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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

TREY GUNTER, 

Appellee 

Appellant No. 830 WDA 2016 

Appeal from the Judgment of Sentence entered February 9, 2016 

in the Court of Common Pleas of Erie County, 

Criminal Division, at No(s): CP-25-CR-0003499-2014. 

BEFORE: OLSON and RANSOM, JJ., and STEVENS,* P.J.E., 

MEMORANDUM BY RANSOM, J.: FILED MAY 08, 2017 

Appellant Trey Gunter appeals from the judgment of sentence of 

fifteen to forty years of imprisonment, imposed February 9, 2016, after he 

pleaded guilty to third-degree murder.' Appellant's counsel has filed a 

petition to withdraw, alleging that this appeal is wholly frivolous, 

accompanied by an Anders brief.2 We grant counsel's withdrawal petition 

and affirm the judgment of sentence. 

The trial court summarized the pertinent facts as follows: 

[Appellant's conviction stems] from an incident that 

occurred on November 17, 2014, at an apartment off -campus of 

' 18 Pa.C.S. § 2502(c). 

2 See Anders v. California, 386 U.S. 738 (1967). 

*Former Justice specially assigned to the Superior Court. 
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Edinboro University. Appellant, a Pittsburgh native, was an 

Edinboro student one semester away from graduating. The 

victim, Tobiah Johnson, had taken Appellant's gun several days 

earlier. Appellant obtained another gun, and, as alleged by the 

Commonwealth, with the help of Ryan Andrews and Michael 

Barron, confronted the victim outside of the victim's apartment. 

The Commonwealth further alleged that Mr. Barron was waiting 

outside of the victim's apartment, and that when the victim 

came out, Mr. Barron punched him in his head, knocking him to 

the ground. Appellant and Mr. Andrews got out of their vehicle 

and assaulted the victim. When the victim tried to get up, 

Appellant shot him in his back, killing him. 

Trial Court Opinion, 8/8/16, at 1-2. 

Following his arrest, the Commonwealth and Appellant's trial counsel 

reached a plea agreement, and Appellant completed a written plea colloquy 

form. The trial court conducted an oral colloquy with Appellant at an 

evidentiary hearing on September 23, 2015, and at its conclusion, the trial 

court accepted Appellant's plea as knowing, voluntary and intelligent. On 

February 9, 2016, the trial court sentenced Appellant as outlined above. The 

court denied Appellant's timely -filed motion to modify sentence. This appeal 

follows. Both Appellant and the trial court have complied with Pa.R.A.P. 

1925. 

Within her Anders brief, Appellant's counsel addresses the following 

issues Appellant wished to raise on appeal: 

A. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF 

DISCRETION IN ACCEPTING [APPELLANT'S] PLEA OF GUILTY 

WHEN [HE] DID NOT ENTER THE PLEA FREELY, KNOWINGLY 

AND INTELLIGENTLY? 

B. WHETHER [APPELLANT'S] SENTENCE IS MANIFESTLY 

EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT 

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WITH THE OBJECTIVE OF THE PENNSYLVANIA SENTENCING 

CODE? 

Appellant's Brief at 4. 

"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. Daniels, 999 A.2d 590, 593 (Pa. Super. 

2010). An Anders brief shall comply with the requirements set forth by our 

Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009); 

[W[e 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. 

Id. at 361. 

Counsel seeking to withdraw on direct appeal must meet the following 

obligations to his or her client: 

Counsel also must provide a copy of the Anders brief to his 

client. Attending the brief must be a letter that advises the 

client of his right to: (1) retain new counsel to pursue the 

appeal; (2) proceed pro se on appeal; or (3) raise any points 

that the appellant deems worthy of the court[']s attention in 

addition to the points raised by counsel in the Anders brief. 

Commonwealth v. Oreliana, 86 A.3d 877, 880 (Pa. Super. 2014) 

(citations omitted). 

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Upon review of counsel's petition to withdraw, the supporting 

documentation, and her Anders brief, we conclude that counsel has satisfied 

the procedural requirements of Anders/Santiago. 

"Once counsel has satisfied the above requirements, it is then this 

Court's duty to conduct its own review of the trial court's proceedings and 

render an independent judgment as to whether the appeal is, in fact, wholly 

frivolous." Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 

2007) (en banc) (citation omitted). Finally, "this Court must conduct an 

independent review of the record to discern if there are any additional, non - frivolous issues overlooked by counsel." Commonwealth v. Flowers, 113 

A.3d 1246, 1250 (Pa. Super. 2015) (footnote and citations omitted). 

Appellant first asserts that he did not enter a knowing, voluntary, and 

intelligent guilty plea. He failed to raise the issue of the validity of his guilty 

plea either orally before the trial court or in a post -sentence motion. 

Accordingly, this issue is waived for purposes of appeal. See generally, 

Pa.R.Crim.P. 720(B); Commonwealth v. D'Collanfield, 805 A.2d 1244 

(Pa. Super. 2002). Moreover, absent waiver, our review of the record 

refutes Appellant's assertions that he was not informed of the elements of 

third-degree murder or the legal and factual basis for his guilty plea. See 

generally, Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011). 

