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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH TODD, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2366 EDA 2018

Appeal from the Judgment of Sentence Entered, June 22, 2015,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0012129-2014.

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 15, 2019

Kenneth Todd appeals from the judgment of sentence imposed following 

his conviction of robbery1 and aggravated assault.2 Additionally, Todd’s 

counsel filed a petition to withdraw as counsel and an accompanying brief 

pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We grant 

counsel’s petition, and affirm Todd’s judgment of sentence.

On July 25, 2014, at approximately 10:30 p.m., Todd entered an

apartment located at 1318 Pine Street and found Maryanne McHenry inside. 

When Todd entered, he yelled at McHenry, asking, “Where’s the money, 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3701(a)(1)(ii)

2 18 Pa.C.S.A. § 2702(a)(1).
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Bitch?” N.T., Guilty Plea, 6/22/2015, at 9. Todd approached McHenry, 

grabbed her throat, and strangled her with one hand. With his other hand, 

Todd delivered one punch to McHenry’s face, leaving her unconscious. When 

McHenry regained consciousness, she called 9-1-1. McHenry was transported 

to a local hospital and treated for a right orbital facture, bleeding on the brain, 

loss of a tooth, and a laceration on her mouth that required 24 stitches. As a 

result of these injuries, McHenry lost feeling on one side of her face, and lost 

the ability to taste on one side of her mouth. McHenry also had to wear an 

eye patch for five months. 

Philadelphia police detectives processed the scene at the apartment and 

secured latent finger prints, which were later confirmed as Todd’s. 

Additionally, the detectives showed McHenry an eight-person photo array, and 

she identified Todd as her assailant. Further, Louis Black, the owner of the 

apartment, notified detectives that an Apple laptop was missing from the 

property. McHenry confirmed that the laptop was in the apartment before 

Todd entered. 

Police arrested Todd and charged him with robbery, aggravated assault, 

and other related offenses. On June 22, 2015, Todd waived his right to a jury 

trial, and pled guilty to robbery and aggravated assault, both felonies of the 

first degree. That same day, the trial court sentenced Todd to an aggregate 

term of fifteen to thirty years of incarceration.

Todd did not file a direct appeal, nor any post-sentence motions. Todd 

filed a timely pro se petition pursuant to the Post Conviction Relief Act
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(“PCRA”).

3

 The court appointed counsel, who filed an amended PCRA petition 

alleging that Todd’s prior counsel failed to file a direct appeal at Todd’s 

request. As a result of that filing, the PCRA court reinstated Todd’s direct 

appeal rights, nunc pro tunc.

Thereafter, Todd filed a timely notice of appeal. The trial court ordered 

Todd to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. In response, counsel filed a statement of intent to file an Anders

brief. Given that neither counsel nor Todd raised any claim of error before 

the trial court, the trial court declined to file an opinion pursuant to Pa.R.A.P. 

1925(a). 

In this Court, counsel filed a petition to withdraw as counsel and an 

accompanying Anders brief. In the Anders brief, counsel raises the following 

issues that might arguably support Todd’s appeal:

1. Was [Todd’s] guilty plea valid?

2. Was [Todd] competent to enter a plea?

3. Was [Todd’s] sentence legal?

Anders Brief at 6.

“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) (citation omitted). Pursuant to Anders, when counsel 

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3 42 Pa.C.S.A. §§ 9541-9546.
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believes an appeal is frivolous and wishes to withdraw from representation, 

she must do the following:

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record, counsel has 

determined the appeal would be frivolous; (2) file a brief referring 

to any issues that might arguably support the appeal, but which 

does not resemble a no-merit letter; and (3) furnish a copy of the 

brief to the defendant and advise him of his right to retain new 

counsel, proceed pro se, or raise any additional points he deems 

worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), our Supreme Court addressed the second requirement of Anders, i.e., 

the contents of an Anders brief, and required that the brief:

(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. Once counsel has satisfied the Anders requirements, it is then this Court’s 

responsibility “to conduct a simple review of the record to ascertain if there 

appear on its face to be arguably meritorious issues that counsel, intentionally 
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or not, missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266, 

272 (Pa. Super. 2018). 

Here, counsel has complied with each of the requirements of Anders. 

Counsel indicates that she conscientiously examined the record and 

determined that an appeal would be frivolous. Further, the Anders brief 

comports with the requirements set forth by our Supreme Court in Santiago. 

