J-S74037-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JOHNNY DEMOND FOSSETT,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1424 EDA 2014

Appeal from the Judgment of Sentence Entered December 16, 2013

in the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0001410-2012 

BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 25, 2015

Johnny Demond Fossett (Appellant) appeals from his aggregate 

judgment of sentence of 27 to 65 years of imprisonment after pleading 

guilty to third-degree murder, robbery, theft, and unlawful restraint.1 In 

addition, Appellant’s counsel has filed a petition to withdraw and a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we 

grant the petition to withdraw and affirm the judgment of sentence.

The trial court offered the following summary of the facts of this case.

On January 15, 2012, Appellant caused the death of the 

victim, Lori Jefferson, in her home located in Springfield 

Township, Montgomery County. In the midst of an argument 

between Appellant and the victim, Appellant choked the victim. 

Appellant bound the victim’s hands and feet behind her back 

 

1 18 Pa.C.S. §§ 2502(c), 3701(a), 3921(a), and 2902(a), respectively. 
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with a cord and placed a gag in her mouth. Appellant left the 

victim in that condition alone in the second floor bedroom. 

Appellant stole the victim’s 2007 Volvo and drove to Philadelphia 

County and turned himself in.

On December 16, 2013, a sentencing hearing was 

conducted before the [trial court]. At the hearing, defense 

counsel presented the testimony of Dr. Alan Tepper, an expert in 

forensic and clinical psychology. Dr. Tepper performed a 

psychological evaluation of Appellant. As part of his evaluation, 

Dr. Tepper met with Appellant on two occasions at the 

Montgomery County jail. Prior to and subsequent to meeting 

with Appellant, Dr. Tepper reviewed discovery materials related 

to the criminal matter and past mental health records from 

Florida, Pennsylvania and from [the] Montgomery County 

Correctional Facility. Dr. Tepper noted that just prior to the date 

of the criminal incident, from September to December of 2011, 

Appellant was treated inpatient at various facilities and was seen 

at various emergency rooms for mental health issues.

In addition to a review of the records, Dr. Tepper 

performed testing. He first performed intelligence, achievement 

and projective testing with Appellant. On the intelligence test, 

the Wechsler Abbreviated Scale of Intelligence, Dr. Tepper 

reported that Appellant received an IQ score of 75, which is 

between the mid-level of the borderline mental retardation range 

to the low level of average. Dr. Tepper also performed a reading 

subtest, the Wide Range Achievement Test, Fourth Edition, on 

which Appellant received a 34 percentile ranking. Dr. Tepper 

opined that together these scores reflect that Appellant 

“possesses somewhat limited or modest intellectual abilities. He 

is able to function on an everyday basis.” However, he further 

opined that Appellant’s higher level problem solving and decision 

making thought is inhibited.

Dr. Tepper also performed clinical testing, including clinical 

interviewing, the record review and a Sentence Completion Test. 

On the day of testing, Dr. Tepper reported that Appellant was 

coherent and he was able to engage in a give-and-take dialogue. 

He had good reality testing. Dr. Tepper reported that through 

the years, Appellant had received a number of different 

diagnoses, “a somewhat severe category of either psychosis or 

schizophrenia.” Most recently, Appellant had been diagnosed 

with schizo-effective disorder, a cognitive and emotional 
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disorder. According to Dr. Tepper, this means that Appellant has 

difficulties with emotions, a lot of past depression, selfdestructive or suicidal tendencies and problems with disordered 

and confused thinking.

Defense counsel asked the doctor how Appellant’s 

intellectual disability and his mental illness affect his ability to 

think under stressful situations. Dr. Tepper opined that stress 

could combine to enhance his somewhat modest ability to think 

about things, problem solve, get along, make decision[s] and 

stay stable.

The Commonwealth presented the testimony of Emma 

Jean Jefferson, the victim’s mother. Ms. Jefferson read her 

victim impact statement. In her statement, she told [the trial 

court] how her life and happiness, and that of the victim’s son 

had changed forever. She explained that her daughter was the 

center of her life, and without her daughter there is such a pain 

and hole in her heart.

***

With the benefit of a PPI evaluation, a pre-sentence 

investigation and report, letters of support submitted on behalf 

of [Appellant] and the numerous victim impact letters, this Court 

imposed on the third degree murder conviction a term of 17 1⁄2 

to 40 years, on the robbery conviction a term of 8 1⁄2 to 20 years’ 

imprisonment and on the unlawful restraint conviction, a term of 

1 to 5 years. [The theft conviction merged with robbery for 

sentencing purposes.] The sentences were imposed 

consecutively, combining to make an aggregate sentence of 27 

to 65 years’ imprisonment.

Trial Court Opinion, 6/19/2014, at 1-4 (citations and footnotes omitted).

A timely post-sentence motion was filed on December 18, 2013. That 

motion asked for reconsideration of Appellant’s sentence because the trial 

court failed to consider certain mitigating circumstances. Appellant also 

requested that sentences for the third-degree murder conviction and the 

robbery conviction run concurrently. The motion was neither served by 
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counsel on the trial court nor forwarded to the trial court by the Clerk of 

Courts. Thus, the motion subsequently was denied by operation of law 

pursuant to Pa.R.Crim.P. 720(B)(3)(a), and an order was entered to this 

effect on April 28, 2014. A timely appeal followed on May 7, 2014. 

