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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
FONTAIN S. WILSON, : No. 1878 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, September 20, 2016,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0004535-2015
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 03, 2017
Fontain S. Wilson appeals from the September 20, 2016 judgment of
sentence entered in the Court of Common Pleas of Dauphin County following
his conviction in a bench trial of one count of criminal use of a
communication facility, two counts of delivery of a controlled substance, one
count of possession with intent to deliver, and one count of possession of
drug paraphernalia.1 The trial court imposed an aggregate sentence of
2-4 years of incarceration, followed by 1 year of probation. Assistant Public
Defender Erin L. Hayes has filed a petition to withdraw, alleging that the
appeal is frivolous, and an Anders brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
1 18 Pa.C.S.A. § 7512(a), 35 P.S. § 780-113(a)(30), and 35 P.S.
§ 780-113(a)(32), respectively.
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2009). After careful review, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
The trial court set forth the following factual history:
Appellant was the subject of a drug dealing
investigation by the Harrisburg Police Department’s
Vice Unit. Det. Donald Heffner utilized a confidential
informant (CI) who was working for consideration for
his wife to purchase drugs from a dealer known as
“Vonday” on May 28, 2015. The CI called
[XXX-XXX-XXXX], spoke with someone named
Vonday and set up a $40 drug deal. They were told
to meet in the area of 14th and Market Streets and
that Vonday, a black male, would be in a car. The CI
was searched, the money was photographed and the
CI was dropped off in the area. The CI entered into
a blue Buick with the license plate [XXXXXXX]
occupied by one person. The car was parked on
Market Street facing west between 14th and
13th Streets. After the CI entered the vehicle, the
driver drove around the block and then dropped the
CI off near 14th and Market Streets. The CI
immediately returned to Det. Heffner, and provided
him with two bags [of] crack cocaine.
Per department procedures, Det. Heffner had
searched the CI prior to dropping him off. He
searched all clothing, pockets, waistband, socks, and
shoes and did not find anything. He did not search
inside the shoes or underwear. He did not lose sight
of the CI at all during the buy. The CI never made
contact with anyone else. Following the buy,
Det. Heffner searched the CI again and found
nothing.
The drugs themselves were packaged in
“little tiny” Ziploc bags; this style of packaging used
to be popular but now is a unique form of packaging
drugs.
On June 2, 2015, Det. Heffner and the same CI
met again to set up another drug deal. They utilized
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the same phone number to call Vonday; Heffner
searched the CI; provided photographed money to
the CI and eventually dropped the CI off in the same
general area as before. The CI again entered a blue
Buick with the license plate [XXXXXXX] which drove
around the block. The CI returned with three bags
of crack cocaine which were packaged in the same
way as before.
On June 4, 2015, Det. Heffner utilized the CI to
set up a buy-bust of Vonday utilizing the Street
Crimes Unit. The CI called Vonday to set up another
buy of three bags of cocaine, the blue Buick with the
license plate [XXXXXXX] arrived at the agreed upon
location. The CI identified the driver as Vonday.
Det. Heffner radioed to the Street Crimes Unit to
stop the vehicle and take the driver into custody
which they did.
The police found three bags of cocaine that
matched the previously purchased bags as well as a
phone with the target phone number on his person.
Officer Fustine specifically found an envelope with
suspected crack cocaine.
Det. Heffner verbally gave [a]ppellant his
Miranda[2] rights and [a]ppellant was very
cooperative. Det. Heffner informed [appellant] that
they had been buying cocaine [from] him and
[appellant] admitted he was selling drugs to pay his
bills and his probation fines and costs. Det. Heffner
said he knew that [a]ppellant lived in the area and
asked if there was any cocaine in his home.
[Appellant] responded with his address and gave
consent for them to search it. Appellant escorted
them into his residence and showed them a plate
underneath his dresser with cocaine, small Ziploc
baggies and a little piece of cardboard to scrape the
cocaine. [Appellant] also told them where to find
$130 cash in his home, although none of the marked
cash from the previous buys was present.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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The blue Buick is registered to Nathaniel
Rafferty.
Trial court opinion, 3/7/17 at 2-4 (citations to notes of testimony omitted).
