J-S43020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ERIC SHORTER

                         Appellant                   No. 2603 EDA 2014


          Appeal from the Judgment of Sentence August 26, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008464-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                              FILED JULY 28, 2015

      Appellant, Eric Shorter, appeals from the judgment of sentence

entered on August 26, 2014, following a violation of probation hearing.

Shorter argues the sentencing court committed an abuse of discretion.

Specifically, by imposing a manifestly excessive sentence by directing that

the sentence of one to two years’ incarceration imposed following the

revocation of his probation be served consecutive to the term of twenty-nine

to fifty-eight years’ incarceration imposed in an unrelated homicide matter.

Additionally, his court-appointed counsel, John Martin Belli, Esquire, has filed

an application to withdraw as counsel pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We affirm and grant counsel’s petition to withdraw.
J-S43020-15



       In 2012, Shorter pled guilty to the charge of possession with intent to

deliver a controlled substance for which the trial court sentenced him to one

to twelve months’ imprisonment, followed by four years’ probation.

       In 2013, Shorter was tried and convicted of terroristic threats. In

2014, he pled guilty to third degree murder and related gun charges. He

received    an    aggregate    sentence        of   twenty-nine   to   fifty-eight   years’

incarceration.1

       Because of the 2013 and 2014 convictions, the court subsequently

revoked Shorter’s probation after a hearing and re-sentenced him to a term

of one to two years’ imprisonment, to run consecutively to the sentence

imposed for the third degree murder conviction and other crimes.

       Shorter did not file a post-sentence motion to the revocation sentence,

but filed a timely notice of appeal. Appointed counsel filed in this Court a

motion to withdraw as counsel and an Anders brief in support thereof.

       When court-appointed counsel seeks to withdraw from representation

on appeal, counsel must meet the following requirements.

       [I]n 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
____________________________________________


1
  It is unclear from the record whether the terroristic threats charge was
included in this aggregate sentence or if it received its own sentence. It
makes no difference for our purposes here.



                                           -2-
J-S43020-15


      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. Once counsel has met his 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.” Id. at 355 n.5 (citation omitted).

      Here, counsel has complied with the procedure laid out in Santiago.

Counsel filed a motion seeking permission to withdraw as counsel,

concluding that after careful review he found the appeal to be wholly

frivolous. Counsel also submitted a brief referring to the sole issue on appeal

challenging the discretionary aspect of Shorter’s sentence. Finally, counsel

furnished a copy of the Anders Brief to Shorter and advised him of his

rights.

      Since counsel has complied with the requirements for withdrawing as

counsel, we may now proceed to examine the claim set forth in the Anders

Brief. Shorter argues that the trial court abused its discretion in sentencing

him to a consecutive term of imprisonment following his probation violation.

      Our standard when reviewing a sentence imposed following the

revocation of probation is as follows.

      Our review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. Also, upon sentencing following a
      revocation of probation, the trial court is limited only by the

                                      -3-
J-S43020-15


      maximum sentence that it could have imposed originally at the
      time of the probationary sentence.

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citation

omitted). See also 42 Pa.C.S.A. § 9771(b). “[T]he imposition of sentence

following the revocation of probation is vested within the sound discretion of

the trial court, which, absent an abuse of discretion, will not be disturbed on

appeal.” Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013)

(citations omitted).

      Shorter challenges the discretionary aspects of his sentence. Our

scope of review in an appeal from a revocation sentencing includes

discretionary sentencing challenges. See Commonwealth v. Cartrette, 83

A.3d 1030, 1034 (Pa. Super. 2013) (en banc). Therefore, Shorter’s claim is

properly before us.

      “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. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test.

      We 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


                                      -4-
J-S43020-15


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

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      We evaluate the determination of a substantial question on a case-by-

case basis. See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.

2011). “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[W]e cannot look

beyond the statement of questions presented and the prefatory 2119(f)

statement    to   determine    whether     a   substantial   question   exists.”

Commonwealth v. Christine, 78 A.3d at 1, 10 (Pa. Super. 2013) (citation

omitted).

      Shorter claims that the trial court abused its discretion and imposed a

manifestly excessive sentence in imposing a consecutive, rather than

concurrent sentence, for his probation violation. The decision whether to

impose consecutive or concurrent sentences is left to the sound discretion of

the trial court. See Prisk, 13 A.3d at 533. “Any challenge to the exercise of

this discretion ordinarily does not raise a substantial question.” Id. (citation

omitted). “The imposition of consecutive, rather than concurrent, sentences

may raise a substantial question in only the most extreme circumstances,

                                     -5-
J-S43020-15


such as where the aggregate sentence is unduly harsh, considering the

nature of the crime and the length of imprisonment.” Commonwealth v.

Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (citation omitted)

(emphasis added).

      That is simply not the case here. Shorter has not raised a substantial

question. Considering the nature of his crimes that resulted in the revocation

of his probation—namely, murder—the new sentence of one to two years’

imprisonment to run consecutive to his other sentence, is not unduly harsh.

Accordingly, we agree with counsel that this claim is frivolous.

      After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed. Petition to withdraw as counsel

granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




                                     -6-
J-S43020-15




              -7-
