J-S58035-15

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

ANDRE D. FULLER

Appellant No. 1999 MDA 2014

Appeal from the Judgment of Sentence July 28, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0003235-2013

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.* 

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 06, 2015

Appellant, Andre D. Fuller, appeals from the judgment of sentence 

entered in the Luzerne County Court of Common Pleas, following his guilty 

plea to criminal attempt—criminal homicide.1 We affirm and grant counsel’s 

petition to withdraw. 

The relevant facts and procedural history of this case are as follows. 

On August 3, 2013, at approximately 10:50 p.m., Officer Dudick was on 

patrol in Wilkes-Barre when he heard multiple gunshots. Officer Dudick 

reported the shots and traveled to the location where an off-duty police 

officer reported a black male in a white long sleeve t-shirt running from the 

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1 18 Pa.C.S.A. § 2501(a) (901(a) related). 
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area. Upon arriving at the shooting scene, Officer Dudick observed the 

victim, William Uggiano, lying on the street with gunshot wounds to his 

head, hand, leg, and buttocks. The victim was conscious and told the police 

he did not know the name of the shooter but had seen him around town. 

The victim was transported to the hospital, and the police recovered several 

.45 caliber shell casings where the victim had been found. After receiving 

information from the victim’s mother regarding the shooter’s identity, the 

police showed the victim a photo array. The victim positively identified 

Appellant as the shooter. 

Appellant entered a negotiated guilty plea on July 28, 2014, to criminal 

attempt—criminal homicide. That same day, the court imposed the 

negotiated sentence of six (6) to twelve (12) years’ imprisonment. While 

still represented by counsel, Appellant filed a notice of appeal pro se on 

August 25, 2014, under the Prisoner Mailbox Rule. The court subsequently 

conducted a Grazier2 hearing on January 6, 2015, after which the court 

appointed new counsel and granted an extension of time to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On January 30, 2015, counsel filed a notice of intent to file an Anders brief. 

Thereafter, counsel filed a petition for leave to withdraw in this Court on May 

21, 2015. 

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2 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). 
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As a preliminarily matter, counsel seeks to withdraw her 

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 

159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) 

petition the Court for leave to withdraw, certifying that after a thorough 

review of the record, counsel has concluded the issues to be raised are 

wholly frivolous; 2) file a brief referring to anything in the record that might 

arguably support the appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se 

brief to raise any additional points the appellant deems worthy of review. 

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance 

with these requirements is sufficient. Commonwealth v. Wrecks, 934 

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent 

requirements have been met, this Court must then make an independent 

evaluation of the record to determine whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 

(Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation:
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Neither Anders nor McClendon[3]requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are 

references to anything in the record that might arguably 

support the appeal.

* * *

Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed 

counsel’s petition to withdraw, counsel 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 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.

Id. at 178-79, 978 A.2d at 361. 

Instantly, counsel filed a petition to withdraw. The petition states 

counsel conducted a conscientious review of the record and determined the 

appeal is wholly frivolous. Counsel also supplied Appellant with a copy of 

the brief and a letter explaining Appellant’s right to retain new counsel or to 

proceed pro se to raise any additional issues Appellant deems worthy of this 

Court’s attention. (See Letter to Appellant, dated 5/21/15, attached to 

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3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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Petition for Leave to Withdraw as Counsel.) In the Anders brief, counsel 

provides a summary of the facts and procedural history of the case. 

Counsel’s argument refers to relevant law that might arguably support 

Appellant’s issues. Counsel further states the reasons for her conclusion 

that the appeal is wholly frivolous. Therefore, counsel has substantially 

complied with the requirements of Anders and Santiago. 

Counsel raises the following issues in the Anders brief:

WHETHER THE TRIAL COURT LACKED STATUTORY 

AUTHORITY FOR THE SENTENCE IMPOSED? 

WHETHER THE SENTENCE OF A MINIMUM OF SIX YEARS 

TO A MAXIMUM OF TWELVE YEARS[’] INCARCERATION IS 

HARSH AND EXCESSIVE? 

