J. S47038/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
RONRON TILLMAN,                          :          No. 2548 EDA 2015
                                         :
                         Appellant       :


            Appeal from the Judgment of Sentence, March 27, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0013603-2013


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 21, 2017

        Ronron Tillman appeals from the judgment of sentence of March 27,

2015, following his conviction of third-degree murder, attempted murder,

and possession of firearm prohibited.1       Appointed counsel, Andres Jalon,

Esq., has petitioned to withdraw and filed an Anders brief.2     After careful

review, we grant the petition to withdraw and affirm the judgment of

sentence.

        The salient facts have been aptly summarized by the trial court as

follows:

                   [Appellant] pled guilty to the above-mentioned
              charges based on the following facts. See N.T.

1
    18 Pa.C.S.A. §§ 2502(c), 901(a), and 6105(a)(1), respectively.
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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          12/08/14, pp. 43-49. On July 22, 2013, sometime
          before 5:30 p.m., sixteen-year-old Anthony Gonzalez
          was walking to his grandmother’s house when he
          was assaulted by a group of individuals who took his
          cell phone near the intersections of Palethorp and
          Huntingdon Streets in Philadelphia.         Anthony
          Gonzalez continued on to his grandmother’s house
          and told his family about this incident.        After
          informing his family of this incident, Anthony
          Gonzalez returned to Palethorp and Huntingdon
          Streets with his uncle Rafael Gonzalez, Sr., his
          cousin Rafael Gonzalez, Jr., and other members of
          his family. Upon the group’s arrival at the location,
          Anthony Gonzalez encountered seventeen-year[-]old
          Wilfredo Ramos, and the two young men began to
          fistfight. At some point, a larger group of people
          became involved in this fistfight.

                 [Appellant] was associated with the group of
          individuals that hung out on the corner of Palethorp
          and Huntingdon Streets.        During this incident,
          [appellant] pulled out a handgun and shot Rafael
          Gonzalez, Sr., who fell to the ground. The bullet
          entered Mr. Gonzalez’s buttock and shattered his left
          femur and his sacrum.         He was subsequently
          transported by family members to Episcopal
          Hospital, and from there to the trauma center at
          Temple Hospital due to the critical nature of his
          injuries.   Mr. Gonzalez was treated at Temple
          Hospital, where he remained until his discharge on
          July 29, 2013. One bullet fragment was recovered
          from Mr. Gonzalez’s body, but the bullet fragments
          in his sacrum and coccyx remained because they
          could not be removed.

                The crowd dispersed following the shooting.
          Anthony Pizarro Lopez, who was associated with
          Anthony Gonzalez, ran down Huntingdon Street and
          turned right on North 2nd Street, the very next
          street. However, [appellant] chased Mr. Lopez and
          continued to fire his gun at him. Mr. Lopez was
          struck two times, once in his right thigh and once in
          his right chest. As a result, he collapsed to the
          ground on North 2nd Street.           Local residents


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            attended to him until he was transported to Temple
            Hospital in critical condition. Based on the nature of
            his injuries, doctors removed Mr. Lopez’s right lung.
            However, despite medical care Mr. Lopez died on
            July 29, 2013 at the hospital. Dr. Marlon Osbourne,
            a forensic pathologist, examined Mr. Lopez’s body
            and found that he had suffered a gunshot wound to
            the chest. The bullet perforated his right lung and
            his ninth thoracic vertebra. Dr. Osbourne concluded
            to a reasonable degree of medical certainty that the
            cause of Mr. Lopez’s death was ventilator dependent
            respiratory failure resulting from the gunshot wound.
            He further concluded to a reasonable degree of
            medical certainty that the manner of death was
            homicide. At the time of his death, Mr. Lopez was
            twenty-five (25) years old.         At least five (5)
            eyewitnesses identified [appellant] as the shooter.

