J. S21025/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
ARTHUR A. HELZEL,                           :
                                            :
                          Appellant         :
                                            :     No. 1303 WDA 2016

             Appeal from the Judgment of Sentence March 22, 2016
               In the Court of Common Pleas of Cameron County
               Criminal Division at No.: CP-12-CR-0000032-2013

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                               FILED APRIL 25, 2017

         Appellant, Arthur A. Helzel, appeals from the Judgment of Sentence

entered following a jury trial.       Appellant‟s counsel filed a Petition to

Withdraw as Counsel and a Brief pursuant to Anders v. California, 386

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

2009), stating that the appeal is wholly frivolous. After careful review, we

grant counsel‟s request to withdraw and affirm Appellant‟s Judgment of

Sentence.

         The facts, as gleaned from the certified record, are summarized as

follows. In the summer of 2008, Appellant raped his ten-year-old niece at

his home in Emporium, Pennsylvania.         Appellant rubbed his penis on the



*
    Retired Senior Judge assigned to the Superior Court.
J. S21025/17


victim‟s vagina, he placed his penis inside the victim‟s vagina and moved her

up and down for three minutes.       He also placed his penis in the victim‟s

mouth, and ejaculated while the victim held his penis in her hand.

        When confronted by Pennsylvania State Police Trooper James Yoder,

Appellant confessed in a recorded interview after waiving his Miranda1

rights.   Appellant also produced a drawing, “which outlined [Appellant‟s]

hand and depicted the extent of his finger [that] he had inserted into his

minor niece‟s vagina.” Trial Court Opinion, 7/26/16, at 4.

        The Commonwealth charged Appellant with Rape of a Child, Indecent

Assault of a Person less than 13 years of age, and Corruption of a Minor.2

        Appellant filed a motion seeking to suppress his confession to Trooper

Yoder. The trial court denied Appellant‟s Motion to Suppress.

        At trial, the Commonwealth presented the testimony of the victim, the

victim‟s father, and Trooper Yoder. Appellant testified in his own defense,

and he denied the crimes, disputed the Commonwealth‟s allegation that the

crimes occurred in the summer of 2008, and claimed that his confession was

involuntary and produced under duress.

        Following a jury trial, the jury convicted Appellant of the above

offenses.    On March 22, 2016, the trial court sentenced Appellant to an


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
  18 Pa.C.S. § 3121(c); 18 Pa.C.S. § 3126(a)(7); and 18 Pa.C.S. §
6301(a)(1).



                                     -2-
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aggregate term of 12½ to 25 years‟ incarceration. Appellant filed a timely

Post-Sentence Motion, which the trial court denied on July 26, 2016.

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      On January 5, 2017, counsel for Appellant filed an Anders Brief and a

Petition to Withdraw as Counsel. He also filed a copy of a letter addressed

to Appellant informing Appellant of counsel‟s Petition to Withdraw and his

right to retain new counsel or proceed pro se.       Appellant did not file a

response.

      In his Anders Brief, counsel raises the following issues on Appellant‟s

behalf:

      1. [Whether] the evidence was sufficient to sustain the verdict[?]

      2. [Whether] the verdict was [] against the weight of the
      evidence[?]

      3. [Whether] the trial court [] err[ed] in denying a new trial
      based on a juror alleged to be sleeping during the trial[?]

      4. [Whether] the trial court [] err[ed] in failing to grant the
      Appellant‟s Motion to Suppress his statements to law
      enforcement[?]

      5. [Whether] the trial court [] enter[ed] an excessively harsh
      sentence[?]

Anders Brief at 10, 13, 16, 17 (capitalization omitted).

      Before we address the merits of this appeal, we must determine

whether counsel has complied with the procedures provided in Anders and

its progeny. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.


                                      -3-
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2007) (en banc).   Counsel who wishes to withdraw must file a petition to

withdraw stating that he or she has made a conscientious examination of the

record and determined that there are no meritorious issues to be raised on

appeal. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

Also, counsel must provide a copy of the Anders Brief to the appellant and

inform him of his right to proceed pro se or retain different counsel.    Id.

