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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
EDWARD HOLMES,                           :         No. 740 MDA 2014
                                         :
                        Appellant        :


          Appeal from the Judgment of Sentence, March 26, 2014,
           in the Court of Common Pleas of Lackawanna County
            Criminal Division at Nos. CP-35-CR-0002459-2013,
            CP-35-CR-0002460-2013, CP-35-CR-0002623-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 09, 2014

      Edward Holmes appeals from the judgment of sentence of March 26,

2014, following his conviction of simple assault, terroristic threats, theft by

deception, and possession of a controlled substance.         Appointed counsel,

Donna M. DeVita, Esq., has filed a petition to withdraw and accompanying

Anders1 brief. After careful review, we grant the petition to withdraw and

affirm the judgment of sentence.

      On December 6, 2013, appellant entered an open guilty plea to simple

assault, terroristic threats, and theft by deception.    As part of the plea




* Former Justice specially assigned to the Superior Court.
1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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agreement, the remaining charges were nolle prossed. The simple assault

charge related to an incident on October 31, 2013, wherein appellant threw

a candle at the victim, striking him and causing injury. (Notes of testimony,

12/6/13 at 5.) The terroristic threats charge related to a separate incident

on   October    27,   2013,   wherein   appellant   placed   a   pillow   over   his

ex-girlfriend’s face, grabbed her by the neck, and made threats, including

stating, “Not now, but next time.”        (Id. at 6.)   With regard to theft by

deception, it was alleged that on September 8, 2013, appellant cashed a

check for $468.02 using the victim’s identification. (Id.)

      On March 26, 2014, appellant appeared before the Honorable Vito P.

Geroulo for sentencing. Along with the three charges above, appellant was

to be sentenced for a 2011 case of simple possession. Despite appellant’s

repeat felony offender (“REFL”) status, appellant asked for a county

sentence due to his diagnosis of stage 4 colon cancer and the fact that he is

an alcoholic.   (Notes of testimony, 3/26/14 at 5-6.)        Appellant also noted

that he had no prison misconducts, was a block worker, and never violated

probation/parole.     (Id. at 6-7.)   Appellant’s prior felonies were from 1980

and 1992. (Id. at 6.)

      Judge Geroulo imposed a sentence of 1 to 2 years’ incarceration for

simple assault, 1 to 3 years for terroristic threats, 1 to 2 years for theft by

deception, and 6 to 12 months for simple possession.                (Id. at 8-9.)

Appellant’s sentences for simple assault and terroristic threats were run



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concurrently for an aggregate sentence of 2½ to 6 years. (Id.) Appellant’s

sentences all fell at the bottom of the standard range of the sentencing

guidelines. (Id. at 9-10.)

      On March 27, 2014, appellant filed a motion for reconsideration of

sentence, again asking for a county sentence in light of his medical history

and prison record.        Appellant’s post-sentence motion was denied on

March 28, 2014. This timely appeal followed on April 24, 2014. Appellant

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.

      Appellant has raised the following issues for this court’s review,

challenging the discretionary aspects of his sentence:

            A.      Whether     the   sentences imposed   were
                    inappropriately harsh and excessive and an
                    abuse of discretion?

            B.      Whether the lower court failed to take into
                    consideration    Appellant’s medical   and
                    rehabilitation needs when it imposed its
                    sentences?

Appellant’s brief at 4.

      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).


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           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;

           (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 DeVita has complied with all of the

above requirements. In addition, Attorney DeVita served appellant 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.

           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


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            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).

      Instantly, appellant has complied with Rule 2119(f) by including the

requisite statement in his brief. (Appellant’s brief at 8-9.) However, we find

that appellant does not raise a substantial question for our review.

Appellant acknowledges that he received a standard range sentence but

argues that the     aggregate    sentence   was excessive in light of the

circumstances. (Id.) Appellant’s argument is mere boilerplate. Appellant

entered an open guilty plea and received a guideline sentence.        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.     Commonwealth v. Maneval, 688 A.2d 1198,

1199-1200 (Pa.Super. 1997) (“Generally, if the sentence imposed falls




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within the sentencing guidelines, no substantial question exists.”), citing

Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.Super. 1995).

      With regard to appellant’s claim that the trial court failed to give

sufficient weight to mitigating factors such as his alcoholism and medical

condition, an argument that the sentencing court failed to consider

mitigating factors in favor of a lesser sentence does not present a

substantial question appropriate for our review; as such, we need not

address it.    Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258

(Pa.Super. 2004), citing Commonwealth v. McNabb, 819 A.2d 54, 57

(Pa.Super. 2003).   See also Commonwealth v. Griffin, 804 A.2d 1, 9

(Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied,

545 U.S. 1148 (2005), citing Williams, supra (an allegation that the

sentencing court did not adequately consider various factors is, in effect, a

request that this court substitute its judgment for that of the lower court in

fashioning a defendant’s sentence).

      In addition, the court had the benefit of a PSI report. “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.”    Griffin, supra at 8,

citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).           We note

that Judge Geroulo was well aware of appellant’s cancer diagnosis and

directed that he be housed in an appropriate facility. (Notes of testimony,



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3/26/14 at 9.)      Judge Geroulo also indicated his intention to monitor

appellant’s case to ensure that any and all medical needs are being

provided. (Id.)

     Having determined that the instant appeal is wholly frivolous, and

after our own independent review, that there are no issues of arguable merit

apparent from the record, we will grant Attorney DeVita’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: 12/9/2014




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