                  As of July 22, 2013 [appellant] was prohibited
            from possessing a firearm because of his prior felony
            convictions. On February 13, 2013, [appellant] was
            convicted of possession with intent to deliver
            marijuana, at CP-51-CR-0009175-2012.        On that
            same date, he was also convicted of possession with
            intent to deliver cocaine and heroin, at CP-51-CR-
            0000031-2013.        Further, he also had prior
            convictions,    at   CP-51-CR-0000568-2013,        for
            possession with intent to deliver crack cocaine and
            criminal conspiracy. Although [appellant] had been
            sentenced on these convictions, he was in bench
            warrant status on July 22, 2013.

Trial court opinion, 5/13/16 at 2-3.

      On December 8, 2014, appellant pled guilty to the above charges. In

exchange for his plea, the Commonwealth nolle prossed additional charges

including first-degree murder. (Notes of testimony, 12/8/14 at 38.) It was

an open guilty plea with no agreement as to sentencing.




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      On March 27, 2015, appellant was sentenced to 20 to 40 years’

incarceration for third-degree murder, 10 to 20 years for attempted murder,

and 5 to 10 years for the firearms violation, run consecutively for an

aggregate sentence of 35 to 70 years. Appellant filed a timely motion for

reconsideration of sentence on April 1, 2015, asking for concurrent

sentences.     That motion was denied by operation of law pursuant to

Pa.R.Crim.P. 720(B)(3)(a) on July 28, 2015. A timely notice of appeal was

filed on August 19, 2015. On August 31, 2015, appellant was ordered to file

a concise statement of errors complained of on appeal within 21 days

pursuant to Pa.R.A.P. 1925(b). Appellant failed to comply, but the trial court

filed a Rule 1925(a) opinion on May 13, 2016, addressing any cognizable

issues on appeal.

      Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”

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

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

(en banc) (citation omitted).

             In order for counsel to withdraw from an appeal
             pursuant to Anders, certain requirements must be
             met, and counsel must:

             (1)    provide a summary of the procedural
                    history and facts, with citations to the
                    record;



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            (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.

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

      Upon review, we find that Attorney Jalon has complied with all of the

above requirements.     In addition, Attorney Jalon served appellant with a

copy of the Anders brief and advised him of his right to proceed pro se or

hire a private attorney to raise any additional points he deemed worthy of

this court’s review.   Appellant has not responded to counsel’s motion to

withdraw. As we find the requirements of Anders and Santiago are met,

we will proceed to the issues on appeal.3


3
  As described above, Attorney Jalon failed to comply with the trial court’s
Rule 1925 order, which is considered per se ineffectiveness of counsel and
ordinarily this court would have to remand for a supplemental trial court
opinion. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal case was
ordered to file a Statement and failed to do so, such that the appellate court
is convinced that counsel has been per se ineffective, the appellate court
shall remand for the filing of a Statement nunc pro tunc and for the
preparation and filing of an opinion by the judge.”); see also
Commonwealth v. Thompson, 39 A.3d 335, 340 n.11 (Pa.Super. 2012)
(“Under Rule 1925(c)(3), the remedy for per se ineffectiveness in criminal
cases is no longer collateral relief, but to remand to the trial court, either for
the filing of a Rule 1925(b) statement nunc pro tunc or the filing of a
Rule 1925(a) opinion addressing the issues raised in an untimely 1925(b)


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     Counsel raises one issue for review on appeal, whether appellant’s

sentence of 35 to 70 years’ incarceration was an abuse of discretion.

(Anders brief at 12-13.) However, counsel has failed to attach the requisite

Pa.R.A.P. 2119(f) statement to his brief. It is established that even in the

Anders context, the Rule 2119(f) statement is required with respect to

discretionary sentencing challenges. Commonwealth v. Wilson, 578 A.2d

523, 525 (Pa.Super. 1990). Nevertheless, because this court has a duty to

independently review the record to determine whether, in fact, the appeal is

wholly   frivolous,   we   will   examine   the   merits   of   the   issue.   Id.;

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

requires review of issues otherwise waived on appeal); Commonwealth v.

Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001) (addressing the merits of

the appellant’s discretionary aspects of sentencing challenge even though

counsel failed to comply with the trial court’s Rule 1925 order; “Anders




statement.”), citing Commonwealth v. Burton, 973 A.2d 428, 432-433
(Pa.Super. 2009) (en banc). Nevertheless, it is not necessary to remand in
this case where the trial court has addressed any potential issues to be
raised on appeal in a substantive Rule 1925(a) opinion. (Trial court opinion,
5/13/16 at 4-7.) To remand for the trial court to further consider claims
that counsel has already deemed frivolous would serve little purpose.
Compare Burton, 973 A.2d at 433 (holding remand is not necessary where
trial court addressed issues in untimely Rule 1925(b) statement). In the
same vein, to remand for a Rule 1925(b) statement nunc pro tunc would
be pointless because counsel would simply file a statement of intent to file
an Anders brief under Rule 1925(c)(4). See Pa.R.A.P. 1925(c)(4) (“In a
criminal case, counsel may file of record and serve on the judge a statement
of intent to file an Anders/McClendon brief in lieu of filing a Statement.”).


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requires that we examine the issues to determine their merit.” (emphasis in

original)).

              A challenge to the discretionary aspects of
              sentencing is not automatically reviewable as a
              matter of right. Commonwealth v. Hunter, 768
              A.2d 1136 (Pa.Super. 2001)[,] appeal denied, 568
              Pa. 695, 796 A.2d 979 (2001). When challenging
              the discretionary aspects of a sentence, an appellant
              must invoke the appellate court’s jurisdiction by
              including in his brief a separate concise statement
              demonstrating that there is a substantial question as
              to the appropriateness of the sentence under the
              Sentencing Code. Commonwealth v. Mouzon, 571
              Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
              Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
              42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
              requirement that an appellant separately set forth
              the reasons relied upon for allowance of appeal
              ‘furthers the purpose evident in the Sentencing Code
              as a whole of limiting any challenges to the trial
              court’s evaluation of the multitude of factors
              impinging on the sentencing decision to exceptional
              cases.’”     Commonwealth v. Williams, 386
              Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
              (en banc) (emphasis in original).

Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).

      Appellant    entered   an   open   guilty   plea   following   a   thorough

on-the-record plea colloquy.       Appellant also executed a written plea

colloquy.     In exchange for appellant’s plea, the Commonwealth withdrew

numerous charges including first-degree murder and aggravated assault.

Appellant faced a maximum sentence of 45 to 90 years in prison. (Notes of

testimony, 12/8/14 at 31, 42.)




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      The sentencing court had the benefit of a PSI report.         (Notes of

testimony, 12/8/14 at 55-56.)4 “Our Supreme Court has ruled that where

pre-sentence reports exist, the presumption will stand that the sentencing

judge was both aware of and appropriately weighed all relevant information

contained therein.” Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super.

2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S.

1148 (2005), citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988).   To the extent that appellant argues the trial court abused its

discretion in making his sentences consecutive, he does not raise a

substantial question for this court’s review.   “In imposing a sentence, the

trial judge may determine whether, given the facts of a particular case, a

sentence should run consecutive to or concurrent with another sentence

being imposed.” Commonwealth v. Perry, 883 A.2d 599, 603 (Pa.Super.

2005) (citations omitted). Appellant falls well short of raising a “substantial

question” for our review with respect to the trial court’s exercise of its

sentencing discretion. There is simply nothing to review here.

      For the reasons discussed above, we determine that appellant’s issue

on appeal is wholly frivolous and without merit. Furthermore, after our own



4
  The March 27, 2015 sentencing transcript does not appear anywhere in the
record, nor is there any indication that it was requested by appellant
pursuant to Pa.R.A.P. 1911(a).       However, as appellant’s discretionary
sentencing issue is plainly without merit and appellant has not responded to
counsel’s withdrawal petition, we deem it unnecessary to remand for
appellant to obtain the transcript.


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independent review of the record, we are unable to discern any additional

issues of arguable merit. Therefore, we will grant Attorney Jalon’s petition

to withdraw and affirm the judgment of sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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