See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).

      The substance of the Anders 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.

      Once counsel has satisfied the above requirements, it is then this

Court‟s duty to conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous. See Goodwin, supra at 291; Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015).




                                     -4-
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      Counsel   in    the   instant   appeal        has       complied   with   the   above

requirements.       We thus proceed to conduct an independent review to

ascertain if the appeal is indeed wholly frivolous.

      In his first issue, Appellant avers that the evidence is insufficient to

sustain his convictions. Anders Brief at 10-13.

      We review challenges to the sufficiency of the evidence by considering

whether, “viewing all the evidence admitted at trial in the light most

favorable to the verdict winner, there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014). The trier of

fact—while passing on the credibility of the witnesses and the weight of the

evidence—is free to believe all, part, or none of the evidence.                 Id. at 40.

Moreover, the trier of fact may base a conviction solely on circumstantial

evidence. Id. In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for that of the fact-finder. Id.

      Section 3121 of the Crimes Code defines Rape of a Child, in relevant

part, as follows:

      § 3121. Rape

                                      *         *         *

      (c) Rape of a child.--A person commits the offense of rape of a child,
      a felony of the first degree, when the person engages in sexual
      intercourse with a complainant who is less than 13 years of age.

18 Pa.C.S. § 3121(c).



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      Section 3126 of the Crimes Code defines Indecent Assault, in relevant

part, as follows:

      § 3126. Indecent assault

      (a) Offense defined.--A person is guilty of indecent assault if
      the person has indecent contact with the complainant, causes
      the complainant to have indecent contact with the person or
      intentionally causes the complainant to come into contact with
      seminal fluid, urine or feces for the purpose of arousing sexual
      desire in the person or the complainant and:

                                *     *     *

      (7) the complainant is less than 13 years of age[.]

18 Pa.C.S. § 3126(a)(7).

      Section 6301 of the Crimes Code defines Corruption of Minors, in

relevant part, as follows:

      § 6301. Corruption of minors

      (a) Offense defined.--

      (1) (i) Except as provided in subparagraph (ii), whoever, being
      of the age of 18 years and upwards, by any act corrupts or tends
      to corrupt the morals of any minor less than 18 years of age, or
      who aids, abets, entices or encourages any such minor in the
      commission of any crime, or who knowingly assists or
      encourages such minor in violating his or her parole or any order
      of court, commits a misdemeanor of the first degree.

      (ii) Whoever, being of the age of 18 years and upwards, by any
      course of conduct in violation of Chapter 31 (relating to sexual
      offenses) corrupts or tends to corrupt the morals of any minor
      less than 18 years of age, or who aids, abets, entices or
      encourages any such minor in the commission of an offense
      under Chapter 31 commits a felony of the third degree.

18 Pa.C.S. § 6301.



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     “Actions that tend to corrupt the morals of a minor are those that

would offend the common sense of the community and the sense of

decency,   propriety[,]   and   morality   which   most   people   entertain.”

Commonwealth v. Snyder, 870 A.2d 336, 351 (Pa. Super. 2005) (citing

Commonwealth v. DeWalt, 752 A.2d 915, 918 (Pa. Super. 2000)). Thus,

the scope of the corruption statute is extremely broad, encompassing

conduct that far exceeds that which is proscribed by Chapter 31 of Title 18.

18 Pa.C.S. § 6301(a)(1)(i). The corruption statute also provides a distinct

offense and a separate penalty for sexual offenses committed against

children. 18 Pa.C.S. § 6301(a)(1)(ii).