Appellant’s counsel complied with the trial court’s order to file a concise 

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

The trial court issued an opinion. On appeal, counsel has filed an Anders

brief and a petition for leave to withdraw as counsel.

The following principles guide our review of this matter:

Direct appeal counsel seeking to withdraw under Anders must 

file a petition averring that, after a conscientious examination of 

the record, counsel finds the appeal to be wholly frivolous. 

Counsel must also file an Anders brief setting forth issues that 

might arguably support the appeal along with any other issues 

necessary for the effective appellate presentation thereof....

Anders counsel must also provide a copy of the Anders 

petition and brief to the appellant, advising the appellant of the 

right to retain new counsel, proceed pro se or raise any 

additional points worthy of this Court's attention.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions 

(e.g., directing counsel either to comply with Anders or file an 

advocate's brief on Appellant's behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our 

own review of the appeal to determine if it is wholly frivolous. If 

the appeal is frivolous, we will grant the withdrawal petition and 

affirm the judgment of sentence. However, if there are nonfrivolous issues, we will deny the petition and remand for the 

filing of an advocate's brief.
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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007) 

(citations omitted).

Our Supreme Court has clarified portions of the Anders procedure:

Accordingly, we hold 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.

Santiago, 978 A.2d at 361.

Based upon our examination of counsel’s petition to withdraw and 

Anders brief, we conclude that counsel has substantially complied with the 

above requirements.2 Once “counsel has met these 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.’” Commonwealth v. Flowers, 2015 

PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015), 

quoting, Santiago, 978 A.2d at 354 n. 5.3 

 

2 Appellant has not filed a pro se response raising any additional points for 

our consideration. 

3

 Speaking for myself only and not as the conduit of this Court’s decision, 

see Commonwealth v. King, 57 A.3d 607, 633 n. 1 (Pa. 2012) (Saylor, J., 

concurring) (discussing the precedent for a special concurrence by the 

author of the majority opinion), I acknowledge that the law of this 

Commonwealth now provides that this Court, when confronted with an 
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Anders counsel presents this Court with one issue that may support 

this appeal: “Did the trial court manifestly abuse its discretion when it 

sentenced Appellant to an aggregate term of twenty-seven (27) to sixty-five 

(65) years in prison following Appellant’s open guilty plea?” Appellant’s Brief 

at 5. 

 

Anders brief, must comb the record in search of issues of arguable merit 

that were not raised by counsel. See Commonwealth v. Flowers, 2015 

PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015) 

(“[T]he reviewing court must make certain that appointed counsel has not 

overlooked the existence of potentially non-frivolous issues.”). I write 

separately to reiterate my disagreement with that opinion’s holding as to 

this Court’s duty. 

We accept in all other criminal cases that counsel has put forth the 

appropriate issues and arguments and, if not, that the PCRA is available to 

the defendant for obtaining relief. See, e.g., Commonwealth v. Koehler, 

914 A.2d 427, 438 (Pa. Super. 2006) (“[I]t is not this Court’s duty to 

become an advocate for an appellant and comb through the record to assure 

the absence of trial court error.”). In an Anders case, to “vindicate[] the 

right to counsel” by “safeguard[ing] against a hastily-drawn or mistaken 

conclusion of frivolity[,]” Santiago, 978 A.2d at 361, our Supreme Court 

has added the additional protection of requiring the attorney to certify and 

demonstrate his or her thorough review of the record and applicable law 

before we will allow counsel to withdraw.

Now, under Flowers, this Court not only can, but must, effectively act 

as an advocate for a criminal defendant whose counsel seeks to withdraw. 

Not only does this render meaningless counsel’s efforts under Santiago, but 

it results in the unnecessary, unwarranted, and patently unfair disparate 

treatment of criminal defendants by this Court. See id. at *5 (Strassburger, 

J., dissenting) (quoting Commonwealth v. Washington, 29 A.3d 846 (Pa. 

Super. 2011) (Colville, J., concurring, unpublished memorandum at 6) 

(“[T]he purpose of Anders is to provide equal, not extra, representation to 

indigent defendants, regardless of their counsel’s assessment of the merits 

of their appeals.”). 
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This question set forth by counsel challenges the discretionary aspects 

of Appellant’s sentence.4 Accordingly, we bear in mind the following.

A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to 

pursue such a claim is not absolute. Two requirements must be 

met before we will review this challenge on its merits. First, an 

appellant must set forth in his brief a concise statement of the 

reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence. Second, the appellant must 

show that there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing Code. The 

determination of whether a particular issue raises a substantial 

question is to be evaluated on a case-by-case basis. In order to 

establish a substantial question, the appellant must show actions 

by the trial court inconsistent with the Sentencing Code or 

contrary to the fundamental norms underlying the sentencing 

process.

