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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
YUSEF KEMP,
Appellant No. 1768 EDA 2015
Appeal from the Judgment of Sentence of April 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007549-2013
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 17, 2016
Appellant, Yusef Kemp, appeals from the judgment of sentence
entered on April 29, 2015, as made final by the denial of Appellant’s post-
sentence motion on May 11, 2015. On this direct appeal, Appellant’s court-
appointed counsel has filed both a petition to withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 We conclude
that Appellant’s counsel has complied with the procedural requirements
necessary to affect withdrawal. Moreover, after independently reviewing the
record, we conclude that the instant appeal is wholly frivolous. We,
____________________________________________
1
See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
*Retired Senior Judge assigned to the Superior Court.
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therefore, grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
The trial court ably summarized the underlying facts and procedural
posture of this appeal. As the trial court explained:
[Appellant] admitted to the following facts during the guilty
plea [hearing]:
On December 5[], 2012, at approximately 9:44 p.m.
near 1901 North 27th Street in Philadelphia, which is the
Johnson Homes Housing Project[,] the facts establish
[that Appellant] shot and killed Renard Rushin Wright.
At the time[,] Renard Wright was 20 years old.
There was a call to 911 made that night by Neva Fairy[,]
who lives in Unit H of the Johnson Homes Projects. At
that time police officers responded. They found Mr.
Rushin Wright in the home of Ms. Fairy. At that point
officers took him to the hospital and upon his arrival at
the hospital he was pronounced dead.
Crime scene officers responded to the scene, recovered
several .380 caliber fired cartridge casings in a
breezeway near Unit H. They photographed the scene.
...
Homicide detectives were assigned to investigate this
case. On December 5[], 2012, a statement was taken
from Ms. [Fairy]. . . . She [stated that] she knew the
decedent[. Ms. Fairy stated that the decedent] came
into her house, that he said he had been shot, that he
believed he was going to die, and she said she also
called 911. . . .
In her statement of December 5, 2012, [Ms. Fairy said
that] she asked the decedent who it was who shot him
and he said he didn’t know.
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Subsequently[,] . . . on February 11[], 2013, Ms. Fairy
was re-interviewed by homicide detectives. At that
point[,] she said that her initial statement was correct
and truthful except for the part that she says when she
asked [the decedent] who it was that shot him that he
responded “Yusef shot me” and that her daughter was
present when this happened.
Detective asked her why she was not forthcoming with
this information in December and she said [] she knew
she would have to testify and she was really scared.
She also said, [] “I’m really scared[.] I have young kids
and I live right here in these homes and everybody
knows everyone else’s business and I know what these
people are capable of.”
. . . [Ms. Fairy] also knew [Appellant] for several years.
Walter Ross was interviewed on December 7[], 2012.
Walter Ross gave a statement in which he said that he
was with [the decedent] that night, that he heard the
shooting, but that he . . . was not present for the
shooting. . . .
Walter Ross was re-interviewed on February 15[,] 2013,
and . . . he acknowledged to detectives that his prior
statement from December was not entirely truthful,
especially with regards to his presence [during] the
shooting of [the decedent. In his February statement,
Walter Ross told detectives:] “When I come out of
Neva[’s] house, that’s when I run into Renard. He was
walking up to Neva’s door. He yelled over to me, I
turned around and we start talking and shit and I was
telling boy where I was going. I was telling him I’m
going back to Nadira’s house. As I’m talking to him, I
see Yusef come up behind Renard and he puts this gun
up and he points it right at us and he starts shooting.”
Mr. Ross was asked why he was not entirely honest in
his December statement. He told the detectives, []
“Because I’ve been scared to telling anyone because
people run their mouth. I heard right away that people
knew who killed Renard, so that was another reason
why I didn’t say anything. I knew they knew who did it,
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so I knew if I said something that it would come back on
me.”
Mr. Ross also knew [Appellant] for several years by face
and name from the Johnson Homes Projects.
