J-S14044-16

 2016 PA Super 39 

*Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AARON MAURICE BYNUM-HAMILTON,

Appellant No. 1151 MDA 2015

Appeal from the Judgment of Sentence June 5, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002550-2013, CP-36-CR-0004371-

2009, CP-36-CR-0005240-2012, CP-36-CR-0005642-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2016

This is an appeal from the judgment of sentence entered in the Court 

of Common Pleas of Lancaster County by the Honorable Jeffrey D. Wright on 

June 5, 2015, at which time Appellant was sentenced to an aggregate term 

of seven years to fifteen years in prison following the revocation of his parole 

and probation. In addition, Appellant's counsel has filed a petition to 

withdraw his representation and a brief 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). After a careful review, we 

grant counsel's petition to withdraw and affirm Appellant's judgment of 

sentence.
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The relevant facts and procedural history herein are as follows: On 

September 3, 2014, Appellant participated in a video parole/probation 

violation hearing. Following its determination that Appellant had knowingly 

and intelligently waived his right to be personally present and that he had 

consented to the use of simultaneous audio/video two-way communication in 

the proceeding, the trial court remarked that serious charges had been 

brought against Appellant on July 27, 2014, in Chester County, including an 

attempted homicide charge. N.T., 9/3/14, at 3-4. 

Appellant’s Probation Officer1testified that his period of supervision 

with Appellant had begun on May 28, 2014, and that while Appellant 

reported to his scheduled appointments on May 29th and June 11th, he failed 

to report on July 2nd, July 10th, and July 16th. Id. at 5. Appellant tested 

positive for marijuana and benzodiazepines on July 2nd, and he signed an 

admission indicating he had ingested marijuana on or about May 27th. Id. at 

5-6. Due to his past history of violations resulting from new charges, his 

chronic drug use, and the aggravated nature of the pending charges in 

Chester County, the Probation Officer recommended that the trial court 

vacate Appellant’s current parole sentence, revoke his probation, and 

commit him to a state prison. Id. at 6. The trial court informed Appellant 

____________________________________________

1 The Probation Officer’s proper name does not appear in the hearing 

transcript. 
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he had an “absolute right” to make a statement, and Appellant twice 

indicated he had nothing else to say. Id. at 5. 

At the conclusion of the hearing, the trial court found Appellant to be 

in violation of his probation and parole on Information: 4371 of 2009, 

Counts 1 and 2; 5240 of 2012; 2550 of 2013; and 5642 of 2013, Count 2. 

After ordering all of his probation and parole revoked, the trial court further 

directed the Lancaster County Department of Probation and Parole to 

prepare a Presentence Investigation (PSI) report and provide it to the court 

within sixty days. The trial court also requested that the PSI report contain 

an itemization of all time Appellant had spent incarcerated on each of the 

dockets and counts at issue. Appellant declined the trial court’s offer for 

him to discuss the matter in confidence with defense counsel. Id. at 6-7. 

Appellant’s probation/parole violation sentencing hearing was held on 

June 5, 2015. At the outset, Probation Officer Elizabeth Buckwalter 

indicated that Defense Counsel Kathleen M. Morrison, Esquire, and Appellant 

had signed a stipulation form on September 3, 2014, and Attorney Morrison 

stated she had received the PSI report and reviewed it with Appellant two 

days earlier in Lancaster County Prison. She represented that Appellant did 

not have any questions about the PSI report or concerns regarding the 

information contained therein. The sentencing court informed Appellant he 

had an “absolute right” to make a statement regarding counsel’s assertions; 

however, Appellant declined the opportunity to do so. N.T., 6/5/15, at 2. 
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Attorney Morrison added that Appellant had been tried and sentenced 

to five years to ten years in prison in Chester County;2 however, she 

stressed the PSI report revealed Appellant suffered from significant mental 

health issues from a young age and had been diagnosed with bipolar 

disorder as a teenager. She requested that the sentencing court end county 

supervision in light of the fact that Appellant would be on state supervision 

for the next ten years. In the alternative, she urged the sentencing court to 

run any state prison sentence it might impose upon Appellant concurrently 

with the prison term he would be serving in Chester County. Id. at 3. 

In response, the sentencing court indicated that any sentence it orders 

must be consistent with the law which requires it to consider the gravity of 

the offenses, the protection of the public, and Appellant’s rehabilitative 

needs. Id. The sentencing court explained that it had contemplated the 

nature of and circumstances surrounding the underlying offenses, the PSI 

report, information provided by counsel, its independent observations and 

Appellant’s history and conduct while on supervision. Id. at 4. The 

sentencing court stressed that Appellant at age twenty-three showed 

sufficient maturity and intelligence to comprehend the significance of his 

actions, had worked just one day in his life, and had paid nothing toward the 

fines and costs pending on Docket 4371 of 2009 for over two and one-half 

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2 On February 10, 2015, Appellant was convicted of one count of aggravated 

assault and sentenced to five years to ten years in a state prison. 
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years or toward the other three dockets. Id. The sentencing court further 

highlighted Appellant’s extensive criminal record including ten juvenile 

adjudications one of which involved his being tried as an adult on Docket 

4371 of 2009 for a theft of firearms and that he committed this crime while 

still on court-ordered juvenile supervision. 