     The trial court addressed Appellant‟s sufficiency challenge as follows:

     The evidence presented in this case included testimony of
     Commonwealth witnesses [J.B.], the father of the minor victim,
     B.B., born November 28, 1997, the minor victim herself, and
     Trooper James Yoder of the Pennsylvania State Police. Testifying
     on behalf of the defendant were Ronald Armstrong and
     [Appellant] himself.      In addition, physical evidence was
     introduced, including a waiver of [Appellant‟s] Miranda rights
     signed by [Appellant] on April 22, 2013, a CDR recording of that
     interview[,] and a drawing produced by the 6‟7” [Appellant]
     (“Uncle Artie”)[,] which outlined his hand and depicted the
     extent of his finger [that] he had inserted into his minor niece‟s
     vagina.

     While counsel were directed in the April 7, 2016 [O]rder
     scheduling the June 21, 2016 hearing to provide the Court with
     designations of the transcript portions[,] which they contended
     either supported or discredited the issues raised, [Appellant‟s]
     counsel merely argued in essence that the jury should have
     believed the testimony of the defense witnesses over that of the
     Commonwealth‟s witnesses. The Commonwealth on the other
     hand provided direction to that portion of the transcript [that]
     was relevant to the weight and sufficiency issues. That included


                                    -7-
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         specific evidence of the victim‟s age[,] and evidence presented
         as to the time frame of the incident occurring in the summer of
         2008. The jury was also able to consider a contradictory date
         provided by [J.B.] to Trooper Yoder. The victim, B.B., testified
         with some particularity regarding the incident[,] which resulted
         in the filing of the criminal charges, including the elements
         required to sustain a conviction of [R]ape of a [C]hild, [I]ndecent
         [A]ssault, and [C]orruption of [M]inors.       Moreover, Trooper
         Yoder testified to the statements provided by [Appellant] during
         the April 22, 2013 interview conducted at the Pennsylvania State
         Police barracks in Emporium, Pennsylvania, and the [recording]
         of that interview was introduced as evidence.

         [Appellant‟s] contention that the testimony of Ronald Armstrong
         and [Appellant] was more compelling and should have
         supplanted that of the Commonwealth‟s evidence in the minds of
         the jury does not suffice whatsoever.       When the evidence
         admitted at trial is viewed in the light most favorable to the
         Commonwealth, the record includes sufficient evidence that
         enabled the jury to find every element of the crimes for which
         [Appellant] was convicted beyond a reasonable doubt.

         There is no basis to determine as a matter of law that the
         prosecution evidence was so enfeebled or fantastic that no
         probability of fact could have been drawn by the jury from the
         evidence. To the contrary, each material element of the crimes
         charged and the commission of those crimes by [Appellant] were
         established beyond a reasonable doubt …[.] Obviously, the jury
         had the ability to view the demeanor and countenance of
         Armstrong and [Appellant] just as they had all Commonwealth
         witnesses and to make credibility determinations accordingly.

Trial Court Opinion, 7/26/16, at 4-5 (citations omitted). We agree with the

trial court‟s assessment.

         Viewing the totality of the evidence in the light most favorable to the

Commonwealth as the verdict winner, it is clear that the Commonwealth

proved each element of the offenses. Appellant‟s sufficiency challenge, thus,

fails.



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     In his second issue, Appellant avers that the jury‟s verdict was against

the weight of the evidence. Anders Brief at 13-16.

     When considering challenges to the weight of the evidence, we apply

the following precepts:

        The weight of the evidence is exclusively for the finder of
        fact, who is free to believe all, none or some of the
        evidence and to determine the credibility of witnesses.

        Appellate review of a weight claim is a review of the
        exercise of discretion, not the underlying question of
        whether the verdict is against the weight of the evidence.
        Because the trial judge has had the opportunity to hear
        and see the evidence presented, an appellate court will
        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court‟s
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court‟s conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations

omitted).

     Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague[,] and uncertain that the verdict shocks the conscience of the court.”

Talbert, supra at 546 (quotation marks and citation omitted).     It is well-



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settled that we cannot substitute our judgment for that of the trier of fact.

Id.

