J-S19008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RUSHQUAN MATTHEWS,

                        Appellant                    No. 1320 EDA 2015


       Appeal from the Judgment of Sentence Entered April 15, 2015
              In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0001613-2014


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 19, 2016

     Appellant,   Rushquan   Matthews,     appeals   from   the   judgment   of

sentence of 9½ to 30 years’ incarceration, imposed after he pled guilty to

attempted murder. Appellant raises one issue challenging the discretionary

aspects of his sentence. Additionally, his counsel, Michael E. Brunnabend,

Esq., seeks to withdraw his representation of Appellant pursuant to Anders

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

A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of

sentence and grant counsel’s petition to withdraw.

     Appellant entered a guilty plea to attempted murder on March 9, 2015,

based on the following facts.       On January 10, 2014, Appellant and the

victim, Thomas Rispoli, agreed to meet so that Rispoli could sell marijuana

to Appellant. N.T. Plea, 3/9/15, at 5. During the drug transaction, Appellant
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demanded Rispoli’s money and an argument ensued.             Id. at 6.   Appellant

ultimately shot Rispoli in the jaw, with the bullet ending up lodged in

Rispoli’s neck. Id. Rispoli survived the shooting. Id.

      Appellant was arrested and charged with various offenses. He and the

Commonwealth reached a partially-negotiated plea agreement by which

Appellant would plead guilty to attempted murder in exchange for a

minimum sentence of 9½ years’ incarceration. The parties agreed that the

trial court would determine the maximum sentence.               During the plea

proceeding, Appellant stated that he understood this agreement, and

acknowledged that “the maximum [sentence was] up to the [c]ourt.” N.T.

Plea, 3/9/15, at 3.    Appellant entered the guilty plea and sentencing was

deferred for a presentence report to be prepared. Id. at 7.

      Appellant’s sentencing hearing was conducted on April 15, 2015.           At

the conclusion thereof, the court imposed the negotiated, minimum term of

9½ years’ incarceration, and a maximum term of 30 years’ incarceration.

Appellant filed a timely, post-sentence motion for reconsideration of his

sentence, arguing that the maximum term of 30 years was “unreasonable,

too harsh, or otherwise not justified under the circumstances….”              Post-

Sentence Motion, 4/23/15, at 1 (unnumbered). Appellant also asserted that

the court failed to consider certain mitigating factors, such as Appellant’s

young age and his efforts to obtain his GED while incarcerated.          Id. at 2.

Additionally,   Appellant   claimed   that   the   court   “over-emphasized    the

punishment aspect of sentencing to the exclusion of all other appropriate

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sentencing factors including, but not limited to, [Appellant’s] rehabilitative

needs.”   Id.   On April 24, 2015, the trial court issued an order denying

Appellant’s post-sentence motion. Appellant filed a timely notice of appeal,

as well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal.       Therein, Appellant raised one issue challenging the

discretionary aspects of his maximum sentence for essentially the same

reasons stated in his post-sentence motion.

      On October 13, 2015, Attorney Brunnabend filed with this Court a

petition to withdraw as Appellant’s counsel. Attorney Brunnabend has also

filed an Anders brief, asserting that Appellant’s sentencing issue is frivolous,

and that Appellant has no other non-frivolous issues counsel could assert on

appeal.

      This Court must first pass upon counsel's petition to withdraw
      before reviewing the merits of the underlying issues presented
      by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
      287, 290 (Pa. Super. 2007) (en banc).

      Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in Santiago. The 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.

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        Santiago, 978 A.2d at 361. Counsel also must provide a copy of
        the Anders brief to his client. Attending the brief must be a
        letter that advises the client of his right to: “(1) retain new
        counsel to pursue the appeal; (2) proceed pro se on appeal; or
        (3) raise any points that the appellant deems worthy of the
        court[']s attention in addition to the points raised by counsel in
        the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
        353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
        (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”           Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

        In this case, Attorney Brunnabend’s Anders brief complies with the

above-stated requirements. Namely, he includes a summary of the relevant

factual and procedural history, he refers to portions of the record that could

arguably support Appellant’s sentencing claim, and he sets forth his

conclusion that Appellant’s appeal is frivolous. He also explains his reasons

for reaching that determination, and supports his rationale with citations to

the record and pertinent legal authority. Attorney Brunnabend also states in

his petition to withdraw that he has supplied Appellant with a copy of his

Anders brief, and he attaches a detailed letter, directed to Appellant, in

which    he   informs   Appellant   of    the   rights   enumerated   in   Nischan.