Additionally, the sentencing court explained that since turning 

eighteen, Appellant had garnered five additional convictions and the instant 

matter was his fifth parole violation, four of which involved his being charged 

with new crimes. In addition, while on adult supervision, Appellant failed to 

follow through with court-mandated evaluations or treatments and instead 

continued to use illegal drugs revealing “a myriad of rule violations, defiant 

and noncompliant behavior.” Id. at 5. After detailing the above, the 

sentencing court stated the following before handing down its 

aforementioned sentence: 

I have considered the extremely comprehensive and 

detailed PSI, the character of [Appellant], arguments of his 

counsel. In light of [Appellant’s] utter refusal or inability to 

comply with the terms and conditions of probation or parole that 

this Court has imposed upon him, total confinement is warranted 

and, indeed, essential to vindicate the authority of the Court.

Conduct of [Appellant] indicates it is not just probable but 

it appears to be absolutely certain he will commit more crimes if 

given another sentence of probation or partial confinement.

Probation has proven to be an ineffective vehicle to 

accomplish rehabilitation and an insufficient deterrent against 

further antisocial behavior. Incarceration is warranted because a 

lesser sentence would depreciate the seriousness of the 

underlying crimes and his ongoing defiance of this Court and I 

believe he is in need of treatment which can be most effectively 
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provided by his commitment to an institution in a noncommunity setting. 

Id. at 5-6. The sentencing court proceeded to resentence Appellant as 

follows: 

On 4371 of 2009, 7 to 15 years, SCI, but credit for 1,489 

days; on 5240 of 2012, two and a half to five years, SCI, credit 

for 559 days; on 5642 of 2013, Count 2, two and a half to five 

years, SCI, credit for 520 days; on 2550 of 2013, unexpired 

balance of the max sentence but paroled immediately without 

petition to the detainer of the state sentences.

This sentence is concurrent with the state sentence 

received on Chester County Docket 2669 of 2014.

[Appellant] is to be made eligible for any drug and alcohol, 

psychological, educational and/or vocational programs at his 

assigned SCI, and a copy of the presentence investigation will be 

delivered to his assigned SCI and made part of this record as 

well. 

Id. at 6. 

Appellant filed a counselled post sentence motion on June 12, 2015, 

and the sentencing court denied the motion on June 15, 2015. Appellant 

filed a timely notice of appeal on July 8, 2015, and on that same day, the 

sentencing court filed its Order pursuant to Pa.R.A.P. 1925. On July 29, 

2015, appellate counsel filed his “Statement of Intent to File 

Anders/McClendon Brief In Lieu of Statement of Errors Complained of on 

Appeal pursuant to Pa.R.A.P. 1925(c)(4).” Anders v. California, 386 U.S. 

738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In its 

Answer filed on August 5, 2015, the Commonwealth indicated it would not 

be filing a substantive response. 
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In its Order of August 7, 2015, upon consideration of counsel’s having 

filed pursuant to Pa.R.A.P. 1925(c)(4) a Statement of Intent to File 

Anders/McClendon Brief in Lieu of Statement of Errors Complained of on 

Appeal and the Commonwealth’s response thereto, the sentencing court 

directed the Clerk of Courts to transmit the record to this Court. 

Appellate counsel filed his petition for leave to withdraw as counsel 

and Anders brief on November 16, 2015.3 We first consider that petition. 

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). Before counsel is 

permitted to withdraw, he or she must meet the following 

requirements:

First, counsel must petition the court for leave to 

withdraw and state that after making a conscientious 

examination of the record, he has determined that the 

appeal is frivolous; second, he must file a brief 

referring to any issues in the record of arguable merit; 

and third, he must furnish a copy of the brief to the 

defendant and advise him of his right to retain new 

counsel or to himself raise any additional points he 

deems worthy of the Superior Court's attention.

Santiago, 602 Pa. at 178–79, 978 A.2d at 361.

FN2

FN2. The requirements set forth in Santiago apply to cases 

where the briefing notice was issued after August 25, 2009, the 

date the Santiago opinion was filed. As the briefing notice in 

this case was issued after Santiago was filed, its requirements 

are applicable here.

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3

In response, on November 25, 2015, the Commonwealth informed this 

Court it would not be filing a brief herein. 
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Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012).

Herein, we have reviewed counsel’s petition for leave to withdraw, 

counsel’s correspondence wherein he summarized the issues he believed 

Appellant wished to raise on appeal and advised Appellant of his absolute 

right to proceed pro se or with privately retained counsel, and the Anders

brief counsel prepared.4 These documents satisfy us that counsel has 

complied with all of the foregoing requirements. We, therefore, turn to the 

issues of arguable merit counsel presented in his Anders brief to make an 

independent judgment as to whether the appeal is, in fact, wholly frivolous. 

