J-S09032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JUAN JOSE GONZALES,

                            Appellant                     No. 1292 WDA 2014



        Appeals from the Judgment of Sentence entered April 24, 2013,
              in the Court of Common Pleas of Venango County,
            Criminal Division, at No(s): CP-61-CR-0000289-2011

BEFORE: FORD ELLIOTT, P.J.E., BOWES and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                              FILED FEBRUARY 11, 2015

        Juan Jose Gonzales (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of two counts of unlawful

contact with a minor, one count of endangering the welfare of children, two

counts of corruption of minors, and two counts of indecent exposure.1

Appellant’s    appointed     counsel    seeks   to   withdraw,   citing   Anders   v.

California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981).          We affirm the judgment of sentence and grant

counsel’s petition to withdraw.

        The facts are as follows: On February 28, 2011, Sergeant Steven E.

Hamilton of the Oil City Police Department received a report from the
____________________________________________


1
    18 Pa.C.S.A. §§ 6318, 3304(a), 6301(a) and 3127(a).
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Venango County Children and Youth Services that Appellant, on several

occasions, exposed himself and/or inappropriately touched his girlfriend’s

minor daughters.     Affidavit of Probable Cause, 3/9/11.       Appellant was

subsequently arrested and charged with rape of a child, involuntary deviate

sexual intercourse, two counts of unlawful contact with a minor, one count of

indecent assault, one count of endangering the welfare of children, three

counts of corruption of minors and three counts of indecent exposure.

      A jury trial commenced on October 14, 2011, at the conclusion of

which the jury found Appellant guilty of two counts of unlawful contact with

a minor, one count of endangering the welfare of children, two counts of

corruption of minors, and two counts of indecent exposure.       The jury was

deadlocked on the remaining counts, and the trial court declared a mistrial.

By order dated August 28, 2012, the remaining counts were nolle prossed.

      Following a sentencing hearing on April 24, 2013, the trial court

sentenced Appellant to an aggregate term of imprisonment of 9½ to 24

years. Appellant filed a motion for reconsideration on May 6, 2013, which

the trial court denied on May 7, 2013. Appellant filed a notice of appeal on

June 7, 2013, and on September 27, 2013, this Court quashed the appeal

for Appellant’s failure to file the appeal within thirty days from the judgment

of sentence.

      On February 25, 2014, Appellant filed a pro se petition for post-

conviction relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46, seeking reinstatement of his direct appeal rights. The

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PCRA court appointed new counsel, who filed an amended PCRA petition on

April 22, 2014.         Following a hearing on July 3, 2014, the trial court

reinstated Appellant’s direct appeal rights nunc pro tunc. Appellant filed a

notice of appeal on July 31, 2014, and the trial court directed Appellant to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal

by September 25, 2014. On September 23, 2014, Appellant’s counsel filed a

notice    of   intent   to   file   an   Anders/McClendon      brief   pursuant   to

Pa.R.A.P.1925(c). On September 26, 2014, the trial court entered an order

explaining that in light of counsel’s statement of intent to file an

Anders/McClendon brief, it would not submit a Pa.R.A.P. 1925(a) opinion.

     Appellant presents the following issues for our review:

     I.        WHETHER PRIOR COUNSEL WAS INEFFECTIVE FOR
               FAILING TO HAVE THE APPELLANT TESTIFY ON HIS OWN
               BEHA[LF] DURING TRIAL?

     II.       WHETHER THE SENTENCE IMPOSED BY THE [TRIAL]
               COURT WAS EXCESSIVE IN LIGHT OF THE CHARGES?

     III.      WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
               SUFFICIENT TO SUSTAIN THE JURY’S GUILTY VERDICTS?

Anders Brief at 5.

     Appellant’s counsel has filed a brief pursuant to Anders and its

Pennsylvania counterpart, McClendon.               See Anders, 386 U.S. 738;

McClendon, 434 A.2d at 1187.             Where an Anders/McClendon brief has

been presented, our standard of review requires counsel seeking permission

to withdraw pursuant to Anders to:              (1) petition the court for leave to



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withdraw stating that after making a conscientious examination of the record

it has been determined that the appeal would be frivolous; (2) file a brief

referring to anything that might arguably support the appeal, but which does

not resemble a “no merit” letter or amicus curiae brief; and (3) furnish a

copy of the brief to the defendant and advise him of his right to retain new

counsel or raise any additional points that he deems worthy of the court's

attention.   Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super.