Accordingly, counsel has complied with the technical requirements for

withdrawal.    We will now independently review the record to determine if


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Appellant’s sentencing issue is frivolous, and to ascertain if there are any

other non-frivolous issues Appellant could pursue on appeal.

      We begin by noting:

      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. When challenging the
      discretionary aspects of the sentence imposed, an appellant
      must present a substantial question as to the inappropriateness
      of the sentence. Two requirements must be met before we will
      review this challenge on its merits. 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. Second, the appellant must show that there is a
      substantial question that the sentence imposed is not
      appropriate under the Sentencing Code. That is, [that] 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.           We
      examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
      determine whether a substantial question exists. Our inquiry
      must focus on the reasons for which the appeal is sought, in
      contrast to the facts underlying the appeal, which are necessary
      only to decide the appeal on the merits.

Id. at 886-87 (citations, quotation marks and footnote omitted; emphasis in

original).

      Here, according to Attorney Brunnabend, Appellant seeks to argue that

his maximum sentence is excessive because the court failed to make

“reasonable inquiry into the variety of factors required by the Sentencing

Code[,]” especially Appellant’s rehabilitative needs. Anders Brief at 14; see

also 42 Pa.C.S. § 9721(b) (requiring the sentencing court to consider “the

protection of the public, the gravity of the offense as it relates to the impact



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on the life of the victim and on the community, and the rehabilitative needs

of the defendant”).   Attorney Brunnabend concludes that this sentencing

claim does not constitute a substantial question for our review. See Anders

Brief at 17.    In support, Attorney Brunnabend cites Commonwealth v.

Brown, 587 A.2d 4 (Pa. Super. 1991), where this Court held that when the

minimum sentence imposed is within the guideline range, and the maximum

sentence imposed “is within the range prescribed by statute,” a “challenge to

the maximum sentence imposed does not set forth a substantial question as

to the appropriateness of the sentence under the guidelines.” Id. at 6.

       While we acknowledge Brown, we note that, more recently, this Court

found a substantial question warranting review in a claim very similar to that

presented by Appellant. See Commonwealth v. Coulverson, 34 A.3d 135

(Pa. Super. 2011). In Coulverson, “the trial court imposed an aggregate

sentence commencing in the standard range of the Sentencing Guidelines,

and running to the statutory maximum for each of the offenses on which

sentence was imposed[,]” resulting in an aggregate term of 18 to 90 years’

imprisonment.     Id. at 139.     On appeal, Coulverson “concede[d] the

appropriateness of the lower range of the sentence, but contest[ed] the

imposition of multiple statutory maximums.”       Id.   Coulverson asserted,

inter alia, that the aggregate, maximum term was manifestly excessive

because the sentence took “no account of his rehabilitative needs and [was]

disproportionate to the circumstances when adjudged as a whole.”       Id. at

143.    We concluded that Coulverson’s claim presented a substantial

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question, pointing out that our Court had previously decided “that claims of

excessiveness may be justiciable as substantial questions based on the

circumstances of the case and the extent to which the appellant’s Rule

2119(f) statement suggests the trial court’s deviation from sentencing

norms.”    Id. (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.

Super. 2005)).

      Here, Attorney Brunnabend notes that, “the [trial] [c]ourt seems to

brush aside any significant review of [Appellant’s] need for rehabilitation.”

Anders Brief at 14.    Additionally, the maximum sentence imposed by the

court was over three times the minimum term of incarceration. In light of

these circumstances, and guided by our decision in Coulverson, we

consider Appellant’s sentencing claim as constituting a substantial question

for our review.

      In assessing the merits of a challenge to the discretionary aspects of a

sentence, we apply the following standard:

          Sentencing is a matter vested in the sound discretion of
          the sentencing judge, and a sentence will not be disturbed
          on appeal absent a manifest abuse of discretion. In this
          context, an abuse of discretion is not shown merely by an
          error in judgment. Rather, 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.

      Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.
      1999) (en banc) (quotations marks and citations omitted). See
      also Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957,
      961 (2007) (citation omitted) (“An abuse of discretion may not
      be found merely because an appellate court might have reached

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     a different conclusion, but requires a result of manifest
     unreasonableness, or partiality, prejudice bias or ill-will, or such
     a lack of support as to be clearly erroneous.”).