The trial court summarized the procedural history, as follows:
Appellant was arrested and charged with
criminal use of a communication facility, 2 counts of
delivery of a controlled substance, possession with
intent to deliver, and possession of drug
paraphernalia.
A bench trial was scheduled though testimony
was bifurcated as Officer Fustine was unavailable to
testify on August 18, 2016. The trial was continued
to September 20, 2016 and [a]ppellant was found
guilty and sentenced that day as follows:
Count 1: 1-2 years SCI
Count 2: 1-2 years SCI
Count 3: 1-2 years SCI
Count 4: 1-2 years SCI
Count 5: one year of state supervision
Counts 1, 3, and 5 ran concurrent with one
another and Counts 2 and 4 ran consecutive to one
another for an aggregate of 2-4 years of
incarceration. He was made RRRI eligible at
18 months and was given time credit from June 4,
2015 to September 20, 2016.
A post-sentence motion was denied on
October 18, 2016, and this Court received a timely
Notice of Appeal. On November 14, 2016, we issued
an order for a statement of errors [complained of on
appeal pursuant to Pa.R.A.P. 1925(b)] and said
statement was filed November 30, 2016. On
January 17, 2017, we received an order from the
Superior Court of Pennsylvania [that] indicated that
the appeal was dismissed for failure to comply with
the Rules of Appellate Procedure. On January 30,
2017, we received another order [from] the Superior
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Court of Pennsylvania indicating that the prior order
was vacated and the appeal reinstated.
Trial court opinion, 3/7/17 at 1-2 (footnotes omitted).
The record reflects that the trial court then filed its Pa.R.A.P. 1925(a)
opinion on March 7, 2017.
Appellant raises the following issue for our review:
Whether the trial court abused its discretion in
running [a]ppellant’s sentences consecutively
resulting in an aggregate sentence of two (2) to
four (4) years of incarceration followed by a year of
state-supervised probation?
Appellant’s brief at 5 (underscoring omitted).
Assistant Public Defender Erin L. Hayes filed in this court a petition to
withdraw alleging the appeal is frivolous and an Anders brief.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
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examination of the record,
counsel finds the appeal to
be wholly frivolous. Counsel
must also file an Anders
brief setting forth issues that
might arguably support the
appeal along with any other
issues necessary for the
effective appellate
presentation thereof.
Anders counsel must also
provide a copy of the Anders
brief and petition to the
appellant, advising the
appellant of the right to
retain new counsel, proceed
pro se or raise additional
points worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements
as to the precise content of
an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to
withdraw ... 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
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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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “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 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Hayes’s petition to withdraw, supporting
documentation, and Anders brief reveals that she has substantially
complied with all of the foregoing requirements, which is sufficient. See
Commonwealth v. Reid, 117 A.3d 777, 781 (Pa.Super. 2015) (finding that
“[s]ubstantial compliance with [Anders] requirements is sufficient.”).
Attorney Hayes simultaneously furnished a copy of the Anders brief to
appellant and advised him of his right to retain new counsel, proceed
pro se, and/or raise any additional points that he deems worthy of this
court’s attention. Attorney Hayes attached a copy of that letter to the
Anders brief that she filed with this court on April 18, 2017. Although that
letter, dated April 18, 2017, states that Attorney Hayes filed a petition to
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withdraw with this court, she did not do so until June 27, 2017. In the
petition to withdraw, Attorney Hayes averred that, after a conscientious
examination of the record, she concluded the appeal to be wholly frivolous.
Attorney Hayes certified in the petition to withdraw that she had previously
notified appellant of his rights when she furnished him with a copy of the
Anders brief and attached the letter to the brief. Additionally,
Attorney Hayes furnished appellant with a copy of the petition to withdraw.
Appellant has not filed a response to the Anders brief or the petition to
withdraw. Therefore, as Attorney Hayes has substantially complied with all
of the requirements set forth above, we conclude that counsel has satisfied
the procedural requirements of Anders.
Once counsel has met her 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. We now
turn to the merits of appellant’s appeal.
Here, appellant complains that the trial court abused its discretion
when it imposed consecutive sentences on two counts, as opposed to
running the sentences on those two counts concurrently. (Appellant’s brief
at 5.) In his brief, appellant further contends that the trial court imposed an
excessive sentence in light of appellant’s rehabilitative needs and what is
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necessary to protect the public. (Id. at 12-13.) Therefore, appellant
challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
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. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation
omitted; brackets in original).
