J-S60002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BERNARD REDDICK,

Appellant No. 130 EDA 2016

Appeal from the Judgment of Sentence December 4, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0007822-2013

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BERNARD RIDDICK,

Appellant No. 132 EDA 2016

Appeal from the Judgment of Sentence December 4, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0007475-2013

BEFORE: SHOGAN, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 27, 2016

Appellant, Bernard Reddick, appeals from the judgments of sentence 

entered following the violation of his parole and probation in the above-

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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captioned matters. Appellate counsel has filed a petition to withdraw his 

representation and a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which 

govern a withdrawal from representation on direct appeal.1 We grant 

counsel’s petition to withdraw and affirm the judgments of sentence.

We summarize the procedural history of this case as follows. On 

February 11, 2014, Appellant entered a plea of guilty to one count of retail 

theft at CP-23-CR-0007475-2013. On that date, the trial court sentenced 

Appellant to serve a term of incarceration of time served to twenty-three 

months. On March 17, 2014, Appellant entered a plea of guilty to one count 

of retail theft at CP-23-CR-0007822-2013. On that date, the trial court 

sentenced Appellant to serve a term of incarceration of time served to 

twenty-three months, followed by three years of probation. Subsequently, 

Appellant was arrested on additional charges of retail theft, and a bench 

warrant was issued. A Gagnon I hearing was held on November 20, 2015, 

and a Gagon II hearing was held on December 4, 2015.2 At the conclusion 

____________________________________________

1 We observe that Appellant is referred to as “Bernard Reddick” in one trial 

court docket and as “Bernard Riddick” in the second trial court docket. In 

his Anders brief, counsel notes that for the sake of consistency, he refers to 

Appellant as “Mr. Reddick.”

2

In Commonwealth v. Heilman, 876 A.2d 1021 (Pa. Super. 2005), we 

summarized the probation revocation process as follows:

(Footnote Continued Next Page)
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of the Gagnon II hearing, the trial court found Appellant to be in violation 

of his parole at CP-23-CR-0007475-2013, revoked his parole, and sentenced 

Appellant to his full back time with immediate parole. At CP-23-CR0007822-2013, the trial court found Appellant to be in violation of his 

parole, revoked his parole, and sentenced him to full back time with 

immediate parole. In addition, the trial court found Appellant to be in 

violation of his probation at CP-23-CR-0007822-2013, revoked his probation, 

and sentenced Appellant to serve a term of incarceration of twelve to thirty-

(Footnote Continued) _______________________

In Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 

93 S. Ct. 1756 (1973), the United States Supreme Court held 

that a defendant accused of violating the terms of his probation 

is entitled to two hearings prior to formal revocation and resentencing.

When a parolee or probationer is detained pending a 

revocation hearing, due process requires a 

determination at a pre-revocation hearing, a 

Gagnon I hearing, that probable cause exists to 

believe that a violation has been committed. Where 

a finding of probable cause is made, a second, more 

comprehensive hearing, a Gagnon II hearing, is 

required before a final revocation decision can be 

made.

Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super. 

2001). The Gagnon II hearing requires two inquiries: (1) 

whether the probationer has in fact violated one of the 

conditions of his probation, and, if so, (2) should the probationer 

“be recommitted to prison or should other steps be taken to 

protect society and improve chances of rehabilitation.” Id. 

(quoting Gagnon, supra at 784).

Heilman, 876 A.2d at 1026-1027.
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six months. Appellant did not file post-sentence motions. This timely 

appeal followed the imposition of the new judgments of sentence.

As noted, counsel has filed a petition to withdraw from representation. 

Before we address the questions raised on appeal, we must resolve appellate 

counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 

1030 (Pa. Super. 2013) (en banc). There are procedural and briefing 

requirements imposed upon an attorney who seeks to withdraw on direct 

appeal. The procedural mandates are that counsel must:

1) 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; 2) furnish a copy 

of the brief to the defendant; and 3) advise the defendant that 

he or she has the right to retain private counsel or raise 

additional arguments that the defendant deems worthy of the 

court’s attention.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within the petition 

to withdraw, counsel averred that he conducted a conscientious review of 

the record and pertinent legal research. Following that review, counsel 

concluded that the present appeal is frivolous. Counsel sent Appellant a 

copy of the Anders brief and petition to withdraw, as well as a letter, a copy 

of which is attached to the petition to withdraw. In the letter, counsel 

advised Appellant that he could represent himself or that he could retain 

private counsel.
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We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide that:

in 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

Counsel’s brief is compliant with Santiago. The brief sets forth the 

procedural history of this case and outlines pertinent case authority. We 

thus conclude that the procedural and briefing requirements for withdrawal 

have been met.

Counsel presents the following issue for our review:

Whether the 12 to 36 months of incarceration imposed in 

addition to the back time in these cases is harsh and excessive 

under the circumstances and whether the Lower Court provided 

adequate reasons for imposing it?

Anders Brief at 2 (italics in original).

Appellant’s sole issue challenges the discretionary aspects of his 

sentence. However, Appellant waived any challenges to the discretionary 

aspects of his sentence by failing to raise such issue to the trial court.

As this Court clarified in Cartrette, our scope of review following the 

revocation of probation is not limited solely to determining the validity of the 
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probation revocation proceedings and the authority of the sentencing court 

to consider the same sentencing alternatives that it had at the time of the 

initial sentencing. Rather, it also includes challenges to the discretionary 

aspects of the sentence imposed. Specifically, we unequivocally held that 

“this Court’s scope of review in an appeal from a revocation sentencing 

includes discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. 

Further, as we have long held, the imposition of sentence following the 

revocation of probation is vested within the sound discretion of the trial 

court, which, absent an abuse of that discretion, will not be disturbed on 

appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

It is well settled that there is no absolute right to appeal the 

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 

800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the 

discretionary aspects of a sentence, the appeal should be considered a 

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 

155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

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 
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to reconsider and modify sentence, see Pa.R.Crim.P. 

[708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)).

Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues 

not raised in the lower court are waived and cannot be raised for the first 

time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects 

of a sentence are generally waived if they are not raised at the sentencing 

hearing or in a motion to modify the sentence imposed. Moury, 992 A.2d at 

170 (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In 

addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must 

be filed within ten days of the imposition of sentence following the 

revocation of probation. Pa.R.Crim.P. 708(D). As the comment to 

Pa.R.Crim.P. 708 explains:

Issues properly preserved at the sentencing proceeding need 

not, but may, be raised again in a motion to modify sentence in 

order to preserve them for appeal. In deciding whether to move 

to modify sentence, counsel must carefully consider whether the 

record created at the sentencing proceeding is adequate for 

appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a 

sentence is waived if not raised in a post-sentence motion or during the 

sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745 
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(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was 

waived because appellant did not object at sentencing hearing or file postsentence motion).

Herein, the first requirement of the four-part test is met because 

Appellant brought a timely appeal. However, our review of the certified 

record reflects that Appellant waived his challenge to the discretionary 

aspects of his sentence by failing to raise the claim either at the sentencing 

proceeding or by means of a post-sentence motion. Thus, this issue has not 

been properly preserved for appeal, and the record is not adequate to allow 

appellate review of Appellant’s claim. Accordingly, we deem this issue to be 

waived.

We also have independently reviewed the record in order to determine 

whether there are any non-frivolous issues present in this case that 

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. 

Super. 2014). Having concluded that there are no meritorious issues, we 

grant Appellant’s counsel permission to withdraw, and we affirm the 

judgment of sentence.

Petition of counsel to withdraw is granted. Judgments of sentence 

affirmed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2016