Coulverson, 34 A.3d at 143-44.

     After reviewing the record of Appellant’s sentencing hearing, we

ascertain no abuse of discretion by the court in imposing a maximum term of

30 years’ imprisonment. During the sentencing proceeding, the trial court

stated that it had “received and reviewed the pre-sentence report and

attachments.” N.T. Sentencing, 4/15/15, at 2. This Court has stated:

     In imposing sentence, the trial court is required to consider the
     particular circumstances of the offense and the character of the
     defendant. The trial court should refer to the defendant's prior
     criminal record, age, personal characteristics, and potential for
     rehabilitation. However, where the sentencing judge had the
     benefit of a presentence investigation report, it will be presumed
     that he or she was aware of the relevant information regarding
     the defendant's character and weighed those considerations
     along with mitigating statutory factors. Commonwealth v.
     Burns, 765 A.2d 1144, 1150-1151 (Pa. Super. 2000) (citations
     omitted). Additionally, the sentencing court must state its
     reasons for the sentence on the record. 42 Pa.C.S.A. § 9721(b).
     The sentencing judge can satisfy the requirement that reasons
     for imposing sentence be placed on the record by indicating that
     he or she has been informed by the pre-sentencing report; thus
     properly considering and weighing all relevant factors. See
     Burns, supra, citing Commonwealth v. Egan, 451 Pa. Super.
     219, 679 A.2d 237 (1996).

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

     Additionally, at the sentencing hearing, the court heard brief remarks

from Appellant, who expressed his remorse for the shooting.                 N.T.

Sentencing at 3.   Defense counsel explained to the court that since being

incarcerated, Appellant had been taking courses to obtain his GED and



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hoped to take college courses in the future.       Id. at 4.    Counsel also

confirmed that Appellant was remorseful for what he had done, id., and

stated that Appellant “needed to be in treatment [for] longer,” or receive

some guidance while incarcerated regarding “what he needs to do to be a

productive citizen.” Id. at 6. Ultimately, defense counsel asked the court

“to consider something less than the recommendation as far as the

maximum [sentence], perhaps a 20-year maximum,” to allow Appellant to

“improve himself while he’s out on supervision when he would get paroled.”

Id.

      Before imposing Appellant’s sentence, the court stated its reasons for

fashioning Appellant’s maximum term of incarceration.      Notably, the court

stressed the seriousness of Appellant’s offense, and the danger he posed to

the community, by pointing out that Appellant had taken a loaded gun to a

drug deal and then shot the victim in the face.      Id. at 7-8.    The court

commented that “the only reason [Appellant] stopped firing and this victim

is alive is because [his] gun jammed, not because [Appellant] stopped [his]

actions in any way.” Id. at 8. The court also took into account Appellant’s

juvenile record and the “remarks in the [pre-sentence report,]” which

indicated that previous efforts to rehabilitate Appellant had been futile. Id.

at 8 (court’s stating that Appellant’s “juvenile remarks in the [pre-sentence

report] tell me … we tried. You failed.”). Finally, the court cited the pre-

sentence report, which stated that, “[t]here is nothing positive to note about

this individual.”   Id. (quoting the pre-sentence report).         The court

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commented to Appellant, “You are 21 years old and that’s what’s being

written about you.”    Id.   Based on the information contained in the pre-

sentence report and presented at the hearing, the court imposed a

maximum sentence of 30 years’ imprisonment. Id.

      We ascertain no abuse of discretion in that decision.         The record

demonstrates that the court sufficiently considered the statutory factors set

forth in 42 Pa.C.S. § 9721(b), and was fully informed of Appellant’s prior

criminal   record,    age,   personal   characteristics,   and   potential   for

rehabilitation. While the maximum sentence the court imposed is certainly

lengthy, it is not excessive in light of the seriousness of Appellant’s offense,

the danger he poses to the community, and his failure to stop his criminal

conduct after being exposed to the criminal justice system as a juvenile.

Accordingly, we agree with Attorney Brunnabend that Appellant’s sentencing

issue is frivolous, despite reaching that conclusion on a different basis than

that expressed by counsel.

      We have also independently reviewed the record and agree with

Attorney Brunnabend that there are no other non-frivolous claims that

Appellant could assert on appeal.        Accordingly, we affirm Appellant’s

judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed.          Petition to withdraw granted.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




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