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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
FONTAIN S. WILSON,                      :        No. 1878 MDA 2016
                                        :
                       Appellant        :


       Appeal from the Judgment of Sentence, September 20, 2016,
            in the Court of Common Pleas of Dauphin County
            Criminal Division at No. CP-22-CR-0004535-2015


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 03, 2017

     Fontain S. Wilson appeals from the September 20, 2016 judgment of

sentence entered in the Court of Common Pleas of Dauphin County following

his conviction in a bench trial of one count of criminal use of a

communication facility, two counts of delivery of a controlled substance, one

count of possession with intent to deliver, and one count of possession of

drug paraphernalia.1   The trial court imposed an aggregate sentence of

2-4 years of incarceration, followed by 1 year of probation. Assistant Public

Defender Erin L. Hayes has filed a petition to withdraw, alleging that the

appeal is frivolous, and an Anders brief pursuant to Anders v. California,

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


1  18 Pa.C.S.A. § 7512(a), 35 P.S. § 780-113(a)(30), and 35 P.S.
§ 780-113(a)(32), respectively.
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2009).   After careful review, we grant counsel’s petition to withdraw and

affirm the judgment of sentence.

     The trial court set forth the following factual history:

                 Appellant was the subject of a drug dealing
           investigation by the Harrisburg Police Department’s
           Vice Unit. Det. Donald Heffner utilized a confidential
           informant (CI) who was working for consideration for
           his wife to purchase drugs from a dealer known as
           “Vonday” on May 28, 2015.             The CI called
           [XXX-XXX-XXXX], spoke with someone named
           Vonday and set up a $40 drug deal. They were told
           to meet in the area of 14th and Market Streets and
           that Vonday, a black male, would be in a car. The CI
           was searched, the money was photographed and the
           CI was dropped off in the area. The CI entered into
           a blue Buick with the license plate [XXXXXXX]
           occupied by one person. The car was parked on
           Market Street facing west between 14th and
           13th Streets. After the CI entered the vehicle, the
           driver drove around the block and then dropped the
           CI off near 14th and Market Streets.         The CI
           immediately returned to Det. Heffner, and provided
           him with two bags [of] crack cocaine.

                 Per department procedures, Det. Heffner had
           searched the CI prior to dropping him off.         He
           searched all clothing, pockets, waistband, socks, and
           shoes and did not find anything. He did not search
           inside the shoes or underwear. He did not lose sight
           of the CI at all during the buy. The CI never made
           contact with anyone else.        Following the buy,
           Det. Heffner searched the CI again and found
           nothing.

                   The drugs themselves were packaged in
           “little tiny” Ziploc bags; this style of packaging used
           to be popular but now is a unique form of packaging
           drugs.

                On June 2, 2015, Det. Heffner and the same CI
           met again to set up another drug deal. They utilized


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             the same phone number to call Vonday; Heffner
             searched the CI; provided photographed money to
             the CI and eventually dropped the CI off in the same
             general area as before. The CI again entered a blue
             Buick with the license plate [XXXXXXX] which drove
             around the block. The CI returned with three bags
             of crack cocaine which were packaged in the same
             way as before.

                    On June 4, 2015, Det. Heffner utilized the CI to
             set up a buy-bust of Vonday utilizing the Street
             Crimes Unit. The CI called Vonday to set up another
             buy of three bags of cocaine, the blue Buick with the
             license plate [XXXXXXX] arrived at the agreed upon
             location. The CI identified the driver as Vonday.
             Det. Heffner radioed to the Street Crimes Unit to
             stop the vehicle and take the driver into custody
             which they did.

                   The police found three bags of cocaine that
             matched the previously purchased bags as well as a
             phone with the target phone number on his person.
             Officer Fustine specifically found an envelope with
             suspected crack cocaine.

                    Det. Heffner verbally gave [a]ppellant his
             Miranda[2] rights and [a]ppellant was very
             cooperative. Det. Heffner informed [appellant] that
             they had been buying cocaine [from] him and
             [appellant] admitted he was selling drugs to pay his
             bills and his probation fines and costs. Det. Heffner
             said he knew that [a]ppellant lived in the area and
             asked if there was any cocaine in his home.
             [Appellant] responded with his address and gave
             consent for them to search it. Appellant escorted
             them into his residence and showed them a plate
             underneath his dresser with cocaine, small Ziploc
             baggies and a little piece of cardboard to scrape the
             cocaine. [Appellant] also told them where to find
             $130 cash in his home, although none of the marked
             cash from the previous buys was present.


2   Miranda v. Arizona, 384 U.S. 436 (1966).


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                  The blue Buick is registered to Nathaniel
            Rafferty.

Trial court opinion, 3/7/17 at 2-4 (citations to notes of testimony omitted).

      The trial court summarized the procedural history, as follows:

                  Appellant was arrested and charged with
            criminal use of a communication facility, 2 counts of
            delivery of a controlled substance, possession with
            intent to deliver, and possession of drug
            paraphernalia.