      In addition to the substantial description of the evidence set forth

above, the trial court addressed Appellant‟s weight of the evidence challenge

as follows:

      The jury‟s guilty verdicts in this case were not astonishing or
      fanciful and no sense of justice was outraged. Neither did Lady
      Justice totter from her perch nor did the [c]ourt experience any
      interruptions in respirations when the verdict was announced.
      Instead, the verdict was amply supported by relevant and
      competent evidence of adequate weight.

                                *     *      *

      [Appellant‟s] contentions that the sufficiency and weight of the
      evidence were inadequate are untenable and [Appellant‟s] claims
      for relief founded on the weight and sufficiency issues are
      denied.

Trial Court Opinion, 7/26/16, at 3-5 (citation omitted). We agree with the

trial court‟s assessment.

      Appellant essentially asks us to reassess the credibility of the victim

and reweigh the testimony and evidence presented at trial. Anders Brief at

15-16. We cannot and will not do so. The jury found credible the victim‟s

testimony, which was corroborated by Appellant‟s confession and other

testimony.    Thus, the verdict was not so contrary to the evidence as to

shock the court‟s conscience, and the trial court properly denied Appellant‟s

weight of the evidence claim.




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      In his third issue, Appellant avers that the trial court should have

granted him a new trial because of a “sleeping juror.” Anders Brief at 16.

      Before addressing the merits of Appellant‟s claim, we must address

whether Appellant has waived this issue. It is axiomatic that “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”    Pa.R.A.P. 302(a); see also Commonwealth v. Ali, 10 A.3d

282, 293 (Pa. 2010) (holding that “a Rule 1925(b) statement is not a

substitute for the contemporaneous objection required at trial.”).

      The trial court thoroughly examined Appellant‟s challenge as follows:

      [Appellant claims] that he was denied due process because
      “members of the jury were asleep throughout significant portions
      of the trial, affecting the deliberation and the outcome of the
      case.” The record is bereft of any reference to any juror being
      asleep. Certainly the timeline of the trial itself reveals that it
      was not overtaxing.        The trial commenced with opening
      instructions to the jury at approximately 9:15 a.m. At the close
      of the Commonwealth‟s evidence at 10:40 a.m., an approximate
      forty minute recess was taken, after which evidence was
      presented on behalf of [Appellant], who rested his case at about
      12:20 p.m. After some ten minutes of Commonwealth rebuttal
      evidence, the noon recess was taken from approximately 12:30
      p.m. until 1:45 p.m. The closing arguments for counsel and the
      [c]ourt‟s points for charge were provided from about 1:45 p.m.
      until 2:55 p.m. when the jury began its deliberations, resulting
      in the jury returning its verdicts of guilty on all three counts at
      about 3:35 p.m.

      Not only is the record devoid of any indication of any juror being
      [i]nattentive or asleep, but the only evidence presented on the
      issue on June 21, 2016, was the equivocal testimony of
      [Appellant]. He identified Juror No. 1 as an older gentleman who
      he observed nodding off “a couple” or “several times, more
      towards the afternoon than morning. [Appellant] recalled seeing
      Juror No. 1 with his head down and Juror No. 2 nudge him once.
      However, [Appellant] was unsure whether he had ever brought


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      the issue of Juror No. 1 nodding off to the attention of his
      attorney, twice indicating he believed he may have done so, but
      was not sure. In any event, as recited hereinabove, there is
      nothing in the record that indicates that defense counsel or any
      other court personnel communicated any issue regarding any
      juror‟s inattentiveness. [Appellant‟s] self-serving testimony is all
      that has been presented to the [c]ourt and this testimony was
      not corroborated by any other trial observer, including, but not
      limited to trial counsel. The absolute dearth of any competent
      and credible testimony to support [Appellant‟s] contention that a
      juror was sleeping during any salient portion of the trial is
      completely without merit.

Trial Court Opinion, 7/26/16, at 6 (citation omitted).