Commonwealth v. Bowen, 55 A.3d 1254, 1262-63 (Pa. Super. 2012), 

appeal denied, 64 A.3d 630 (Pa. 2013) (quoting Commonwealth v. 

McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)). 

Appellant’s brief contains a statement of the reasons upon which he 

relies for allowance of appeal as to the discretionary aspects of his sentence. 

Appellant’s Brief at 17-18. Therein, Appellant concedes that each sentence 

imposed is within the standard range recommended by the sentencing 

guidelines. However, he goes on to claim that the trial court “totally ignored 

mitigating evidence” and claims that the imposition of consecutive sentences 

all but guaranteed that Appellant would spend the rest of his life in jail, 

 

4 Because the plea agreement was open as to his sentence, Appellant is not 

precluded from challenging the discretionary aspects of sentencing. See 

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009).
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which raises his aggregate sentence to an excessive level. Id. We consider 

these claims together.

It is well-established that a sentencing court’s failure to 

consider mitigating factors raises a substantial question. See 

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 

2003). However, a sentencing court generally has discretion to 

impose multiple sentences concurrently or consecutively, and a 

challenge to the exercise of that discretion does not ordinarily 

raise a substantial question. Commonwealth v. Pass, 914 A.2d 

442, 446–47 (Pa. Super. 2006); Commonwealth v. Hoag, 

[665 A.2d 1212, 1214 (Pa. Super. 1995)] (stating that an 

appellant is not entitled to a “volume discount” for his crimes by 

having his sentences run concurrently).

We are mindful, however, that “the key to resolving the 

preliminary substantial question inquiry is whether the decision 

to sentence consecutively raises the aggregate sentence to, what 

appears upon its face to be, an excessive level in light of the 

criminal conduct at issue in the case.” Commonwealth v. 

Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). An 

appellant making an excessiveness claim raises a substantial 

question when he “sufficiently articulates the manner in which 

the sentence violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process.” 

[Commonwealth v. ]Mouzon, 812 A.2d [617, 627 (Pa. 2002)]. 

Applying Mouzon, this Court has held that an excessive 

sentence claim—in conjunction with an assertion that the court 

failed to consider mitigating factors—raises a substantial 

question. Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. 

Super. 2005). Because we interpret [appellant’s] arguments as 

raising substantial questions under both Felmlee and 

Mastromarino, we grant [appellant’s] petition for allowance of 

appeal and consider the merits of his claim.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).

Thus, because Appellant argues that the trial court erred in failing to 

consider mitigating factors in conjunction with an excessiveness claim, 

Appellant has raised a substantial question. 
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Instantly, Appellant choked, bound, and gagged the victim, who was 

his girlfriend, and left her alone in a second-floor bedroom where she died. 

Appellant then stole her television and car and fled. At sentencing, 

Appellant presented the testimony of Dr. Alan Tepper, a clinical psychologist. 

Dr. Tepper testified that Appellant’s IQ fell in below the low-average range. 

N.T., 12/16/2013 at 12. Dr. Tepper further testified that Appellant suffered 

from schizo-affective disorder, which is characterized as having difficulty 

with emotions, including past depression. Id. at 14. According to Dr. 

Tepper, Appellant’s mental disorder further compromised his already limited 

problem solving ability. Id. at 15. 

Contrary to Appellant’s claim, the trial court did consider this 

mitigating testimony when it stated its reasons on the record for the 

sentence imposed.

As we know, there is a long history of mental illness. First, 

diagnosed at age ten. [Medications] were tried. There [were] 

hospitalizations at various times.

[Appellant] does have combined with his mental health 

problems some substance abuse issues. He has in the past used 

crack cocaine, marijuana and drinking of alcohol.

What we have here is the extreme act of violence with 

multiple layers to it. When one considers the choking, the 

binding, the gagging, these things were just horrible for Lori 

Jefferson to have experience[d] individually, and much more 

magnified collectively. We then have the stealing of the Volvo 

after that, and the significant criminal history I already referred 

to, most significant being the prior robbery in Florida, which is 

an extreme act of violence in and of itself even when death is 

not cause[d].
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Quite frankly, I do not find mitigation in this case, even 

though I have considered his mental status and the testimony of 

his witness today.

Trial Court Opinion, 6/19/2014, at 8 (citing N.T., 12/16/2013, at 38-39.

We cannot say that imposing consecutive standard range sentences, 

resulting in a sentence of 27 to 65 years’ incarceration, was manifestly 

excessive or unduly harsh in light of this conduct. Moreover, the trial court 

clearly considered the mitigating evidence and rejected it in this case. Thus, 

we hold the trial court did not abuse its discretion and conclude that 

Appellant’s issue challenging the discretionary aspects of sentencing is 

frivolous. Moreover, we have conducted a “a full examination of the 

proceedings” and conclude that “the appeal is in fact wholly frivolous.” 

Flowers, 2015 PA Super 69, 2015 WL 1612010 at *2. Thus, we permit 

counsel to withdraw. 

Judgment of sentence affirmed. Petition for leave to withdraw as 

counsel granted.

P.J.E. Bender concurs in the result.

Judge Donohue concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/25/2015
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