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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                 v.                      :
                                         :
JOHN THOMAS PARKER ,                     :
         Appellant                       :
                                         :     No. 1833 WDA 2015

          Appeal from the Judgment of Sentence January 22, 2015
            In the Court of Common Pleas of Allegheny County
             Criminal Division No(s): CP-02-CR-0000275-2014
                         CP-02-CR-0006793-2013
                         CP-02-CR-0009422-2013
                         CP-02-CR-0009423-2013
                         CP-02-CR-0010886-2013


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                        FILED OCTOBER 03, 2016

     Appellant, John Thomas Parker, appeals from the January 22, 2015

Judgment of Sentence, imposed by the trial court after Appellant pled guilty

but mentally ill1 to more than a dozen criminal offenses, including three

counts of Defiant Trespass, two counts of Criminal Trespass, two counts of

Criminal Mischief, three counts of Intimidation of Witnesses or Victims, two

counts of Terroristic Threats, and one count of Harassment.        With this

appeal, Appellant’s counsel, Natalie L. Snyder, Esq., has filed a Petition to

1
  Appellant entered into a semi-negotiated plea agreement where the
Commonwealth withdrew or amended certain charges in exchange for
Appellant’s plea. No agreement was negotiated regarding sentencing.
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Withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.

After careful review, we affirm the Judgment of Sentence and grant

counsel’s Petition to Withdraw.

        We summarize the factual and procedural history as follows. In May of

2013, Appellant entered the home of his estranged wife on three occasions,

despite having been barred from the property. On two of those occasions,

Appellant destroyed personal effects belonging to his estranged wife.

Following his arrest on various trespassing and burglary charges, Appellant

sent two threatening letters “vow[ing] to wage revenge on those responsible

for putting him in jail” and threatening to murder his estranged wife and her

family members. N.T., 1/22/15, at 60-64. Appellant was then charged with

various offenses arising out of these letters.

        On January 22, 2015, following a lengthy colloquy from the trial court,

Appellant pled guilty but mentally ill to the above-mentioned charges.

Appellant agreed to forego a pre-sentence investigation, and the trial court

sentenced Appellant to consecutive sentences, which resulted in an

aggregate term of 10 1/4 to 30 years of imprisonment.

        Appellant filed a Motion to Modify Sentence on January 28, 2015,

which the trial court denied on January 30, 2015. Appellant did not appeal.

On May 5, 2015, Appellant filed a Petition for relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.            Following the

2
    Anders v. California, 386 U.S. 738 (1967).



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appointment of counsel, Appellant filed an Unopposed Motion to Reinstate

Petitioner’s Direct Appeal Rights Nunc Pro Tunc, which the trial court granted

on October 30, 2015. Appellant then filed the instant timely appeal to this

Court.

      On appeal, Appellant raises the following five issues for our review:

      1. Whether Appellant should be allowed to withdraw his guilty
         plea when he has discovered new evidence that demonstrates
         Appellant is innocent of the charges and the victim lied.

      2. Whether Appellant should be allowed to withdraw his guilty
         plea when he has discovered new evidence that demonstrates
         Appellant is innocent of the charges and Deandre Scott
         indicated that the victim called Appellant to the victim's
         residence and then proceeded to inform police of Appellant's
         presence.

      3. Whether Appellant should be allowed to withdraw his guilty
         plea when he has discovered new evidence of an overheard
         conversation, that demonstrates Appellant is innocent of the
         charges and the victim lied.

      4. Whether Appellant should be allowed to withdraw his guilty
         plea when he contends that Trial Counsel coerced him and
         made promises regarding sentencing that did not come to
         fruition.

      5. Whether the Trial Court abused its discretion by imposing
         consecutive sentences, not allowing for the home plan, and
         by denying Appellant's Motion to Modify Sentence.

Supplemental Anders Brief at 1 (reordered for ease of disposition).

      As Appellant’s counsel has filed an Anders Brief, we must consider her

request to withdraw as counsel prior to reviewing Appellant’s claims on the

merits. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010).




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An Anders brief must comply with the requirements set forth by our

Supreme Court in Commonwealth v. Santiago:

      [W]e hold 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.

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

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client:

      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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).       “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”          Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc). Further, “this

Court must conduct an independent review of the record to discern if there




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are   any    additional,   non-frivolous   issues   overlooked   by   counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal. Third, counsel concludes that the instant appeal is wholly

frivolous.   Lastly, counsel has complied with the requirements set forth in

Millisock.    See Letter from Counsel to Appellant, dated 6/24/16. As a

result, we proceed to conduct an independent review to ascertain if the

appeal is indeed wholly frivolous.