A witness was interviewed on February 28th by the name
of Shika Gibson. She gave a statement . . . and in
summary it says that she saw [Appellant] shoot [the
decedent] at the location that we have described.
A witness named Donna Hunter was interviewed on
December 19[], 2012. Ms. Hunter told Philadelphia
homicide detectives that she lives in Unit K of the
Johnson Homes Projects, that she saw [Appellant] who
she knows run past her apartment carrying a gun after
she had heard shots. Ms. Hunter refused to sign her
statement. . . .
Jalil Harris was also interviewed and he [said] that
Donna Hunter told him the same thing that she told the
police, that she saw [Appellant] run by her house
carrying a gun.
The remains of [the decedent] were taken to the Medical
Examiner’s Office where an autopsy was conducted. . . .
[The Medical Examiner] found . . . a perforating gunshot
wound to the front of [the decedent’s] abdomen and a
penetrating gunshot wound to the rear of [the
decedent’s] abdomen. A [] .380 bullet was recovered
from the body of [the decedent]. . . .
These gunshot wounds lacerated [the decedent’s] liver
and caused other injuries, including injuries to his
kidneys, and it would be the opinion of [the Medical
Examiner] that the cause of death was a gunshot wound
to the abdomen and the manner of death was homicide.
...
[Appellant] was ineligible to possess a firearm at the
time of this incident.
...
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On March 9, 2014, [Appellant] was arrested and charged
with murder, firearms not to be carried without a license,
possession of [a firearm by a prohibited person], carrying
firearms in a public place in Philadelphia, and possession of
an instrument of crime (“PIC”).[2]
On February 9, 2015, [Appellant] appeared before th[e
trial] court and entered [] an open guilty plea to the
charges of third-degree murder, firearms not to be carried
without a license, possession of [a firearm by a prohibited
person], and PIC. . . .[fn.1]
[fn.1] The charge of carrying firearms in a public place
in Philadelphia was nolle prossed.
On April 20, 2015, [the trial] court sentenced [Appellant] to
[serve 20 to 45 years in prison for his third-degree murder
conviction and to serve a consecutive, aggregate term of
two-and-a-half to five years in prison for his remaining
convictions]. . . .
After [the trial court] realized it had imposed an illegal
maximum sentence on the third-degree murder
[conviction], th[e trial] court immediately informed both
defense counsel and the Commonwealth. On April 29,
2015, [Appellant] filed a Motion to Vacate Illegal Sentence
and Impose a Legal Sentence. That same day, th[e trial]
court granted [Appellant’s] motion and re-sentenced him to
[serve 20 to 40 years in prison for the third-degree murder
conviction and to serve a consecutive, aggregate sentence
of two-and-a-half to ten years in prison for the remaining
convictions. As Appellant acknowledges in his brief to the
Pennsylvania Superior Court, all of Appellant’s sentences
either fell within the “standard” or the “mitigated”
sentencing ranges. Appellant’s Brief at 14].
____________________________________________
2
18 Pa.C.S.A. §§ 2502, 6106(a)(1), 6105(a)(1), 6108(1), and 907(a),
respectively.
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On May 8, 2015, [Appellant] filed a timely post-sentence
motion, requesting that [the trial court] reconsider his
sentence. [Specifically, Appellant claimed that the trial
court “erred in sentencing [Appellant] by failing to
adequately consider the argument of the defense for a
less[er] sentence.” Appellant’s Post-Sentence Motion,
5/8/15, at 2. The trial court] denied the [post-sentence]
motion on May 11, 2015. On June 9, 2015, [Appellant] filed
a notice of appeal to [the] Superior Court. . . .
Trial Court Opinion, 7/30/15, at 1-5 (some internal capitalization and
corrections omitted), quoting in part N.T. Guilty Plea Hearing, 2/9/15, at 22-
32.