2008). Counsel is required to submit to this Court “a copy of any letter used

by counsel to advise the appellant of the rights associated with the Anders

process.”    Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super.

2007). Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009), appellant’s counsel must state in the Anders brief the reasons for

concluding that the appeal is frivolous. If these requirements are met, this

Court may then review the record to determine whether we agree with

counsel’s assessment that the appeal is frivolous.

      In the instant case, by letter dated October 24, 2014, Appellant’s

counsel notified Appellant of his intent to file an Anders brief and petition to

withdraw with this Court, and informed Appellant of his rights to retain new

counsel and raise additional issues.     On November 3, 2014, Appellant’s

counsel filed an appropriate petition seeking leave to withdraw.        Finally,

Appellant’s counsel has submitted an Anders brief to this Court, with a copy

provided to Appellant.   Accordingly, the technical requirements of Anders

have been met. We will therefore conduct our own independent examination

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of the issues set forth in the Anders brief to determine if they are frivolous

and whether counsel should be permitted to withdraw.

      In his first issue, Appellant argues that his trial counsel was ineffective

for failing to have Appellant testify on his own behalf during trial.          In

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

reaffirmed its holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002), that, in general, claims of ineffective assistance of counsel should be

deferred to collateral review under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. § 9541-46. Holmes, 79 A.3d at 576. The limited and specific

circumstances under which ineffectiveness claims may be addressed on

direct appeal are not present in the instant case. Id. at 577-78 (explaining

that the trial court may address claims of ineffectiveness where they are

“both meritorious and apparent from the record so that immediate

consideration and relief is warranted”, or where the appellant’s request for

review of “prolix” ineffectiveness claims is “accompanied by a knowing,

voluntary, and express waiver of PCRA review”). Appellant must therefore

raise his ineffectiveness claim in a PCRA petition.     Although Appellant had

previously filed a PCRA petition in this case, the trial court granted relief only

insofar as reinstating his direct appeal rights nunc pro tunc, and did not

conduct a hearing on the underlying ineffectiveness claim.           Accordingly,

Appellant’s first issue is without merit, and we deny relief without prejudice

for Appellant to seek relief under the PCRA.


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     Appellant next argues that the sentence imposed by the trial court was

excessive. Anders Brief at 13. A challenge to the discretionary aspects of a

sentence is not appealable as of right. Rather, Appellant must petition for

allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v.

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

           Before we reach the merits of this [issue], we must engage
     in a four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved his issue; (3) whether
     Appellant's brief includes a concise statement of the reasons
     relied upon for allowance of appeal with respect to the
     discretionary aspects of sentence; and (4) whether the concise
     statement raises a substantial question that the sentence is
     appropriate under the sentencing code. The third and fourth of
     these requirements arise because Appellant's attack on his
     sentence is not an appeal as of right. Rather, he must petition
     this Court, in his concise statement of reasons, to grant
     consideration of his appeal on the grounds that there is a
     substantial question. Finally, if the appeal satisfies each of these
     four requirements, we will then proceed to decide the
     substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

     Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal.   Although Appellant failed to include a Pa.R.A.P.

2119(f) statement in his brief, the Commonwealth has not objected to the

omission.   See Commonwealth v. Stewart, 867 A.2d 589 (Pa. Super.

2005) (declining to find waiver of sentencing claim due to lack of Pa.R.A.P.

2119(f) statement where Commonwealth did not object).           Therefore, we




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proceed to determine whether Appellant has raised a substantial question for

our review.

       Appellant argues that the trial court abused its discretion when it

imposed a sentence in the aggravated range of the sentencing guidelines.

Anders Brief at 13. To the extent Appellant argues that the trial court failed

to state sufficient reasons on the record for its aggravated range sentence,

this   claim    presents   a   substantial   question   for   our   review.   See

Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008)

(allegation that court failed to state adequate reasons on the record for

imposing an aggravated range sentence raises a substantial question for our

review).

       In reviewing Appellant's sentencing issue, we are mindful that

“[s]entencing 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.” Commonwealth v. Vega, 850 A.2d 1277, 1281 (Pa.

Super. 2004) (citation omitted). “Moreover, the sentencing court has broad

discretion in choosing the range of permissible confinements which best suits

a particular defendant and the circumstances surrounding his crime.”          Id.