      Because Appellant raised this issue for the first time in his Rule

1925(b) Statement, it is waived. See Ali, supra at 293. Appellant is, thus,

not entitled to relief.3

      In his fourth issue, Appellant contends that the trial court erred in

denying his Motion to Suppress because the Commonwealth failed to

establish that he voluntarily and knowingly waived his Miranda rights and

his confession was coerced. Anders Brief at 16-17. We disagree.

      When reviewing the denial of a suppression motion, we are limited to

determining whether the record supports the suppression court‟s factual

findings and, assuming there is support in the record, we are bound by those

facts and may reverse only if the legal conclusions drawn from those facts

are erroneous. Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

3
  Even if Appellant had not waived this issue, he would not be entitled to
relief. See Commonwealth v. Lawson, 762 A.2d 753, 757-58 (Pa. Super.
2000) (collecting persuasive cases and applying them in the context of a
PCRA ineffectiveness claim).



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      If the suppression court held for the prosecution, we consider
      only the evidence of the prosecution‟s witnesses and so much of
      the evidence for the defense as, fairly read in the context of the
      record as a whole, remains uncontradicted. When the factual
      findings of the suppression court are supported by the evidence,
      the appellate court may reverse if there is an error in the legal
      conclusions drawn from those factual findings.

Commonwealth v. Zook, 851 A.2d 178, 180-81 (Pa. Super. 2004) (citation

omitted).

      “The determination of whether a confession is voluntary is a conclusion

of law, and as such, is subject to plenary review.”         Commonwealth v.

Roberts, 969 A.2d 594, 599 (Pa. Super. 2009).                In evaluating the

voluntariness of a confession, this Court looks at the totality of the

circumstances to determine whether, because of police conduct, the

defendant‟s “will has been overborne and his capacity for self-determination

critically impaired.”   Id. at 598-99 (citations omitted).       When reviewing

voluntariness pursuant to the totality of the circumstances, this Court

considers   the   following   factors:   “the   duration   and   means   of   the

interrogation; the physical and psychological state of the accused; the

conditions attendant to the detention; the attitude of the interrogator; and

any and all other factors that could drain a person‟s ability to withstand

coercion.” Id. at 599 (citation omitted).

      Here, in its Opinion and Order dated November 19, 2013, the trial

court ably addressed Appellant‟s Motion to Suppress as follows:

      Here, the record demonstrates that [Appellant] was by no means
      deprived of his powers of resistance to suggestion and coercion


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      and that his waiver of his constitutional rights was a knowing,
      voluntary, and intelligent waiver. [Appellant] had not been
      placed under arrest, had not been subjected to any lengthy
      questioning, had been duly advised of his Miranda rights, and
      did not evidence any lack of understanding. Moreover, at no
      point did [Appellant] ask for an attorney, seek clarification, give
      any indication that he was confused or ask to end the
      questioning.

      While [Appellant] asserts that his confession was involuntary in
      that he was tired and had consumed alcohol, the fact that the
      [Appellant] had been drinking before his interview does not
      automatically render his statements inadmissible.

                                *     *      *

      Despite [Appellant‟s] assertion that his ability to comprehend
      was compromised on April 22, 2013, because of his lack of
      sleep, drinking two shots of whiskey[,] or taking over-the-
      counter pain medicine, the circumstances demonstrated
      otherwise. Trooper Yoder testified that at the time of the April
      22, 2013 interview, [Appellant] did not appear to be intoxicated
      or under the influence of alcohol or drugs. The trooper did not
      smell any alcohol and [Appellant] appeared alert and coherent.
      Moreover, [Appellant] evidenced no difficulty in reading or
      understanding the waiver and indicated to Trooper Yoder that he
      had completed the 10th grade, had subsequently obtained an
      [G]ED,    and    worked     as    a  shift  supervisor.     See
      [Commonwealth] v. Edwards, 555 A.2d 818 (Pa. 1989)
      (defendant‟s confession was voluntary, even though he had been
      drinking prior to his arrest, because evidence demonstrated that
      the defendant was alert and aware when he confessed).

