J-S30036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDDIE RAY GRAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 15 WDA 2020

Appeal from the Judgment of Sentence entered May 31, 2019

In the Court of Common Pleas of Warren County Criminal Division at 

No(s): CP-62-CR-0000264-2012

MEMORANDUM PER CURIAM: FILED JULY 28, 2020

Appellant Eddie Ray Gray appeals from the Judgment of Sentence1

entered on May 31, 2019, as made final by the Order entered in the Court of 

Common Pleas of Warren County on June 25, 2019, denying his Post-Sentence 

Motion following resentencing upon remand from the United States District 

Court for the Western District of Pennsylvania at which time he received an 

aggregate prison term of twenty-five (25) years to fifty (50) years with credit 

for time served. On this direct appeal, Appellant’s counsel has filed both a 

petition for leave to withdraw as counsel and an accompanying brief pursuant

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1 Appellant purports to appeal from the Order entered on June 25, 2019, 

denying his post-sentence motion. However, “[i]n a criminal action, appeal

properly lies from the judgment of sentence made final by the denial of postsentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 

(Pa.Super. 2001), appeal denied, 800 A.2d 932 (Pa. 2002) (citation omitted). 

We have amended the caption accordingly.
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to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel 

has complied with the procedural requirements necessary to withdraw. 

Moreover, after independently reviewing the record, we conclude that the 

instant appeal is wholly frivolous. We, therefore, grant counsel’s petition for 

leave to withdraw and affirm Appellant’s judgment of sentence.

A panel of this Court previously summarized the lengthy and disturbing 

facts and procedural history herein on direct appeal; therefore, we need not 

restate them in their entirety. Commonwealth v. Gray, No. 1503 WDA 2012

(Pa.Super. filed July 9, 2013) (unpublished memorandum). Briefly, Appellant 

and his cousin and codefendant Jeremy C. Hoden were tried together and were 

sentenced to thirty-five and one-half (35 1⁄2) years to seventy-one (71) years

in prison after a jury convicted them of four (4) counts of Retaliation Against 

a Prosecutor or Judicial Official, three (3) counts of Retaliation Against a 

Witness, Victim or Party, seven (7) counts of Terroristic Threats, and one (1) 

count of Conspiracy- Retaliation Against a Prosecutor or Judicial Official.

2 Prior 

thereto, Hoden had pled guilty to numerous charges in connection with two 

criminal matters in 2007, one of which involved his attack on a seventy-seven 

year old woman which left her hospitalized with serious injuries. The two 

victims, the elderly woman and her adult son, would have been witnesses 

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2 18 PA.C.S.A. §§ 4953.1; 4953; 2706(a)(1); and, 903 respectively. 
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against Hoden if those matters proceeded to trial. Hoden received a total term 

of imprisonment of twelve (12) years to twenty (24) years in prison. 

Starting in January of 2012 and ending in February of 2012, Hoden and

Appellant, both of whom were in prison at the time, mailed letters containing 

extremely violent, vulgar and highly disturbing language to several trial court 

judges, the District Attorney an Assistant District Attorney and the two 

victims. A Pennsylvania State Police trooper also was targeted in the letters, 

though he did not personally receive one. In the correspondence, Appellant 

and Hoden threated the lives of the recipients as well as members of their 

families in graphic detail as to the pain they would inflict upon each individual.3 

The documents indicated that the victims could be killed when Appellant was 

released from prison and suggested he and Hoden had the ability to obtain 

help from outside sources in carrying out their threats while they were 

imprisoned. Each piece of correspondence was signed by the sender, and had 

the sender's name and prison address on the return address portion of the 

envelope used to mail it.

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3

 For example, this Court previously stressed on direct appeal: “[t]he actions 

that [Appellant] said that he would commit with respect to ADA Feronti and 

Judge Morgan are so vile that we could not reproduce them. Indeed, ADA 

Feronti was pregnant when the letters were sent to her office, and her 

colleagues did not allow her to view them for fear she would suffer a 

miscarriage.” Gray, supra at 23-25. 
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These letters gave rise to the charges for which the men were tried 

commencing on August 29, 2012. Following trial, the jury convicted both men

of the aforementioned crimes. This Court affirmed Appellant’s judgment of 

sentence on direct appeal, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal on November 27, 2013.