(citations and internal quotation omitted).

       When considering a discretionary aspects of sentencing claim, we

analyze the sentencing court’s decision under an abuse of discretion

standard.      Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super.


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2013).     In conducting this review, we are guided by the statutory

requirements of 42 Pa.C.S.A. § 9781(c) and (d).         Id.     Section 9781(c)

provides that this Court shall vacate a sentence and remand under three

circumstances.    Relevant here is the second circumstance, i.e., whether

Appellant’s sentence is within the sentencing guidelines, “but the case

involves circumstances where the application of the guidelines would be

clearly   unreasonable[.]”   42   Pa.C.S.A.   §   9781(c)(2).      “[T]he   term

‘unreasonable’ generally means a decision that is either irrational or not

guided by sound judgment.    [A] sentence can be defined as unreasonable

either upon review of the four elements contained in § 9781(d) or if the

sentencing court failed to take into account the factors outlined in 42

Pa.C.S.A. § 9721(b).” Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.

Super. 2011), quoting Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).

      Pursuant to 42 Pa.C.S.A. § 9871, we must have regard for the

following statutory factors in our review of the certified record:      (1) the

nature and circumstances of the offense and the history and characteristics

of the defendant, (2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation, (3) the findings upon

which the sentence was based, and (4) the guidelines promulgated by the

commission. 42 Pa.C.S.A. § 9871(d)(1)-(4). Additionally, when evaluating

a challenge to the discretionary aspects of sentence, it is important to




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remember that the sentencing guidelines are purely advisory in nature.

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

      Here, in its sentencing order, the trial court set forth the following

reasons for its aggravated range sentence:


      These sentences are in the aggravated range under the
      sentencing guidelines because of the current number of multiple
      offense convictions, because of the multiple victims, because of
      the young ages of the victims, because of the severe violation of
      trust that occurred in this case, because of the extended period
      of time over which these offenses were committed, because
      [Appellant] has committed these types of crimes before and
      poses a serious and continuing threat to children, and because of
      the long term effects of [Appellant’s] conduct upon these young
      victims.


      The court determines that any lesser sentence would depreciate
      the seriousness of these crimes.

      The court believes that [Appellant] can benefit from the sex
      offender programming available in the State Correctional System
      in the Commonwealth of Pennsylvania.

Trial Court Sentencing Order, 4/24/13, at 5-6.

      Thus, it is apparent that the trial court, which was aware of the

sentencing guidelines, took into account the relevant sentencing factors

including the nature and circumstances of the crimes, the gravity of the

offenses and their impact on the victims and the community, the need for

protection of the public, Appellant’s history and background, and Appellant’s

rehabilitative needs.   Given the foregoing, we conclude that the trial court

provided adequate reasons for the sentence imposed. The trial court did not



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apply the guidelines erroneously, nor do we find that the trial court applied

them unreasonably.      42 Pa.C.S.A. § 9781(c) and (d); Walls, supra.

Appellant's discretionary claim therefore lacks merit.

      In his third issue, Appellant argues that the evidence was insufficient

to support the guilty verdicts. Appellant’s Brief at 16-18.


      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may
      not weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the evidence at trial need not preclude
      every possibility of innocence, and the fact-finder is free to
      resolve any doubts regarding a defendant's guilt unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. When evaluating the credibility and weight of
      the evidence, the fact-finder is free to believe all, part or none of
      the evidence. For purposes of our review under these principles,
      we must review the entire record and consider all of the
      evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).

      At trial, the Commonwealth presented ample testimony from the

victims, who testified in detail about numerous occasions when Appellant

exposed himself, masturbated in front of them, and/or inappropriately

touched them. See N.T., 10/14/11, at 71-140; N.T., 10/17/11, at 9-78. In

addition, the Commonwealth presented the testimony of N.J. and C.S., who

testified that Appellant had exposed himself and/or inappropriately touched

them in the past. N.T, 10/17/11, at 96-133. This testimony, which the jury



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found credible, was sufficient to sustain Appellant’s convictions, and

Appellant’s challenge to the sufficiency of the evidence is meritless.

      Having reviewed the issues contained in the Anders brief, and after

independent and thorough review of the record, we find Appellant’s issues

wholly frivolous.   Accordingly, we grant counsel’s petition to withdraw and

affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2015




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