(Anders Brief at 1-2). Appellant filed a pro se supplemental brief and raises 

the following issues:

DID THE TRIAL [COURT] HAVE AUTHORITY TO ACCEPT 

THE PLEA AGREEMENT? 

WAS THE JUDGMENT OF SENTENCE LAWFUL? 

IF A[N] ORALLY PRONOUNCED SENTENCE IS NOT 

INCORPORATED WITHIN THE JUDGEMENT OF SENTENCE 

ORDER IS THAT SENTENCE ILLEGAL? 

IF THE JUDGEMENT OF SENTENCE ORDER POSSES[SES] 

NO STATUTORY AUTHORIZATION IS THAT DOCUMENT 

INVALID? 

WAS THERE A PRELIMINARY HEARING OF RECORD? 

WAS THERE A LAWFUL ARREST? 

(Appellant’s Supplemental Brief at 1). 
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On appeal, Appellant’s pro se supplemental brief and counsel’s Anders

brief essentially raise the same arguments. Appellant and counsel allege the 

sentence of six to twelve years’ imprisonment is excessive and illegal.4 

Appellant and counsel contend the court lacked statutory authority to accept 

Appellant’s guilty plea and impose his sentence. Appellant concludes this 

Court should vacate and remand for resentencing. Appellant’s claims 

challenge, in part, the discretionary aspects of sentencing. See 

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim 

that sentence is manifestly excessive challenges discretionary aspects of 

sentencing). 

“[W]here a defendant pleads guilty pursuant to a plea agreement 

specifying particular penalties, the defendant may not seek a discretionary 

appeal relating to those agreed-upon penalties.” Commonwealth v. 

Brown, 982 A.2d 1017, 1019 (Pa.Super. 2009) (citing Commonwealth v. 

Dalberto, 648 A.2d 16, 20 (1994)). “Permitting a defendant to petition for 

such an appeal would undermine the integrity of the plea negotiation 

process and could ultimately deprive the Commonwealth of sentencing 

particulars for which it bargained.” Id. (citing Dalberto, supra at 18). 

Moreover, “[a] person commits an attempt when, with intent to 

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4 As a general rule, the “entry of a guilty plea constitutes a waiver of all 

defects and defenses except lack of jurisdiction, invalidity of the plea, and 

illegality of the sentence.” See Commonwealth v. Main, 6 A.3d 1026, 

1028 (Pa.Super. 2010). 
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commit a specific crime, he does any act which constitutes a substantial step 

toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). Section 2501 

of the Pennsylvania Consolidated Statutes further provides:

§ 2501. Criminal homicide

(a) Offense defined.—A person is guilty of criminal 

homicide if he intentionally, knowingly, recklessly or 

negligently causes the death of another human being. 

(b) Classification.—Criminal homicide shall be classified 

as murder, voluntary manslaughter, or involuntary 

manslaughter. 

18 Pa.C.S.A. § 2501(a)-(b). Criminal attempt is a crime “of the same grade 

and degree as the most serious offense which is attempted....” 18 Pa.C.S.A. 

§ 905(a). Third-degree murder and voluntary manslaughter are graded as 

first-degree felonies. See 18 Pa.C.S.A. §§ 2502(c), 2503(c). An individual 

convicted of a first-degree felony may be sentenced to “a term which shall 

be fixed by the court at not more than 20 years.” 18 Pa.C.S.A. § 1103(1). 

Here, Appellant has no grounds to challenge his sentence. Appellant’s 

plea agreement included a negotiated sentence of six to twelve years’ 

imprisonment in exchange for the Commonwealth dropping the numerous 

remaining charges. Therefore, Appellant’s negotiated plea agreement 

precludes him from challenging the discretionary aspects of his sentence. 

See Brown, supra. Furthermore, criminal attempt—criminal homicide is a 

first-degree felony and carries a maximum penalty of twenty years’ 

imprisonment. See 18 Pa.C.S.A. §§ 905(a), 2502(c), 2503(c), and 1103(1). 
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The court sentenced Appellant to six to twelve years’ imprisonment, which is 

below the statutory maximum. Thus, Appellant’s sentence was not illegal, 

and the court had authority to impose the sentence. Accordingly, we affirm 

the judgment of sentence and grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015