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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

GERMAN SOTO-MORENO, 

Appellant. : No. 3072 EDA 2018 

Appeal from the Judgment of Sentence Entered, September 12, 2018, 

in the Court of Common Pleas of Chester County, 

Criminal Division at No(s): CP-15-CR-0000423-2017, 

CP-15-CR-0000424-2017. 

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J. 

MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 09, 2019 

German Soto Moreno appeals from the judgment of sentence imposed 

following his conviction of multiple counts of burglary' and related offenses. 

Additionally, Moreno's counsel has filed a petition to withdraw as counsel and 

an accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744 

(1967). We grant counsel's petition, and affirm Moreno's judgment of 

sentence. 

Between August and September of 2016, several burglaries occurred at 

modular or trailer -style residences in Chester County, Pennsylvania, which 

were occupied by low-income, migrant farmworkers of Hispanic descent. In 

' 18 Pa.C.S. § 3502(a)(2). 
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each instance, the burglar entered the premises while the occupants were out 

working in the local mushroom industry, and stole jewelry, religious objects, 

and U.S. currency.2 Police discovered that several of the stolen items had 

been sold to pawn shops in Wilmington, Delaware. Surveillance video from 

one of the pawn shops revealed that Moreno, using a fraudulent U.S. 

permanent resident card,3 pawned the stolen items. During an interview with 

police, Moreno confessed to committing the crimes. 

Police arrested Moreno and charged him with multiple counts of burglary 

at two separate docket numbers. On March 26, 2018, Moreno entered an 

open guilty plea to one count of burglary at docket number CP-15-CR-423- 

2017, and six counts of burglary at docket number CP-15-CR-424-2017.4 All 

of the convictions were graded as first -degree felonies. On June 13, 2018, 

the trial court sentenced Moreno to five to twenty years of imprisonment for 

the single count of burglary at 423-2017. At 424-2017, the trial court 

2 Because of their immigration status, these types of victims generally avoid 

using banking institutions, and sometimes keep large amounts of U.S. 

currency in their residences. 

3 Moreno is a Mexican citizen who is not lawfully in this country. He has been 

deported twice, and each time he has returned illegally back into this country. 

4 At the time of the burglaries, Moreno was serving a term of parole for prior 

residential burglary convictions at four other docket numbers: CR-1158-2015; 

CR-1205-2013; CR-3233-2013; and CR-2743-2013. The trial court revoked 

his parole at those docket numbers, and reinstated probationary sentences on 

his prior convictions. 

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sentenced Moreno to ten to twenty years of imprisonment for each of the six 

counts of burglary, to be served concurrently with each other and 

consecutively to the sentence imposed at 423-2017. 

Moreno filed a motion for reconsideration of sentence, which resulted in 

the reduction of his sentence at 423-2017 to three to twenty years of 

imprisonment. Moreno filed a second motion for reconsideration of sentence, 

which resulted in the further reduction of his sentence at 423-2017 to three 

to six years of imprisonment on September 12, 2018.5 Upon both motions, 

the trial court denied reconsideration of Moreno's sentence imposed at 424- 

2017. Thus, following reconsideration, his aggregate sentence was reduced 

to thirteen to twenty-six years in prison. 

On October 1, 2018, Moreno filed a timely pro se notice of appeal. The 

trial court appointed counsel, who filed another notice of appeal on October 

12, 2018.6 The trial court ordered Moreno to file a Pa.R.A.P. 1925(b) concise 

5 This sentence fell within the standard range of the sentencing guidelines. 

The sentences imposed at 424-2017 were the statutory maximum. 

6 The notice of appeal filed by counsel is deficient insofar as it does not comply 

with Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (decided 

June 1, 2018, and holding that, "in future cases . . . when a single order 

resolves issues arising on more than one lower court docket, separate notices 

of appeal must be filed. The failure to do so will result in quashal of the 

appeal."). Instead, counsel filed a single notice of appeal listing both docket 

numbers. Notwithstanding, the certified record reflects that Moreno filed a 

timely pro se notice of appeal in the trial court at both docket numbers. 

However, those filings are not included in the certified record. Given our 

willingness to construe pro se filings liberally, we will assume for purposes of 

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statement of errors complained of on appeal. In response, counsel filed a 

statement of intent to file an Anders brief. Given that neither counsel nor 

Moreno raised any claim of error before the trial court, the trial court declined 

to file an opinion pursuant to Pa.R.A.P. 1925(a). 

In this Court, counsel filed a petition to withdraw as counsel and an 

accompanying Anders brief. In the Anders brief, counsel raises the following 

issues that might arguably support the appeal: 

1. Did the imposition of an aggregate sentence of thirteen (13) to 

twenty-six (26) years' confinement for seven [b]urglary 

convictions raise a substantial question that the Sentencing 

Code was violated by the sentencing court? 

2. If a substantial question was raised, did the sentencing court 

abuse its discretion? 

Anders Brief at 5 (numbering added). 

"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." Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 

2007) (en banc) (citation omitted). Pursuant to Anders, when counsel 

believes an appeal is frivolous and wishes to withdraw from representation, 

she must do the following: 

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record, counsel has 

determined the appeal would be frivolous; (2) file a brief referring 

this appeal that Moreno's pro se notices of appeal complied with the dictates 

of Walker. See Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. 

Super. 2003). 

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to any issues that might arguably support the appeal, but which 

does not resemble a no -merit letter; and (3) furnish a copy of the 

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

counsel, proceed pro se, or raise any additional points he deems 

worthy of this Court's attention. 

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), our Supreme Court addressed the second requirement of Anders, i.e., 

the contents of an Anders brief, and required that the brief: 

(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. 

Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders 

requirements, it is then this Court's responsibility "to conduct a simple review 

of the record to ascertain if there appear on its face to be arguably meritorious 

issues that counsel, intentionally or not, missed or misstated." 

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018). 

Here, counsel has complied with each of the requirements of Anders. 

Counsel indicates that she conscientiously examined the record and 

determined that an appeal would be frivolous. Further, the Anders brief 

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comports with the requirements set forth by the Supreme Court of 

Pennsylvania in Santiago. Finally, the record includes a copy of the letter 

that counsel sent to Moreno, advising him of his right to proceed pro se or 

retain alternate counsel and file additional claims, and stating counsel's 

intention to seek permission to withdraw.7 Accordingly, counsel has complied 

with the procedural requirements for withdrawing from representation, and 

we will conduct an independent review to determine whether Moreno's appeal 

is wholly frivolous. 

The issue raised in the Anders brief presents a challenge to the 

discretionary aspects of Moreno's sentence.8 "Challenges to the discretionary 

aspects of sentencing do not entitle an appellant to review as of right." 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to 

reaching the merits of a discretionary sentencing issue, this Court conducts 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, [see] Pa.R.A.P. 2119(f); and (4) whether there 

Moreno has not filed any response to the Anders brief. 

8 As Moreno entered an open guilty plea, he retained the right to challenge 

the discretionary aspects of his sentence. See Commonwealth v. Luketic, 

162 A.3d 1149, 1159 (Pa. Super. 2017) (holding that when a defendant enters 

a guilty plea which does not involve a plea bargain designating the sentence 

to be imposed, he waives the right to challenge all non -jurisdictional defects 

except the legality of the sentence and the validity of the plea, but retains the 

right to challenge the discretionary aspects of his sentence). 

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is a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, [see] 42 Pa.C.S. 

§ 9781(b). 

Id. (citation omitted). When an appellant challenges the discretionary aspects 

of his sentence, we must consider his brief on this issue as a petition for 

permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. 

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18 

(Pa. 1987); 42 Pa.C.S. § 9781(b). 

In the instant case, Moreno filed a timely notice of appeal, and two 

timely post -sentence motions for reconsideration of sentence. However, 

Moreno raised no excessiveness challenge in either motion. Nor did he claim 

that his sentence was excessive at the original sentencing hearing, or during 

the two hearings conducted on his motions for reconsideration. Generally, 

issues that challenge the discretionary aspects of sentencing are waived if 

they are not raised during sentencing proceedings or in a post -sentence 

motion. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 

2004) (holding that issues challenging the discretionary aspects of a sentence 

are waived if not raised in a post -sentence motion or by presenting the claim 

to the trial court during the sentencing proceedings); see also Pa.R.A.P. 302. 

Additionally, while the Anders brief includes a separate "Statement of 

Reasons to allow Appeal from the Discretionary Aspects of Sentence," which 

we presume is intended to be a Rule 2119(f) statement, it does not indicate 

the manner in which Moreno's sentence raises a substantial question. See 

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Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008) (stating 

that an appellate court will only evaluate substantive discretionary sentencing 

claims that were relied upon in the Rule 2119(f) concise statement). 

While these deficiencies would generally result in waiver, in light of the 

fact that counsel has filed an Anders brief and petition to withdraw, we will 

address Moreno's contention. See Commonwealth v. Lilley, 978 A.2d 995, 

998 (Pa. Super. 2009) (addressing a discretionary sentencing issue despite 

the absence of a Rule 2119(f) statement in the Anders brief); see also 

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) 

(concluding that Anders requires review of issues otherwise waived on 

appeal). 

Our review is governed by the following principles: 

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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation 

omitted). In making a reasonableness determination, a court should consider 

four factors: 

(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. 

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(3) The findings upon which the sentence was based. 

(4) The guidelines promulgated by the commission. 

42 Pa.C.S. § 9781(d)(1)-(4). 

Here, Moreno came before the trial court with a prior record score of 

RFEL (repeat felon). He was sentenced on seven counts of residential 

burglary, each graded as a first -degree felony with an offense gravity score of 

seven. He was also on parole for four other residential burglary convictions. 

Given his convictions and criminal history, Moreno faced a maximum 

aggregate sentence of seventy to 140 years in prison. Yet, the trial court, 

upon reconsideration, sentenced Moreno to an aggregate prison term of 

thirteen to twenty-six years. Despite the imposition of a statutory maximum 

sentence on six of the convictions, the trial court's decision to run those 

sentences concurrently resulted in an aggregate sentence for all seven counts 

of burglary in the mitigated range of the sentencing guidelines. Therefore, 

Moreno's sentence is clearly not excessive. 

Additionally, the trial court considered a pre -sentence investigation 

report. Where a sentencing court is informed by a pre -sentence investigation 

report, "it is presumed that the court is aware of all appropriate sentencing 

factors and considerations, and that where the court has been so informed, 

its discretion should not be disturbed." Commonwealth v. Ventura, 975 

A.2d 1128, 1135 (Pa. Super. 2009). 

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Moreover, the trial court explained its reasons for the sentence on the 

record, noting the nature of the crimes, Moreno's criminal record, his failure 

to rehabilitate, and the fact that he was in this country illegally. See N.T. 

Sentencing, 6/13/18, at 21-23; see also 42 Pa.C.S.A. § 9721(b). Thus, we 

discern no abuse of discretion by the trial court, and agree with counsel's 

conclusion that Moreno's excessive sentencing challenge is wholly frivolous 

and does not entitle him to relief. 

Finally, our review of the record discloses no other non -frivolous issues 

that Moreno could raise that his counsel overlooked. Dempster, supra. 

Accordingly, we grant counsel's petition to withdraw, and affirm the judgment 

of sentence. 

Petition to withdraw granted, judgment of sentence affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 8/9/19 

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