                   A bench trial was scheduled though testimony
            was bifurcated as Officer Fustine was unavailable to
            testify on August 18, 2016. The trial was continued
            to September 20, 2016 and [a]ppellant was found
            guilty and sentenced that day as follows:

                  Count   1:   1-2 years SCI
                  Count   2:   1-2 years SCI
                  Count   3:   1-2 years SCI
                  Count   4:   1-2 years SCI
                  Count   5:   one year of state supervision

                  Counts 1, 3, and 5 ran concurrent with one
            another and Counts 2 and 4 ran consecutive to one
            another for an aggregate of 2-4 years of
            incarceration.  He was made RRRI eligible at
            18 months and was given time credit from June 4,
            2015 to September 20, 2016.

                  A post-sentence motion was denied on
            October 18, 2016, and this Court received a timely
            Notice of Appeal. On November 14, 2016, we issued
            an order for a statement of errors [complained of on
            appeal pursuant to Pa.R.A.P. 1925(b)] and said
            statement was filed November 30, 2016.            On
            January 17, 2017, we received an order from the
            Superior Court of Pennsylvania [that] indicated that
            the appeal was dismissed for failure to comply with
            the Rules of Appellate Procedure. On January 30,
            2017, we received another order [from] the Superior



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            Court of Pennsylvania indicating that the prior order
            was vacated and the appeal reinstated.

Trial court opinion, 3/7/17 at 1-2 (footnotes omitted).

      The record reflects that the trial court then filed its Pa.R.A.P. 1925(a)

opinion on March 7, 2017.

      Appellant raises the following issue for our review:

            Whether the trial court abused its discretion in
            running    [a]ppellant’s   sentences    consecutively
            resulting in an aggregate sentence of two (2) to
            four (4) years of incarceration followed by a year of
            state-supervised probation?

Appellant’s brief at 5 (underscoring omitted).

      Assistant Public Defender Erin L. Hayes filed in this court a petition to

withdraw alleging the appeal is frivolous and an Anders brief.

            A request by appointed counsel to withdraw pursuant
            to Anders and Santiago gives rise to certain
            requirements and obligations, for both appointed
            counsel and this Court.        Commonwealth v.
            Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
            2015).

                  These requirements and the significant
                  protection they provide to an Anders
                  appellant arise because a criminal
                  defendant has a constitutional right to a
                  direct appeal and to counsel on that
                  appeal.   Commonwealth v. Woods,
                  939 A.2d 896, 898 (Pa.Super. 2007).
                  This Court has summarized these
                  requirements as follows:

                        Direct appeal counsel seeking
                        to withdraw under Anders
                        must file a petition averring
                        that, after a conscientious


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                   examination of the record,
                   counsel finds the appeal to
                   be wholly frivolous. Counsel
                   must also file an Anders
                   brief setting forth issues that
                   might arguably support the
                   appeal along with any other
                   issues necessary for the
                   effective             appellate
                   presentation thereof.

                   Anders counsel must also
                   provide a copy of the Anders
                   brief and petition to the
                   appellant,   advising    the
                   appellant of the right to
                   retain new counsel, proceed
                   pro se or raise additional
                   points worthy of the Court’s
                   attention.

               Woods, 939     A.2d   at   898   (citations
               omitted).

                   There are also requirements
                   as to the precise content of
                   an Anders brief:

                         The Anders brief that
                   accompanies court-appointed
                   counsel’s       petition       to
                   withdraw        ...        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


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                          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.

            Id. at 1248. If this Court determines that appointed
            counsel has met these obligations, it is then our
            responsibility “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 1248. In so doing, we review not only the
            issues identified by appointed counsel in the Anders
            brief, but examine all of the proceedings to “make
            certain that appointed counsel has not overlooked
            the existence of potentially non-frivolous issues.”
            Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

      Our review of Attorney Hayes’s petition to withdraw, supporting

documentation, and Anders brief reveals that she has substantially

complied with all of the foregoing requirements, which is sufficient.   See

Commonwealth v. Reid, 117 A.3d 777, 781 (Pa.Super. 2015) (finding that

“[s]ubstantial compliance with [Anders] requirements is sufficient.”).

Attorney Hayes simultaneously furnished a copy of the Anders brief to

appellant and advised him of his right to retain new counsel, proceed

pro se, and/or raise any additional points that he deems worthy of this

court’s attention.     Attorney Hayes attached a copy of that letter to the

Anders brief that she filed with this court on April 18, 2017. Although that

letter, dated April 18, 2017, states that Attorney Hayes filed a petition to


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withdraw with this court, she did not do so until June 27, 2017.                 In the

petition to withdraw, Attorney Hayes averred that, after a conscientious

examination of the record, she concluded the appeal to be wholly frivolous.

Attorney Hayes certified in the petition to withdraw that she had previously

notified appellant of his rights when she furnished him with a copy of the

Anders    brief   and   attached    the    letter   to   the     brief.    Additionally,

Attorney Hayes furnished appellant with a copy of the petition to withdraw.

Appellant has not filed a response to the Anders brief or the petition to

withdraw. Therefore, as Attorney Hayes has substantially complied with all

of the requirements set forth above, we conclude that counsel has satisfied

the procedural requirements of Anders.