      Having been adequately apprised of his Miranda rights and
      having waived those rights, [Appellant‟s] subsequent statements
      are admissible and not subject to suppression. As [Appellant‟s]
      incriminating statements were the product of a voluntary,
      knowing, and intelligent waiver of his constitutional rights,
      [Appellant‟s] statements shall not be suppressed.

Trial Court Opinion, 11/19/13, at 4 (some citations and quotation marks

omitted). We agree with the trial court‟s analysis.



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      The record supports the suppression court‟s factual findings and legal

conclusions. Therefore, we affirm.

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

sentence. Appellant must properly invoke this Court‟s jurisdiction in order to

seek review on the merits.         “Challenges to the discretionary aspects of

sentencing    do   not   entitle   an      appellant   to   review   as   of   right.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted).    Rather, Appellant must first meet his burden of satisfying the

following four elements before we will review the discretionary aspect of a

sentence:

      (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.[] § 9781(b).

Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

      Here, Appellant met the first two elements by filing a timely Notice of

Appeal, and properly preserving the issue in a Post-Sentence Motion to

modify his sentence.       Although the Anders Brief does not include a

Statement of Reasons Relied Upon for Allowance of Appeal pursuant to

Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”), we may review this issue

notwithstanding    the   absence     of     a   Rule   2119(f)   Statement.      See



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Commonwealth       v.   Lilley,   978     A.2d   995,   998   (Pa.   Super.   2009)

(addressing discretionary sentence issue despite absence of Rule 2119(f)

Statement in light of Anders, which “requires review of issues otherwise

waived on appeal” (citation omitted)).

      Accordingly, we next determine whether Appellant‟s claims present a

“substantial question” for review.          An appellant raises a “substantial

question” when he “sets forth a plausible argument that the sentence

violates a provision of the sentencing code or is contrary to the fundamental

norms of the sentencing process.”        Commonwealth v. Crump, 995 A.2d

1280, 1282 (Pa. Super. 2010) (citation omitted).              This Court has no

jurisdiction where an Appellant fails to raise “a substantial question as to

whether the trial judge, in imposing sentence, violated a specific provision of

the Sentencing Code or contravened a „fundamental norm‟ of the sentencing

process.” Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super.

2011) (citations omitted).

      In the instant case, although Appellant recognizes that his sentence of

12½ to 25 years‟ incarceration for Rape of a Child is within the minimum

guideline range, he avers that his sentence was unreasonable and

excessive.4   Anders Brief at 17-19.        None of Appellant‟s contentions sets


4
  Appellant also acknowledges that his conviction for Indecent Assault of a
Person less than 13 years of age merged with Rape of a Child, and his
concurrent sentence of 9 months to 5 years‟ incarceration for Corruption of a
Minor “is within the minimum guideline range. Id. at 18-19.



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forth a “plausible argument that the sentence violates a provision of the

sentencing code or is contrary to the fundamental norms of the sentencing

process.” Crump, supra at 1282.

     It is clear from our precedent that Appellant has failed to raise a

substantial question as to his sentence, and therefore failed to invoke the

jurisdiction of this Court. See, e.g., Commonwealth v. Coolbaugh, 770

A.2d 788, 792-93 (Pa. Super. 2001) (finding no substantial question raised

by a claim that a probation revocation sentence was manifestly excessive

where sentence was within statutory guidelines and within sentencing

guidelines); Commonwealth v. Coss, 695 A.2d 831, 833-34 (Pa. Super.

1997) (holding that, when the sentence imposed falls within the statutory

recommendation, an appellant‟s claim that a sentence is manifestly

excessive fails to raise a substantial question).     Therefore, we affirm

Appellant‟s Judgment of Sentence.

     Accordingly, in light of the above and our further independent review

of the record, we conclude that there are no meritorious issues to be raised

on appeal, and the Judgment of Sentence should be affirmed.

     Judgment of Sentence affirmed.          Counsel‟s Petition to Withdraw

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2017




                          - 18 -