In his second issue, Appellant challenges the discretionary aspects of 

his sentence. As we recently observed in Commonwealth v. McLaine, 150 

A.3d 70, 76 (Pa. Super. 2016) (citation omitted), "[a]n appellant is not 

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entitled to the review of challenges to the discretionary aspects of a 

sentence as a matter of right." Instead, to invoke our jurisdiction involving 

a challenge to the discretionary aspects of a sentence, an appellant must 

satisfy the following 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) 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. 

Because Appellant's has met the first three requirements, we must 

determine whether he has raised a substantial question. The presence of a 

substantial question is determined on a case -by -case basis and only exists 

when the appellant advances a colorable argument that the sentencing 

judge's actions were either: (1) inconsistent with a specific provision of the 

Sentencing Code; or (2) contrary to the fundamental norms which underlie 

the sentencing process. Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa. 

Super. 2016) (citations omitted). 

Although Appellant acknowledges that he received a standard -range 

minimum sentence, he essentially argues that the trial court did not properly 

consider the sentencing factors found at 42 Pa.C.S. § 9721, because it 

imposed a lengthy sentence despite his presentation of many mitigating 

factors. An argument that the sentencing court failed to consider mitigating 

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factors in favor of a lesser sentence does not present a substantial question 

appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254, 

1257-58 (Pa. Super. 2004) (citing Commonwealth v. McNabb, 819 A.2d 

54, 57 (Pa. Super. 2003)). 

Sentencing is a matter vested in the sound discretion of the sentencing 

court, and a sentence will not be disturbed on appeal absent a manifest 

abuse of discretion, which in this context, is not shown merely by an error in 

judgment; rather the appellant must establish by reference to the record, 

that the sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a 

manifestly unreasonable decision. Commonwealth v. Shull, 148 A.3d 820 

(Pa. Super. 2016). 

Even if we were to find a substantial question to exist, we would 

conclude that the trial court adequately explained at sentencing why it chose 

a lengthy sentence despite Appellant's evidence of mitigation. 

As sentencing, the trial court stated: 

THE COURT: All right. I have considered the statements 

of counsel. I've considered the references of character, the 

record of those in attendance. As stated previously, I have 

thoroughly read the Pennsylvania Commission on Sentencing 

Guidelines and I have read the pre -sentence investigative report. 

I have made it a part of the record. I have spent exhaustive 

time going through your prior history, [Appellant] through the 

Allegheny Office of Children and Youth and Families. I have also 

read extensively and incorporated your entire sentencing 

memorandum as advocated by [trial counsel], and I've also 

considered the government's comments in balance, including 

their sentencing memorandum. 

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So here's what I am left with. I do have to consider the 

nature of the offense, the gravity, the need for public protection, 

the chances of rehabilitation, several of the other factors as 

outlined by [trial counsel]. Those are all fair. But I do have a lot 

of discretion here. Let me first start by telling you there is no 

chance you're getting a sentence in the mitigated range. I was 

perhaps open to the idea until I heard further from you. You are 

not committed to living a crime -free life. Somehow, somewhere, 

you appear to me to be beholden to this whole arena of, I think, 

gun violence, gun use, and to some extent, drug use. You had 

an opportunity to explain the texts that were attributed to your 

phone. As a former local and federal prosecutor, and as a Judge 

now in my fourteenth year, there is no question what is going on 

in those messages. And it is at a time that is within three days 

of this murder. 

Also, I've considered your level of remorse. I'm not 

completely convinced how remorseful you are, because if you 

were, you would have thought about the consequences of not 

only the gun that was stolen from you being in the hands of 

perhaps [the victim] or perhaps others in the Edinboro 

community, but also the whereabouts of a 9 millimeter, the 

murder weapon, if you will, and where that ended up. And we 

still don't have that accounted for. Those are very concerning 

elements to me. 

N.T., 2/9/16, at 104-106. 

After imposing costs and restitution, and declining to impose a fine, 

the trial court then stated: 

I believe that a standard range sentence is appropriate 

and it will be as follows: There will be a minimum 

sentence of fifteen years to a maximum of forty years. 

I will consider any request based upon your conduct in 

prison as to whether or not you will be and can be 

persuaded to be released after serving your minimum, but 

that is a matter of state parole review. You see, 

[Appellant], you held the keys to your sentence and you 

refused to turn the lock. And I am convinced this is the 

least restrictive way to accomplish the sentencing factors 

that are before me. 

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Id. at 106-107. 

In arguing an abuse of discretion, Appellant essentially asks this court 

to reweigh the legitimate sentencing factors presented. This we cannot do. 

See Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing 

Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en 

banc) (explaining that an allegation that the sentencing court did not 

adequately consider various factors is, in effect, a request that this Court 

substitute its judgment for that of the trial court in fashioning a defendant's 

sentence); see also Commonwealth v. Fullin, 892 A.2d 843, 849-580 

(Pa. Super. 2006) (where the sentencing court had the benefit of a pre - sentence investigation report, we can assume the sentencing court was 

aware of relevant information regarding the defendant's character and 

weighed those considerations along with mitigating statutory factors). 

Thus, given the above, we agree with counsel's assessment that the 

issues Appellant wished to raise on appeal are frivolous. Moreover, our 

independent review of the record reveals no other non -frivolous issue. We 

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

of sentence.3 

3 Given this disposition, we deny Appellant's pro se motion for remand 

without prejudice to his ability to raise his claim of newly -discovered 

evidence in post -conviction proceedings. 

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Petition to withdraw granted. Motion for Remand denied. Judgment of 

sentence affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 5/8/2017 

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