Santiago, supra.

Appellant first questions whether his aggregate sentence of seven 

years to fifteen years’ incarceration was excessive. This issue concerns a 

challenge to the discretionary aspects of Appellant’s sentence. A challenge 

to the discretionary aspects of sentencing does not entitle an appellant to 

review as of right. Commonwealth v. Allen, 24 A.3d 1058, 1064 

(Pa.Super. 2011) An appellant challenging the discretionary aspects of his 

sentence must invoke this Court's jurisdiction by satisfying a four-part test: 

(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) 

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4 Appellant has not responded to the application to withdraw as counsel.
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whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f);5and (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). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006).

Although counsel has not included the requisite Pa.R.A.P. 2119(f) 

statement in his Anders brief herein, “[w]here counsel files an Anders

brief, this Court has reviewed the matter even absent a separate Pa.R.A.P. 

2119(f) statement. Hence, we do not consider counsel's failure to submit a 

Rule 2119(f) statement as precluding review of whether Appellant's issue is 

frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super. 

2015) (citations omitted). In addition, a determination of what constitutes a 

substantial question must be evaluated on a case-by-case basis and such 

question exists only when an appellant advances a colorable argument that 

the sentencing judge's actions were either inconsistent with a specific 

provision of the Sentencing Code or contrary to the fundamental norms 

underlying the sentencing process. Commonwealth v. Prisk, 13 A.3d 526, 

533 (Pa.Super. 2011).

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5

In pertinent part, this Rule requires an appellant challenging the 

discretionary aspects of his sentence to set forth in his brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of the sentence; such statement shall immediately 

precede the argument on the merits. Pa.R.A.P. 2119(f).
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Upon revoking one’s probation, a sentencing court may choose from 

any of the sentencing options that existed at the time of the original 

sentencing, including incarceration. 42 Pa.C.S.A. § 9771(b). However, the 

imposition of total confinement upon revocation requires a finding that the 

defendant has been convicted of another crime, his conduct indicates it is 

likely he will commit another crime if he is not imprisoned, or such a 

sentence is essential to vindicate the court’s authority of the court. 42 

Pa.C.S.A. § 9771(c). Section 9721, which governs sentencing generally, 

provides that in all cases where the court “resentences an offender following

revocation of probation ... the court shall make as a part of the record, and 

disclose in open court at the time of sentencing, a statement of the reason 

or reasons for the sentence imposed.” Id. Failure to comply with these 

provisions “shall be grounds for vacating the sentence or resentence and 

resentencing the defendant.” Id. Additionally, this Court has noted that the 

reasons stated for a sentence imposed should reflect the sentencing court's 

consideration of the criteria of the Sentencing Code, 42 Pa.C.S.A. § 9701 et 

seq., the circumstances of the offense, and the character of the offender. 

Commonwealth v. DeLuca, 418 A.2d 669, 670 (Pa.Super. 1980). 

Upon our review of the sentencing transcript and as the above-quoted 

language therefrom evinces, we find the sentencing court appropriately 

detailed on the record its reasons for sentencing Appellant as it did. It had 

the benefit of a detailed PSI report and heard defense counsel’s arguments. 
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It considered Appellant’s bipolar diagnosis and juvenile adjudication history. 

It found particularly troubling Appellant’s inability to abide by the terms and 

conditions of his probation and parole in the past and the violent nature of 

his crimes, especially those which led to the instant violation. Therefore, we 

find no merit to any claim under these circumstances that Appellant’s 

sentence was excessive. 

Appellate counsel further directs this Court’s attention to the 

sentencing court’s failure to advise Appellant of his appeal rights on the 

record. Instead, it directed defense counsel to “please take an opportunity 

to explain to your client his rights to appeal after today.” N.T., 6/5/15, at 

7. A sentencing court must inform a defendant that an appeal must be filed 

within thirty days of the entry of its order. See generally Pa.R.Crim.P. 

704(c) (dealing with a trial court's duty to inform the defendant of his postsentencing and appellate rights and the time within which such rights must 

be exercised); See also Commonwealth v. Wright, 846 A.2d 730, 735 

(Pa.Super. 2004). While the sentencing court failed to apprise Appellant of 

these rights on the record, defense counsel indicated it would inform 

Appellant thereof and, in fact, filed a timely post sentence motion and notice 

of appeal on Appellant’s behalf. As such, the trial court’s failure to articulate 

Appellant’s appellate rights on the record and request that defense counsel 

do so clearly did not prejudice Appellant. 
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Consequently, after an independent review of this appeal, we find 

Appellant's issues to be frivolous, and we grant counsel's petition to 

withdraw.

Petition to Withdraw Granted. Judgment of Sentence Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2016