Here, appellant filed a timely notice of appeal and included a
Pa.R.A.P. 2119(f) statement in his brief. In his motion to modify sentence,
appellant requested that the trial court “modify his sentence so that all
counts run concurrent to one another.” (Appellant’s post-sentence motion to
modify sentence, 9/29/16 at 2, ¶ 6.) In the argument section of his brief,
however, appellant contends that the trial court abused its discretion by
imposing an excessive sentence in light of appellant’s rehabilitative needs
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and that which is necessary to protect the public. (Appellant’s brief at
12-13.) Because appellant did not give the trial court the opportunity to
reconsider or modify his sentence on the basis that the sentence was
excessive in light of appellant’s rehabilitative needs and that which is
necessary to protect the public, appellant failed to properly preserve this
specific discretionary sentencing challenge for appeal. See Commonwealth
v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating issues that challenge
discretionary aspects of sentencing are generally waived if they are not
raised during sentencing proceedings or in post-sentence motion); accord
Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012). See
also Commonwealth v. Reeves, 778 A.2d 691, 692-693 (Pa.Super. 2001)
(finding waiver where appellant “did not give the sentencing judge an
opportunity to reconsider or modify sentence” on any of the bases that
appellant currently argues on appeal); Pa.R.A.P. 302(a) (“[i]ssues not raised
in the lower court are waived and cannot be raised for the first time on
appeal”).
Nevertheless, we will address this challenge because appointed
counsel has filed an Anders brief and a petition to withdraw. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (addressing
the appellant’s discretionary sentencing challenge in light of counsel’s
petition to withdraw, despite the fact that his Pa.R.A.P. 2119(f) statement
failed to cite what particular provision of the Sentencing Code or what
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specific fundamental norm the appellant’s sentence allegedly violated), citing
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001)
(concluding that Anders requires review of issues otherwise waived on
appeal).
We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333, 338
(Pa.Super. 2015) (citation omitted). “A substantial question exists only
when an appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Id. (citation omitted).
In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Rather, we look
to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide
the merits of whether the sentence is clearly
unreasonable.
Id. at 340 (citation omitted). This court has held that an appellant’s
“challenge to the imposition of his consecutive sentences as unduly
excessive, together with his claim that the court failed to consider his
rehabilitative needs and mitigating factors upon fashioning its sentence,
presents a substantial question” for review. Id. at 340. We, therefore,
proceed to the merits of appellant’s sentencing challenge.
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The matter of sentencing is vested within the sound
discretion of the trial court; we only reverse the
court’s determination upon an abuse of discretion.
To demonstrate that the trial court has abused its
discretion, 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.
Moreover, 42 Pa.C.S.A. § 9721(b) provides that the
trial court must disclose, on the record, its reasons
for imposing the sentence.
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)
(citations and internal quotation marks omitted).
Here, appellant’s sentence fell within the sentencing guidelines. At
Count 1 (criminal use of communication facility), appellant faced a
statutorily authorized sentence of up to 7 years of incarceration. See
18 Pa.C.S.A. § 7512(b). On that count, the trial court sentenced appellant
to 1-2 years of incarceration to run concurrent with Count 2. As to the
controlled-substance violations at Counts 2, 3, and 4, appellant faced a
statutorily authorized sentence of up to 10 years’ imprisonment on each
count. See 35 P.S. 780-113(f)(1.1). The trial court sentenced appellant to
1-2 years of imprisonment on each count with Count 4 to run consecutive to
Count 2. As to the drug paraphernalia violation at Count 5, appellant faced
up to 1 year of incarceration. The trial court sentenced appellant to 1 year
of probation on that count. Therefore, although appellant faced 38 years of
imprisonment, the trial court imposed 2-4 years of incarceration noting that
“[t]he punitive measures could not have been accomplished with a lesser
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sentence.”3 (Trial court opinion, 3/7/17 at 5.) We discern no abuse of
discretion.
Moreover, our independent review of the entire record has not
disclosed any potentially non-frivolous issues. Therefore, we grant counsel’s
petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2017
3 The record reflects that appellant received approximately 15 months of
credit for time served and the trial court made him RRRI eligible at
18 months.
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