Finally, the record includes a copy of the letter that counsel sent to Todd, 

advising him of his right to proceed pro se or retain alternate counsel to file 

additional claims. Counsel also stated her intention to seek permission to 

withdraw in the letter.4 Accordingly, counsel has complied with the procedural 

requirements for withdrawing from representation, and we will conduct an 

independent review to determine whether Todd’s appeal is wholly frivolous.

The first issue raised in the Anders brief addresses whether Todd

knowingly, voluntarily, and intelligently entered his guilty plea. The second 

issue addresses whether Todd was competent to enter a guilty plea. Because 

both of these issues implicate the validity of Todd’s guilty plea, for ease of 

disposition, we will address them together. Prior to analyzing the merits of 

these issues, we must first determine whether they have been preserved for 

our review.

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4 Todd did not file a response to the Anders brief.
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A defendant wishing to challenge the validity of a guilty plea on appeal 

must either object during the plea colloquy or file a motion to withdraw the 

plea within ten days of sentencing. See Pa.Crim.R.P. 720(A)(1), (B)(1)(a)(i). 

Failure to employ either measure results in waiver. Pennsylvania courts 

adhere to this waiver principle because it is for the court which accepted the 

plea to consider and correct, in the first instance, any error which may have 

been committed. See Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. 

Super 2013); see also Commonwealth v. Tarelia, 895 A.2d 1266, 1270 

n.3 (Pa. Super. 2006) (explaining that in order to preserve an issue related to 

the guilty plea, an appellant must either object at the sentence colloquy or 

otherwise raise the issue at the sentencing hearing or through a post-sentence 

motion); see also Pa.R.A.P. 302(a) (stating that ”[i]ssues not raised in the 

lower court are waived and cannot be raised for the first time on appeal”).

Because Todd failed to raise any issues regarding the validity of his plea 

before the trial court during the plea colloquy, at the sentencing hearing, or 

in a post-sentence motion to withdraw his plea,5 we conclude that Todd’s 

challenges to the validity of his guilty plea are waived. 

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5 We note that although the PCRA court reinstated Todd’s direct appeal rights 

nunc pro tunc, the court did not reinstate his right to file post-sentence 

motions, and such a right is not automatic. See Commonwealth v. Liston, 

977 A.2d 1089, 1094 (Pa. 2009) (holding that a defendant’s right to file a 

post-sentence motion nunc pro tunc is not automatically reinstated when the 

court grants the right to file a notice of appeal nunc pro tunc). Moreover, 

even if the PCRA court’s reinstatement of Todd’s right to file a notice of appeal
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In his third issue, Todd challenges the legality of his sentence. Unlike 

challenges to the validity of the guilty plea, pursuant to 42 Pa.C.S.A. 

§ 9781(a), “[t]he defendant or the Commonwealth may appeal as of right the 

legality of the sentence.” See Commonwealth v. Foster, 960 A.2d 160, 

163 (Pa. Super. 2008) (holding that challenges to the legality of the sentence 

are non-waivable, and may be brought for the first time on appeal). 

In this case, Todd pled guilty to robbery and aggravated assault, both 

of which are felonies of the first degree. Pursuant to 18 Pa.C.S.A. § 1103(1), 

the maximum possible sentence for a felony in the first degree is twenty years 

of incarceration. The trial court sentenced Todd to ten to twenty years of 

incarceration for robbery, and a consecutive term of five to ten years of 

incarceration for aggravated assault. Because Todd’s sentences fall within the 

statutory maximum, the sentences are legal. Consequently, Todd’s challenge 

to the legality of his sentence would be wholly frivolous, as Todd does not 

raise, nor would the record support, any other potential challenges implicating 

the legality of his sentence.6

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nunc pro tunc encompassed his right to file a post-sentence motion nunc pro 

tunc, no such motions were filed.

6 To the extent that Todd’s claims implicate the discretionary aspects of his

sentence, any such claims were waived when Todd failed to raise an objection 

at sentencing or in a post-sentence motion to modify the sentence with the 

trial court. See Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa. Super. 

2006).
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Finally, our review of the record discloses no other non-frivolous issues 

that Todd’s counsel overlooked. Accordingly, we grant counsel’s petition to 

withdraw, and affirm the judgment of sentence.

Petition to withdraw granted, judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/19