J-S90012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CARL GAITHER                               :
                                               :
                      Appellant                :   No. 1218 EDA 2016

           Appeal from the Judgment of Sentence January 20, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0002204-2015,
                           CP-09-CR-0005166-2015



BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 13, 2017

        Carl Gaither appeals from the judgment of sentence imposed on

January 20, 2016, in the Court of Common Pleas of Bucks County following

his guilty pleas in two cases. He received an aggregate sentence of seven to

14 years’ incarceration followed by eight years of probation. In this timely

appeal, Gaither challenges the discretionary aspect of his sentence. Defense

counsel has filed an Anders1 brief, thereby indicating the appeal is frivolous.

He has also filed a motion to withdraw as counsel. After a thorough review

of the submissions by the parties, including Gaither’s response to counsel’s



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1
  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
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Anders brief, relevant law, and the certified record, we affirm judgment of

sentence and grant counsel’s motion to withdraw.

        The facts underlying the two cases against Gaither are diverse.        In

criminal information 2204 of 2015, Gaither committed a burglary at D & S

Boat Sales, Tullytown, Bucks County, by entering the store after hours and

stealing a power washer.         Pursuant to this incident, Gaither pled guilty to

one count of burglary and one count of theft.2                Regarding criminal

information 5166 of 2015, beginning in November 2014, and continuing for

months thereafter, Gaither made a series of telephone calls to 16 different

women who worked in various capacities in the Bucks County Department of

Corrections, SCI3 Houtzdale and SCI Camp Hill.4         As described by the trial

court in the Pa.R.A.P. 1925(a) opinion, these telephone calls were

        lewd, lascivious, unwanted, sexually explicit in nature and
        contained numerous obscene words and described graphic
        sexual acts. At times the caller made threats of sexual violence
        and assault. The male caller, who appeared to be familiar with
        the employees, would either call and ask for a particular female
        employee or would dial their extension directly. These repeated
        calls caused multiple victims to endure significant emotional
        distress and many had fear for their personal safety.



____________________________________________


2
    18 Pa.C.S. §§ 3502(a)(4) and 3921(a), respectively.
3
    State Correctional Institution.
4
 The affidavit of probable cause also lists additional telephone calls made to
SCI Coal Township and a Bucks County auto body shop.



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Trial Court Opinion, 6/10/2016, at 2.            The trial court also noted Gaither

made in excess of 350 phone calls to the victims. The certified record also

reveals that Gaither had previously been incarcerated at both SCI Camp Hill

and SCI Houtzdale.        Pursuant to these incidents, Gaither pled guilty to 16

counts of stalking.5

        As noted above, Gaither received an aggregate sentence of seven to

14 years’ incarceration followed by eight years of probation.          Specifically,

Gaither received two to four years’ incarceration for stalking counts one

through six; two to four years’ incarceration for stalking counts seven

through 12; two to four years’ incarceration for stalking counts 13-16; and

one to two years’ incarceration followed by eight years of probation for

burglary.     Gaither filed a motion for reconsideration of sentence, but

withdrew it at the hearing on the motion. This timely appeal follows.

        When presented with an Anders brief, this Court may not review
        the merits of the underlying issues without first passing on the
        request to withdraw. Before counsel is permitted to withdraw, he
        or she must meet the following requirements:

           First, counsel must petition the court for leave to withdraw
           and state that after making a conscientious examination of
           the record, he has determined that the appeal is frivolous;
           second, he must file a brief referring to any issues in the
           record of arguable merit; and third, he must furnish a copy
           of the brief to the defendant and advise him of his right to
           retain new counsel or to himself raise any additional points
           he deems worthy of the Superior Court's attention.

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5
    18 Pa.C.S. § 2709.1(a)(2).



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Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super.

2016) (citations omitted).

       Our review of the Anders brief demonstrates counsel has complied

with these requirements.6          Gaither has filed a handwritten response to

counsel’s Anders brief, which we have reviewed.             Having fulfilled the

Anders requirements, we grant counsel’s motion to withdraw.

       Gaither’s sole issue represents a challenge to the discretionary aspects

of his sentence.        Specifically, Gaither claims the trial court failed to

adequately consider and address his mental health issues in sentencing.

Regarding a challenge to the discretionary aspects of a sentencing, case law

dictates:

       A challenge to the discretionary aspects of sentencing does not
       entitle an appellant to review as of right. Commonwealth v.
       Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). An appellant
       challenging the discretionary aspects of his sentence must
       invoke this Court's jurisdiction by satisfying a four-part test: (1)
       whether appellant has filed a timely notice of appeal, see
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6
  However, we note other deficiencies in the brief. While these do not
ultimately impair our ability to review this matter, they are of concern. First,
counsel failed to attach the Pa.R.A.P. 1925(b), statement of matter
complained of, to the brief. See Pa.R.A.P. 2111(d). The 1925(b) statement
was easily located in the certified record, so we are at no disadvantage.
More importantly, counsel has failed to comply with the requirements of
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which dictates
counsel explain why the appeal is frivolous. While this is a serious failing,
this matter presents a rare instance where the sole issue raised is so
obviously and patently frivolous, it would be a waste of judicial time and
economy to remand for the filing of a proper Anders brief. We direct
counsel, in the future, to be more mindful of the Rules of Appellate
Procedure and to follow the dictates of Santiago.



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       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. Evans, 901 A.2d 528, 533 (Pa. Super.
       2006).

       Although counsel has not included the requisite Pa.R.A.P.
       2119(f) statement in his Anders brief herein, “[w]here counsel
       files an Anders brief, this Court has reviewed the matter even
       absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do
       not consider counsel's failure to submit a Rule 2119(f) statement
       as precluding review of whether Appellant's issue is frivolous.”
       Commonwealth v. Ziegler, 112 A.3d 656, 661 (Pa. Super.
       2015) (citations omitted).[7] In addition, a determination of what
       constitutes a substantial question must be evaluated on a case-
       by-case basis and such question exists only when an appellant
       advances a colorable argument that the sentencing judge's
       actions were either inconsistent with a specific provision of the
       Sentencing Code or contrary to the fundamental norms
       underlying the sentencing process. Commonwealth v. Prisk,
       13 A.3d 526, 533 (Pa. Super. 2011).

Commonwealth v. Bynum-Hamilton, supra, at 184 (footnote omitted).

       Here, the claim is frivolous in that Gaither failed to preserve the issue

by   filing   a   post-sentence     motion.      Gaither   did   file   a   motion   for

reconsideration of sentence, but withdrew it prior to its resolution. Indeed,

in the notes of testimony of March 7, 2016, the hearing at which Gaither

withdrew his motion for reconsideration, Gaither acknowledged he was
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7
  While the Commonwealth has argued the sentencing issue was waived by
withdrawing the motion for reconsideration, it has also claimed the issue has
been waived for failure to file a Pa.R.A.P. 2119(f) statement. Pursuant to
Bynum-Hamilton, and other cases, the failure to provide a 2119(f)
statement with an Anders brief will not result in waiver.



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giving up his right to challenge his sentence.     At that time, the trial court

was informed that Gaither had other issues of ineffective assistance of

counsel he believed needed to be addressed.8 The trial court explained such

matters could be raised in a Post Conviction Relief Act (PCRA) petition.

Based on the foregoing, Gaither is not entitled to relief.

       Judgment of sentence affirmed. Motion to withdraw is granted.

       Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




____________________________________________


8
  Gaither’s response to counsel’s petition to withdraw and Anders brief
raises issues of ineffective assistance of counsel.




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