On July 1, 2014, Appellant filed a petition pursuant to the Post 

Conviction Relief Act (PCRA)4 pro se which was later amended by counsel. 

Following an evidentiary hearing on August 17, 2015, the trial court denied 

the PCRA petition. Appellant appealed, and this Court affirmed the PCRA 

court’s order denying his PCRA petition on September 22, 2016. 

Commonwealth v. Gray, No. 1733 WDA 2015 (Pa.Super. filed Sept. 22, 

2016) (unpublished memorandum). The Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal on February 28, 2017.

On February 21, 2019, the United States District Court for the Western 

District of Philadelphia granted, in part, Appellant’s pro se Habeas Corpus

petition and vacated Counts Five (5), Six (6) and Seven (7), all of which 

related to the three Retaliation Against a Witness, Victim or Party convictions.

5

The District Court determined that Appellant’s trial attorney had been

ineffective in failing to object to the form of the jury instruction pertaining to 

these counts at trial. The Court ordered the Commonwealth to retry Appellant 

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4 42 Pa.C.S.A. §§ 9541-9546. 

5 18 Pa.C.S.A. § 4953. 
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on the three charges within 180 days, or vacate those convictions and 

resentence him on the remaining counts. In a motion filed March 8, 2019, 

the Commonwealth opted to have Appellant resentenced on the convictions 

that had not been vacated. 

The trial court held a resentencing hearing on May 31, 2019. At that 

time, after an on the record colloquy at which time Appellant was advised of 

the risks in doing so, he proceeded without counsel. N.T. Resentencing 

Hearing, 5/31/19, at 2-5. At the outset of the hearing, Appellant made an 

oral motion for extraordinary relief. Id. at 6. In his motion, Appellant argued 

that the Commonwealth had violated Pa.R.Crim.P. 573 by failing to disclose 

to the defense that the Commonwealth had been aware of letters written by 

Appellant and Hoden that allegedly asserted their true intent in writing the 

aforementioned threat letters was to further an escape from prison plot. The 

trial court denied the oral motion and in doing so explained to Appellant that 

even were it to assume the letters said what Appellant claimed they did, they 

would not have changed the result of his trial, because his defense was that 

Hoden wrote all the letters without Appellant’s knowledge. Id. at 17-18. 

The Commonwealth then urged the trial court to resentence Appellant 

to thirty-five and one half (35 1⁄2) years to seventy-one (71) years in prison. 

Id. at 21. Despite his previously-presented oral motion, Appellant indicated 

that he agreed with the Commonwealth “that these crimes were just as 

heinous than as they are now. There’s no taking away from what I wrote, 
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what I said. The difference now being I’ve accepted responsibility for what I 

did regardless of why I did it. I did write those letters. I did send them to the 

judges. I did send them to the victims and I did send them to the 

prosecutor/ADA in the Hoden case. Now I get that.” Id. at 21-22. 

Prior to imposing its original sentence, the trial court had the benefit of 

a pre-sentence investigation report. N.T. Sentencing, 9/7/12, at 5. 

Importantly, before re-imposing sentence, the trial court recognized Appellant 

had made great strides toward rehabilitation, and, therefore, determined that 

while it could keep the initial sentence intact, it would not do so. The trial 

court stressed it was of the belief that it is “never wed to any sentence and 

[it] always think[s] good legal work should be rewarded.” N.T., Resentencing 

Hearing, 5/31/19, at 34-38. The court also was aware that at the time the 

offenses occurred in this case Appellant was classified "REVOC" (Repeat 

Violent Offender Category) for purposes of determining his Prior Record Score 

(PRS) under the Sentencing Guidelines, 204 Pa. Code §303.4(a)(2), and 

§303.16(a), and that the four counts of Retaliation Against Prosecutor or 

Judicial Official involved four individuals, two judges and two prosecutors, 

each of whom received a threatening letter from Appellant. Id. at 36-37.