      Once   counsel    has   met   her    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.” Santiago, 978 A.2d at 355 n.5. We now

turn to the merits of appellant’s appeal.

      Here, appellant complains that the trial court abused its discretion

when it imposed consecutive sentences on two counts, as opposed to

running the sentences on those two counts concurrently. (Appellant’s brief

at 5.) In his brief, appellant further contends that the trial court imposed an

excessive sentence in light of appellant’s rehabilitative needs and what is




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necessary to protect the public.      (Id. at 12-13.)      Therefore, appellant

challenges the discretionary aspects of his sentence.

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

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

omitted; brackets in original).

      Here, appellant filed a timely notice of appeal and included a

Pa.R.A.P. 2119(f) statement in his brief. In his motion to modify sentence,

appellant requested that the trial court “modify his sentence so that all

counts run concurrent to one another.” (Appellant’s post-sentence motion to

modify sentence, 9/29/16 at 2, ¶ 6.) In the argument section of his brief,

however, appellant contends that the trial court abused its discretion by

imposing an excessive sentence in light of appellant’s rehabilitative needs



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and that which is necessary to protect the public.      (Appellant’s brief at

12-13.)     Because appellant did not give the trial court the opportunity to

reconsider or modify his sentence on the basis that the sentence was

excessive in light of appellant’s rehabilitative needs and that which is

necessary to protect the public, appellant failed to properly preserve this

specific discretionary sentencing challenge for appeal. See Commonwealth

v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating issues that challenge

discretionary aspects of sentencing are generally waived if they are not

raised during sentencing proceedings or in post-sentence motion); accord

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012).              See

also Commonwealth v. Reeves, 778 A.2d 691, 692-693 (Pa.Super. 2001)

(finding waiver where appellant “did not give the sentencing judge an

opportunity to reconsider or modify sentence” on any of the bases that

appellant currently argues on appeal); Pa.R.A.P. 302(a) (“[i]ssues not raised

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

appeal”).

     Nevertheless, we will address this challenge because appointed

counsel has filed an Anders brief and a petition to withdraw.            See

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

the appellant’s discretionary sentencing challenge in light of counsel’s

petition to withdraw, despite the fact that his Pa.R.A.P. 2119(f) statement

failed to cite what particular provision of the Sentencing Code or what



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specific fundamental norm the appellant’s sentence allegedly violated), citing

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001)

(concluding that Anders requires review of issues otherwise waived on

appeal).

      We determine whether an appellant raises a substantial question on a

case-by-case basis.    Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted).    “A substantial question exists only

when an 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.” Id. (citation omitted).

            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Rather, we look
            to whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline   ranges,     is   clearly  unreasonable.
            Concomitantly,      the     substantial     question
            determination does not require the court to decide
            the merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).     This court has held that an appellant’s

“challenge to the imposition of his consecutive sentences as unduly

excessive, together with his claim that the court failed to consider his

rehabilitative needs and mitigating factors upon fashioning its sentence,

presents a substantial question” for review.       Id. at 340.   We, therefore,

proceed to the merits of appellant’s sentencing challenge.


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           The matter of sentencing is vested within the sound
           discretion of the trial court; we only reverse the
           court’s determination upon an abuse of discretion.
           To demonstrate that the trial court has abused its
           discretion, the appellant must establish, by reference
           to the record, that the sentencing court ignored or
           misapplied the law, exercised its judgment for
           reasons of partiality, prejudice, bias or ill will, or
           arrived at a manifestly unreasonable decision.
           Moreover, 42 Pa.C.S.A. § 9721(b) provides that the
           trial court must disclose, on the record, its reasons
           for imposing the sentence.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)

(citations and internal quotation marks omitted).

     Here, appellant’s sentence fell within the sentencing guidelines.     At

Count 1 (criminal use of communication facility), appellant faced a

statutorily authorized sentence of up to 7 years of incarceration.       See

18 Pa.C.S.A. § 7512(b). On that count, the trial court sentenced appellant

to 1-2 years of incarceration to run concurrent with Count 2.       As to the

controlled-substance violations at Counts 2, 3, and 4, appellant faced a

statutorily authorized sentence of up to 10 years’ imprisonment on each

count. See 35 P.S. 780-113(f)(1.1). The trial court sentenced appellant to

1-2 years of imprisonment on each count with Count 4 to run consecutive to

Count 2. As to the drug paraphernalia violation at Count 5, appellant faced

up to 1 year of incarceration. The trial court sentenced appellant to 1 year

of probation on that count. Therefore, although appellant faced 38 years of

imprisonment, the trial court imposed 2-4 years of incarceration noting that

“[t]he punitive measures could not have been accomplished with a lesser


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sentence.”3    (Trial court opinion, 3/7/17 at 5.)   We discern no abuse of

discretion.

      Moreover, our independent review of the entire record has not

disclosed any potentially non-frivolous issues. Therefore, we grant counsel’s

petition to withdraw, and we affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/3/2017




3 The record reflects that appellant received approximately 15 months of
credit for time served and the trial court made him RRRI eligible at
18 months.


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