J-S43027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOSEPH KWAHA

                            Appellant              No. 2773 EDA 2014


            Appeal from the Judgment of Sentence August 12, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001941-2013
                                         CP-51-CR-0001943-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                      FILED DECEMBER 14, 2015

        Appellant, Joseph Kwaha, appeals from the judgment of sentence

entered on August 12, 2014, after he pled guilty in an open guilty plea to

charges of aggravated assault, accident involving death or personal injury,

and possession of an instrument of crime (“PIC”).1 He also pled guilty to

charges of possession of controlled substance with intent to deliver,

possession of firearm – prohibited, and fleeing or attempting to elude

officer.2 Additionally, Kwaha’s court appointed counsel, Stanley R. Krakower,

Esquire, has filed an application to withdraw as counsel pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
____________________________________________


1
    All charges docketed at CP-51-CR-1941-2013.
2
    All charges docketed at CP-51-CR-1943-2013.
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A.2d 349 (Pa. 2009). We affirm and grant attorney Krakower’s application to

withdraw.

     Police observed a car, later determined to be driven by Kwaha, ignore

a stop sign. The police attempted to pull the car over, but Kwaha fled. While

fleeing from the police, Kwaha struck a pedestrian with his car, shattering

the victim’s pelvis. Kwaha then drove into a telephone pole, starting a fire

that disabled electricity service to the neighborhood. Kwaha then exited the

vehicle and ran. Officers caught Kwaha and subdued him after a brief fight.

     After arresting Kwaha, officers found multiple packets of heroin, crack

cocaine, and marijuana, as well as $461 in cash on his person. They also

recovered a handgun from the floor of the car.

     Following a colloquy, Kwaha pled guilty to the counts set forth above.

That same day, the court sentenced Kwaha to two years of probation for his

PIC and fleeing and eluding convictions. The court then recessed to allow for

the preparation of a presentence investigation report. After receiving the

report, the court sentenced Kwaha to an aggregate sentence of nine and a

half to twenty years’ incarceration for his aggravated assault conviction, as

well as $9,112.92 in restitution. Kwaha did not file any post sentence

motions or a motion to withdraw his guilty plea.

     Kwaha filed a timely appeal. After trial counsel was permitted to

withdraw, and new counsel was appointed, a second order directing counsel

to file a Rule 1925(b) statement was filed. Initially, no such statement was


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filed, and Attorney Krakower filed his application to withdraw and Anders

brief in this Court. We observed that under Commonwealth v. McBride,

957 A.2d 752, 756 (Pa. Super. 2008), attorney Krakower was required to file

either a Rule 1925(b) statement or a notice of intent to file an Anders brief

with the trial court, and therefore remanded the case. Attorney Krakower

subsequently filed a notice of intent to file an Anders brief, and this appeal

is now properly before us.

      When court-appointed counsel seeks to withdraw from representation

on appeal, counsel must meet the following requirements.

      [I]n 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). Once counsel

has met his 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.” Id., at 355 n.5 (citation omitted).

      Counsel has substantially complied with the technical requirements of

Anders as articulated in Santiago. Additionally, counsel confirmed that he

sent a copy of the Anders brief to Kwaha, as well as a letter explaining to

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Kwaha that he has the right to proceed pro se or the right to retain new

counsel. See Commonwealth v. Daniels, 999 A.2d 5990, 594 (Pa. Super.

2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).

Kwaha has not filed a response.

      We will now proceed to examine the issues counsel has set forth in the

Anders brief.   Counsel identifies four issues that Kwaha desires to raise,

which upon examination resolve to two issues. First, Kwaha contends that

his guilty plea was involuntary due to counsel’s failure to explain the

consequences    of   his   plea.   However,   we    observe   that   claims   of

ineffectiveness of counsel are generally not ripe until collateral review. See

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). To the extent

that Kwaha’s argument hinges on circumstances other than counsel’s

effectiveness, our review of the record indicates that he was fully apprised of

the consequences of his plea during his oral colloquy with the trial court.

See N.T., Guilty Plea, 3/24/14, at 14-21. We therefore agree with counsel’s

assessment that this issue is wholly meritless.

      In his second issue, Kwaha contends that the aggregate sentence of

imprisonment imposed is excessive. As the Commonwealth notes, none of

the sentences imposed exceed the statutory maximum, nor is Kwaha

arguing against the imposition of mandatory minimums.         Thus, his claim

raises a challenge to the discretionary aspects of the sentence imposed.




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See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super.

2007).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.       See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274 (citation omitted). “First, an appellant must set forth in his brief a

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted).   That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.”       Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our

inquiry must focus on the reasons for which the appeal is sought, in contrast




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to the facts underlying the appeal, which are necessary only to decide the

appeal on the merits.” Id. (citation omitted).

      In the present case, Kwaha’s appellate brief does not contain the

requisite Rule 2119(f) concise statement, and, as such, this issue could be

technically waived. See, e.g., Commonwealth v. Gambal, 561 A.2d 710,

713 (Pa. 1989).    Furthermore, the argument section of counsel’s Anders

brief does not separately list the arguments regarding each issue identified.

However, rather than remand for an appropriate Anders brief, we will

address Kwaha’s issue on the merits in the interest of judicial efficiency.

      Kwaha argues that the sentence imposed by the trial court was

excessive. It is well-settled that a generic claim that a sentence is excessive

does not raise a substantial question for our review.                 See, e.g.,

Commonwealth        v.   Christine,   78   A.3d   1,   10   (Pa.   Super.   2013).

Furthermore, while the sentences are aggravated range sentences, they are

within the guidelines. The trial court observed that

      [t]here’s a lot going on. There’s a lot of damage and harm that
      you caused, not only to the individual; he was badly injured,
      almost killed, but also to the community, that the power grid
      was taken down.

      There were fires there; homes could have burned down. We are
      very fortunate – you could have been killed, yourself in a fiery
      crash.

      This was a catastrophe, and the sentence has to reflect that.

      Now of course, we do give consideration to the fact that you did
      plead guilty and there was energy saved, expense and time and
      cost to the Commonwealth, as well as – the complaining witness

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      didn’t have to come in and be put through that, certainly that
      has to be given its due consideration, but this is a very, very
      serious matter, and looking at the recommendation of your
      counsel, at the five-to-ten years, six to 12-year range; looking at
      the seriousness of that – of this matter, I have to go past that.

      …

      This isn’t the first time that he fled the police. At least three
      times, including Upper Darby; other counties you have done the
      same thing. It didn’t result in that kind of catastrophe, but it’s a
      matter of time before it gets there and now we are here, we are
      at this time, so the sentence has to reflect the gravity.

N.T., Sentencing, 8/12/14, at 43-46.

      This discussion indicates that the trial court carefully considered the

circumstances of the case and the impact of the sentence upon Kwaha.

Furthermore, the trial court also had the benefit of a pre-sentence

investigation before imposing sentence. Where the court had the benefit of

a pre-sentence investigation report, there is a presumption that the court

was aware of information relating to the defendant’s character, and

considered that information along with the mitigating statutory factors. See

Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005);

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). As such,

we agree with counsel that Kwaha’s challenge to the discretionary aspects of

his sentence is wholly meritless.

       After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.


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      Judgment of sentence affirmed. Permission to withdraw as counsel is

granted. Jurisdiction relinquished.

      President Judge Gantman joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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