The trial court further referenced on the record at resentencing its 

reasons for the sentence. The court stressed that Appellant’s acts of 

threatening judges and prosecutors were the kind of things that hit at the very 

basis of the judicial system. The court further highlighted that Appellant’s 
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actions exceeded threats to kill the victims by adding that because he was

connected to gangs in Pittsburgh he could still cause them harm from prison. 

The court reminded Appellant his acts were heinous and designed to strike 

terror in the victims. The trial court also took into account the general 

sentencing standards contained in 42 Pa.C.S.A. Sec. 9721(b) when fashioning 

a sentence that it believed would protect the public and the judicial system, 

as well as take into account the rehabilitative needs of Appellant and the 

impact his actions had on the lives of the victims. Importantly, the court also 

acknowledged that Appellant had made positive strides during his time in 

prison. Id. at 34-38. 

Appellant was resentenced as follows: Count 1 -Retaliation against 

prosecutor or judicial official five (5) to ten (10) years’ incarceration; Count 

2- Retaliation against prosecutor or judicial official five (5) to ten (10) years’

incarceration consecutive to count 1; Count 3- Retaliation against prosecutor 

or judicial official five (5) to ten (10) years’ incarceration consecutive to Count 

2; Count 4- Retaliation against prosecutor or judicial official five (5) to ten 

(10) years’ incarceration consecutive to Count 3. On the Counts 9 through 15,

Misdemeanor 1 Terroristic Threat convictions, the trial court sentenced 

Appellant to pay a $100.00 fine with no incarceration time ordered. On Count 

17- Criminal Conspiracy, Appellant was sentenced to (five) 5 to (ten) 10 years’ 

incarceration consecutive to Count 4. Thus, Appellant’s aggregate sentence 

was a minimum period of twenty-five (25) years to a maximum of fifty (50) 
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years in prison, with credit for time served. Appellant was found to be neither 

Boot Camp nor RRRI eligible. Id. at 40. See also, Sentencing Order, 

5/31/19. The trial court pointed out that Hoden had received a longer 

sentence than Appellant’s for essentially the same conduct. Id. at 39. 

Appellant filed a post-sentence motion on June 10, 2019, and in its 

Order entered on June 25, 2019, the trial court denied the same. The instant, 

timely appeal followed. On January 2, 2020, the trial court entered its Order 

directing Appellant to file a concise statement of the matters complained of 

on appeal pursuant to Pa.R.A.P. 1925(b). Counsel was appointed, and on 

January 17, 2020, he filed a statement in lieu of errors complained of on 

appeal. On January 27, 2020, the trial court entered its Pa.R.A.P. 1925(a) 

Opinion wherein it indicated it had addressed on the record at the time of 

resentencing each of Appellant’s issues raised on appeal and referred this 

Court to its reasoning set forth on May 31, 2019. 

As previously stated, counsel has filed a petition to withdraw from 

representation along with an Anders brief with this Court. Before reviewing 

the merits of this appeal, we first must determine whether appointed counsel 

has fulfilled the necessary procedural requirements for withdrawing as 

counsel. Commonwealth v. Miller, 715 A.2d 1203, 1207 (Pa.Super. 1998).

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 
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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 

he or she:

(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, supra, 978 A.2d at 361. Finally, counsel must furnish a copy of 

the Anders brief to his or her 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; see also 

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018) (en 

banc) (holding that the Anders procedure requires this Court to review “the 

entire record with consideration first of the issues raised by counsel. ... [T]his 

review does not require this Court to act as counsel or otherwise advocate on 

behalf of a party. Rather, it requires us only to conduct a review of the record 

to ascertain if[,] on its face, there are non-frivolous issues that counsel, 
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intentionally or not, missed or misstated. We need not analyze those issues 

of arguable merit; just identify them, deny the motion to withdraw, and order 

counsel to analyze them”). It is only when all of the procedural and 

substantive requirements are satisfied that counsel will be permitted to 

withdraw.