      In his first three issues on appeal, Appellant avers that he should be

permitted to withdraw his guilty plea due to newly-discovered evidence. The

newly discovered evidence, however, is evidence that the Appellant knew or

should have known about when the trial court had jurisdiction and thus,

should have raised before the trial court. Appellant did not seek such relief

in the trial court and cannot do so for the first time on appeal to this Court.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and




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cannot be raised for the first time on direct appeal.”).   Accordingly, such

argument is waived.3

     In his fourth issue, Appellant alleges trial counsel was ineffective for

coercing him into pleading guilty based on false promises.         Ineffective

assistance of counsel claims must be raised in collateral proceedings and not

on direct appeal. Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).

Accordingly, Appellant is not entitled to relief on this issue in this direct

appeal.

     In his final issue, Appellant challenges the discretionary aspects of his

sentence.   A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hill, 66

A.3d 359, 363 (Pa. Super. 2013).        Prior to reaching the merits of a

discretionary sentencing issue:

     [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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

3
   Our analysis does not prevent Appellant from raising the issue in a timely-
filed PCRA Petition. See 42 Pa.C.S. §9543(A)(2)(vi) (codifying grounds for
relief where petitioner presents previously unavailable exculpatory
evidence).



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        Instantly, Appellant filed a timely Post-Sentence Motion as well as a

timely Notice of Appeal after the reinstatement of his appellate rights.

Although Appellant failed to include a separate Pa.R.A.P. 2119(f) statement

in his Brief to this Court, we will not find waiver as the Commonwealth has

not made a timely objection. See Commonwealth v. Brougher, 978 A.2d

373, 375 (Pa. Super. 2009).        As to whether Appellant has presented a

substantial question, we must examine the specific sentencing issue raised

by Appellant.

        It is well-settled that:

        The determination of what constitutes a substantial question
        must be evaluated on a case-by-case basis. A substantial
        question exists only when the appellant advances a colorable
        argument that the sentencing judge's actions were either: (1)
        inconsistent with a specific provision of the Sentencing Code; or
        (2) contrary to the fundamental norms which underlie the
        sentencing process.

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

and quotation marks omitted).

        With regard to the imposition of consecutive sentences, this Court has

held:

        A court's exercise of discretion in imposing a sentence
        concurrently or consecutively does not ordinarily raise a
        substantial question. Commonwealth v. Mastromarino, 2
        A.3d 581, 587 (Pa. Super. 2010)[.] Rather, the imposition of
        consecutive rather than concurrent sentences will present a
        substantial question in only “the most extreme circumstances,
        such as where the aggregate sentence is unduly harsh,
        considering the nature of the crimes and the length of
        imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365,
        372 (Pa. Super. 2012)[(en banc)].


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              [An appellant] may raise a substantial question
              where [s]he receives consecutive sentences within
              the guideline ranges if the case involves
              circumstances where the application of the guidelines
              would be clearly unreasonable, resulting in an
              excessive sentence; however, a bald claim of
              excessiveness due to the consecutive nature of a
              sentence will not raise a substantial question.

Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)

(quotation omitted).

      As this Court has emphasized, “the key to resolving the preliminary

substantial    question   inquiry   is   whether    the   decision   to   sentence

consecutively raises the aggregate sentence to, what appears upon its face

to be, an excessive level in light of the criminal conduct at issue in the case.”

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citation and

quotation omitted).

      In the case sub judice, Appellant’s challenge to the imposition of

consecutive sentences does not raise a substantial question permitting our

review.   The trial court imposed sentences within the standard range of the

sentencing guidelines for each offense.        Appellant’s convictions stem from

five separate criminal episodes in which he terrorized his estranged wife and

multiple family members. His conduct continued despite repeated warnings

not to return to the home or contact any of his victims. Put simply, there is

nothing in the record to suggest that the trial court’s decision to impose

consecutive sentences “raises the aggregate sentence to, what appears on

its face to be, an excessive level in light of the criminal conduct at issue in


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this case.”   Prisk, 13 A.3d at 533 (citation and quotation omitted).

Accordingly, we conclude Appellant has not raised a substantial question

permitting our review as to the trial court’s imposition of consecutive

sentences.

     Accordingly, we agree with counsel that this appeal is wholly frivolous.

Furthermore, our independent review of the record reveals no additional

non-frivolous claims. We therefore grant counsel’s Petition to Withdraw and

affirm the January 22, 2014 Judgment of Sentence.

     Judgment of Sentence affirmed. Petition to Withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/3/2016




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