On appeal, Appellant’s court-appointed counsel filed a petition for
leave to withdraw and accompanied this petition with an Anders brief.
Within the Anders brief, Appellant raises the following claim:3
Did the [trial] court commit an abuse of discretion [at
sentencing] by not considering Appellant’s arguments for a
lesser sentence and imposing an excessive sentence?
Appellant’s Brief at 11.
Before reviewing the merits of this appeal, this Court must first
determine whether counsel fulfilled the necessary procedural requirements
for withdrawing as counsel. Commonwealth v. Miller, 715 A.2d 1203,
1207 (Pa. Super. 1998).
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3
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). In accordance with Pa.R.A.P. 1925(c)(4), Appellant’s
court-appointed counsel filed a “statement of intent to file an
Anders/McClendon brief in lieu of filing a [Pa.R.A.P. 1925(b) s]tatement.”
Pa.R.A.P. 1925(c)(4).
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To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “petition the court for
leave to withdraw stating that, after making a conscientious examination of
the record, counsel has determined that the appeal would be frivolous.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in
which counsel:
(1) provide[s] a summary of the procedural history and
facts, with citations to the record; (2) refer[s] to anything in
the record that counsel believes arguably supports the
appeal; (3) set[s] forth counsel’s conclusion that the appeal
is frivolous; and (4) state[s] 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.
Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and advise the client “of [the client’s] right to retain new counsel, proceed
pro se or raise any additional points worthy of this Court’s attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above 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, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
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substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel met all of the above procedural obligations.
We must, therefore, review the record and analyze whether this appeal is, in
fact, wholly frivolous. Our analysis begins with the issue raised in the
Anders brief.
Appellant claims that the trial court abused its discretion at sentencing
by failing to consider his mitigating evidence. Appellant’s Brief at 12. We
cannot review Appellant’s claim.
Appellant’s challenge is to the discretionary aspects of his sentence.
“[S]entencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
Moreover, pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, 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
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not appropriate under the Sentencing Code, [42 Pa.C.S.A.]
§ 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant satisfied the first three requirements, as
he filed a timely notice of appeal, properly preserved his discretionary
challenge in a post-sentence motion, and facially complied with Pennsylvania
Rule of Appellate Procedure 2119(f). We must now determine whether
Appellant presented a “substantial question that the sentence appealed from
is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.
Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge’s actions were: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.”
Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);
Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en
banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining
whether an appellant has raised a substantial question, we must limit our
review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.
This limitation ensures that our inquiry remains “focus[ed] 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 727
(internal emphasis omitted).
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In his brief to this Court, Appellant acknowledges that all of his
sentences fall either within the “standard” or the “mitigated” sentencing
ranges. Appellant’s Brief at 14. Yet, as Appellant claims, his aggregate
sentence of 22 ½ to 50 years in prison was manifestly excessive because the
trial court “did not consider” such mitigating evidence as: the “numerous
letters . . . that described [A]ppellant as a good person who was loved and
respected by his family and neighbors;” the information Appellant provided
detectives regarding an unrelated homicide; and, Appellant’s decision to
plead guilty. Id. at 12.
Appellant’s claim does not raise a substantial question under the
Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.
Super. 2003) (“an allegation that the sentencing court did not consider
certain mitigating factors does not raise a substantial question”); see
Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n
allegation that the sentencing court ‘failed to consider’ or ‘did not adequately
consider’ various factors does not raise a substantial question that the
sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also
Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a
claim that the trial court “erred by imposing an aggravated range sentence
without consideration of mitigating circumstances raises a substantial
question”) (emphasis added). Therefore, we may not reach the merits of
Appellant’s claim.
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We have independently considered the issue raised within Appellant’s
brief and have determined that it is frivolous. In addition, after an
independent review of the entire record, we see nothing that might arguably
support this appeal. The appeal is therefore wholly frivolous. Accordingly,
we affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw appearance.
Petition to withdraw appearance granted. Judgment of sentence
affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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