In the case at bar, counsel complied with all of the above procedural 

obligations. We must, therefore, review the entire record and analyze whether 

this appeal is, in fact, wholly frivolous. Our review begins with the claims

Appellant raises in his brief: 

(1) Did the trial court abuse its discretion in entering its May 31, 

2019, sentencing order in the within case?

(2) Were the sentences on the convictions at Counts 1,2,3, and 

4, for the 'Retaliation Against Prosecutor or Judicial Officials' 

(18 Pa.C.S.A. Sec. 4953.1), excluding the sentence on the 

conspiracy conviction to commit - same, illegal as the trial 

court failed to merge the sentences entered for the 

convictions of 'Retaliation Against Prosecutor or Judicial 

Official'(18 Pa.C.S.A. Sec. 4953.1)?

(3) Were the verdicts relating to Counts 1,2,3,4, and 17 (ie. 

Retaliation Against Prosecutor or Judicial Official, and, 

conspiracy to commit same, against the weight of the 

evidence as there was no objective harm separate and apart 

from the mere showing of an unlawful act by the defendant?

(4) Did the trial court error [sic] in failing to grant extraordinary 

relief when the prosecutor failed to provide [Appellant] with 

evidence that they were aware, prior to trial, that 

[Appellant’s] intent in writing the offending letters was not 

for the purpose of threatening the judicial officials or 

prosecutors but rather was for the purpose of having himself 

[Appellant] transported to Warren County Jail ,from a State 

Correctional Facility, to facilitate an escape plot?
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(5) Was the waiver of counsel colloquy at time of resentencing 

so defective as to constitute reversible error?

Anders brief at 1-3. 

In considering Appellant’s claims, we are guided by a well-settled 

standard of review. We have explained:

sentencing is vested in the discretion of the trial court, and will 

not be disturbed absent a manifest abuse of that discretion. An 

abuse of discretion involves a sentence which was manifestly 

unreasonable, or which resulted from partiality, prejudice, bias or 

ill will. It is more than just an error in judgment.

Commonwealth v. Crork, 966 A.2d 585, 590 (Pa.Super. 2009) (quotations 

and citations omitted). 

Appellant initially challenges the discretionary aspects of his sentence. 

Appellant is not entitled to review of such claims as a matter of right, for this 

Court first conducts a four-part analysis to determine: 

(1) whether appellant has filed a timely notice of appeal; (2) 

whether the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence; (3) whether 

appellant’s brief has a fatal defect; and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code.

* * * *

A substantial question will be found where an appellant advances 

a colorable argument that the sentence imposed is either 

inconsistent with a specific provision of the Sentencing Code or is 

contrary to the fundamental norms which underlie the sentencing

process. At a minimum, the Rule 2119(f) statement must 

articulate what particular provision of the code is violated, what 

fundamental norms the sentence violates, and the manner in 

which it violates that norm.
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Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citations 

omitted).

Herein, Appellant preserved his first claim by filing a post sentence 

motion, and a Pa.R.A.P. 2119(f) statement is included in the Anders brief. 

However, the substance of Appellant’s discretionary aspects of sentencing 

claim is frivolous. First, the trial court had the benefit of a PSI. “Where presentence reports exist, we shall continue to presume that the sentencing judge 

was aware of relevant information regarding the defendant’s character and 

weighed those considerations along with mitigating statutory factors.” 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Further, Appellant’s 

sentence was in the standard range of the sentencing guidelines, and the trial 

court detailed its reasons for imposing the same. Where a sentence is within 

the standard range of the guidelines, Pennsylvania law views the sentence as 

appropriate under the Sentencing Code. See Moury, 992 A.2d 162, 171 

(Pa.Super. 2010). 

Moreover, this Court has held that the imposition of consecutive 

sentences following one’s convictions for multiple criminal acts that arose out 

of a larger criminal transaction does not in itself raise a substantial question, 

as a defendant is not entitled to a "volume discount" for his crimes. 

Commonwealth v. Hoag, 655 A.2d 1212, 1214 (Pa.Super. 1995). 

Therefore, under the circumstances of this case, we cannot conclude that the 

imposition of concurrent, standard range sentences constitutes an 
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unreasonable sentence. Hence, Appellant’s challenges to the discretionary

aspects of his sentence is frivolous.

