J-S12022-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 postsentence motion on May 11, 2015. On this direct appeal, Appellant’s courtappointed 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).
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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).

____________________________________________

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 1⁄2 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