawn diagram of a
     “Garbage Can Bomb.” Police also observed a list of accessories,
     a price list, a diagram for the AK-47, a drum, a 75 round drum
     magazine, a red dot sight, and a silencer, among Appellant’s
     possessions.      Marnell told police that Appellant regularly
     researched how to manufacture bombs, C-4 explosives, serial
     killers, and Adolph Hitler. Marnell also told police that Appellant
     had planned to wear a gorilla suit to St. Patrick’s day
     celebrations at Market Square and shoot as many people as
     possible with his AK-47.

           During the search of Appellant’s apartment, police
     recovered a gorilla suit on Appellant’s floor and a laptop
     computer on Appellant’s bed. Upon further investigation, a
     document was recovered from the laptop which contained a
     detailed and disturbing plan by Appellant to kill individuals at the
     St. Patrick’s Day parade. A search history on the computer
     included searches for how to manufacture a bomb, as well as
     mass killers and serial killers.

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Trial Court Opinion, 3/2/15, at 3-4 (internal citations omitted).

      On December 9, 2013, Appellant pled guilty at CP-02-CR-3858-2012,

which was the incident involving Marnell and Berardi, to two counts of

aggravated assault and two counts of terroristic threats with intent to

terrorize another. At CP-02-CR-15788-2012, resulting from the findings on

the laptop and the search generally, Appellant pled guilty to one count of

aggravated assault and one count of criminal attempt-causing catastrophe.

On February 27, 2014, the trial court sentenced Appellant to an aggregate

sentence of twenty to eighty years of incarceration.

      Appellant filed a timely post-sentence motion in which he argued that

his sentence was “not only out of proportion with the harm actually caused

in the case at hand, but out of proportion with other cases in the system.”

Appellant’s Post-Sentence Motion, 3/10/14, at ¶ 4.            In response to

Appellant’s post sentence motion, the trial court modified Appellant’s

sentence, reducing Appellant’s aggregate sentence to fourteen-and-one-half

to eighty years, by order entered on August 6, 2014. Appellant filed a notice

of appeal on September 5, 2014, and a concise statement of errors

complained of on November 10, 2014.          The trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

      Before we address the questions raised on appeal, we first must

resolve appellate counsel’s request to withdraw.          Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc).          There are

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procedural and briefing requirements imposed upon an attorney who seeks

to withdraw on appeal. The procedural mandates are that counsel must:

      1) 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; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his motion

to withdraw, counsel averred that he conducted a conscientious examination

of the record.   Following that review, counsel concluded that the present

appeal is wholly frivolous. Counsel sent to Appellant a copy of the Anders

brief and motion to withdraw, as well as a letter, a copy of which is attached

to the motion to withdraw. In the letter, counsel advised Appellant that he

could represent himself or retain private counsel to represent him.

      We now examine whether the brief satisfies our Supreme Court’s

dictates in Santiago, which provide 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

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         Counsel’s brief is compliant with Santiago. It sets forth the history of

this case, outlines pertinent case authority, and cites to the record. Further,

the brief sets forth counsel’s conclusion that the appeal is frivolous, and

counsel’s reasons for that determination.          We thus conclude that the

procedural and briefing requirements for withdrawal have been met.

         Accordingly, we address the following issues raised in the Anders

brief:

         1.   The trial court’s sentence was manifestly excessive as the
         aggregate sentence was excessive in light of the criminal
         conduct at issue.

         2.    The trial court’s sentence was manifestly excessive as the
         aggregate sentence was excessive in light of the lack of
         Appellant’s prior criminal history.

         3.   The trial court’s sentence was manifestly excessive as the
         aggregate sentence was excessive in light of a lack of
         aggravating factors.

         4.     The trial court’s sentence was manifestly excessive as
         institutionalization would not provide the most effective
         correctional treatment.

Appellant’s Brief at 4 (footnote omitted).

         Appellant’s issues consist of claims that the trial court abused its

discretion in imposing the sentence in this case.         Specifically, Appellant

contends that the sentence imposed was harsh and excessive in light of the

factors which should have been considered by the sentencing court. Thus,

counsel is purporting to present a challenge to the discretionary aspects of

Appellant’s sentence.


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     It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).      Rather, an appellant’s appeal should be

considered to be a petition for allowance of appeal.    Commonwealth v.

W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

     As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

           [W]e conduct a four-part analysis to determine:
           (1) whether appellant has filed a timely notice of
           appeal, see Pa.R.A.P. 902 and 903; (2) whether the
           issue was properly preserved at sentencing or in a
           motion to reconsider and modify sentence, see
           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 not appropriate under the
           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Id. at 692. Applying


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this principle, the Reeves Court held that an objection to a discretionary

aspect of a sentence is waived if not raised in a post-sentence motion or

during the sentencing proceedings.      Id.; see also Commonwealth v.

Parker, 847 A.2d 745, 752 (Pa. Super. 2004) (holding challenge to

discretionary aspect of sentence was waived because appellant did not

object at sentencing hearing or file post-sentence motion).

     Initially, we conclude that the first requirement of the four-part test is

met because Appellant brought this direct appeal in a timely manner

following the imposition of sentence.    However, our review of the record

reflects that Appellant did not meet the second requirement because he did

not raise his current challenge in a post-sentence motion or at the time of

sentencing.

     As noted, Appellant was originally sentenced on February 27, 2014, to

an aggregate sentence of twenty to eighty years of incarceration. Following

imposition of his sentence, Appellant filed a post-sentence motion.      Post-

Sentence Motion, 3/10/14, at 1-4. In response to Appellant’s post-sentence

motion, the trial court issued an order on June 27, 2014, indicating that “at

2012-15788, a modified sentencing order will be entered reflecting a

reduction of the minimum at each count, all sentences continue to run

consecutive to each other.” Order, 6/27/14, at 1. Subsequently, the trial

court issued an order on August 6, 2014, granting the post-sentence motion

to modify sentence and imposing a new sentence, resulting in an aggregate


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sentence    of   fourteen-and-one-half    to    eighty   years   of    incarceration.

Appellant filed his notice of appeal on September 5, 2014.

      No post-sentence motions were filed after the June 27, 2014 order or

imposition of the August 6, 2014 modified sentence, and there was no

related sentencing hearing. Because Appellant failed to raise his objection in

a post-sentence motion or at sentencing, Appellant’s issues are waived, and

we are precluded from addressing their merits on appeal. Reeves, 778 A.2d

at 692 (an objection to a discretionary aspect of a sentence is waived if not

raised in a post-sentence motion or during the sentencing proceedings).

      We also have independently reviewed the record in order to determine

whether     there   are   any   non-frivolous   issues   present      in   this   case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having

concluded that there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw and affirm the judgment of sentence.

      Motion to withdraw as counsel is granted.           Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2015

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