Appellant next posits the convictions for retaliation against the judges 

and prosecutors, excluding the conspiracy to commit the same offenses, 

should have merged for sentencing purposes because they were part of one 

episode. Our standard of review for a merger claim is de novo and the scope 

of review is plenary. Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. 

Super. 2013). 42 Pa.C.S.A. §9765 states, in part, that no crimes shall merge 

for sentencing purposes unless the crimes arise from a single criminal act.

Convictions merge for sentencing purposes where: “(1) the crimes arise from 

a single criminal act; and (2) all of the statutory elements of one of the 

offenses are included within the statutory elements of the other.” 

Commonwealth v. Kimmel, 125 A.3d 1272, 1276 (Pa.Super. 2015) (en 

banc). As previously stated, Appellant wrote different letters to two trial court 

judges, the district attorney and an ADA; therefore, his separate criminal acts 

were directed toward each of these victims. It follows that the merger doctrine

does not apply, and this claim is meritless. 

Appellant’s third issue challenging the weight of the evidence is waived 

for his failure to preserve it in his post-sentence motion. We observe that 

Appellant never made a pre or post-sentence motion for a new trial based on 

the weight of the evidence. See Commonwealth v. Thompson, 93 A.3d 

478, 490 (Pa.Super. 2014) (“a weight of the evidence claim must be preserved
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either in a post-sentence motion, by a written motion before sentencing, or 

orally prior to sentencing.”). See also Pa.R.Crim.P. 607(A)(1)-(3) (claim that 

verdict was against weight of evidence shall be raised in motion for new trial 

orally on the record before sentencing, or in written motion before or after 

sentencing). 

Next, Appellant asserts the trial court erred in failing to grant his oral 

motion for extraordinary relief because the prosecution withheld evidence 

which would have revealed his true intent in writing the letters. Appellant 

contends his intent when writing the letters was to further an escape plot with 

Hoden, not to harm the judicial officer or prosecutors to whom the 

correspondence was sent. Essentially, this is a claim of after-discovered 

evidence discovered during the post-sentence stage. Such a claim must be 

raised promptly with the trial judge at the post-sentence stage, and where an 

appellant has failed to file a post-trial motion for a new trial on the basis of 

after-discovered evidence, such a claim is deemed waived. See 

Commonwealth v. Childress, 680 A.2d 1184, 1189 (Pa.Super. 1996).

Therefore, Appellant’s failure to include this claim in his post-sentence motion 

results in its waiver. 

Moreover, even if it had been properly preserved, the trial court at the 

original sentencing hearing stated on the record "[t]here was a discussion with 

the Attorney General prior to the case starting about putting a letter that they 

found in your cell about some type of escape plan or something along that 
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nature." N.T. Sentencing, 9/7/2012, at 10. Therefore, Appellant cannot now 

plausibly claim he was unaware that the Commonwealth knew of his alleged 

motive in writing these letters prior to resentencing, at which time his own 

admissions that he wrote the disturbing letters to the affected individuals

contradict this present argument. 

Finally, Appellant maintains the waiver of counsel colloquy conducted at 

the resentencing hearing was so defective as to constitute reversible error. 

Following our review of the resentencing transcript, we find this claim to be 

disingenuous, for Appellant clearly indicated his was aware of his actions and 

presented arguments which the trial court recognized as “good legal work.” 

N.T. Resentencing Hearing, 5/31/19, at 38. In fact, at no time at the 

resentencing hearing or in his post sentence motion did Appellant contend his 

colloquy was in any way defective. It is axiomatic that the mere filing of an 

Anders brief and petition to withdraw will not serve to resuscitate claims that 

were already waived upon the filing of the notice of appeal. See Pa.R.A.P. 

302(a) (providing the general rule that “[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on appeal”). Thus, this issue 

is both waived and meritless. 

We have independently considered the claims raised within Appellant’s 

brief and determined that they are 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 grant 
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counsel’s petition for leave to withdraw and affirm Appellant’s judgment of 

sentence.

Petition for leave to withdraw appearance granted. Judgment of 

sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2020