J-S36019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JOSHUA RYAN BREHM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1463 WDA 2021

Appeal from the Judgment of Sentence Entered July 1, 2021

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0000097-2020

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: APRIL 21, 2023

Appellant, Joshua Ryan Brehm, appeals from the judgment of sentence

entered in the Cambria County Court of Common Pleas, following his jury trial 

convictions for two counts each of possession of a controlled substance and

possession of a controlled substance with the intent to deliver (“PWID”), and 

one count of criminal use of a communication facility.

1

 We affirm and grant 

counsel’s petition to withdraw. 

The relevant facts and procedural history of this case are as follows. 

The Commonwealth charged Appellant with the aforementioned offenses in 

connection with the sale of narcotics to a confidential informant (“CI”). At a 

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16), (30); 18 Pa.C.S.A. § 7512(a), respectively.
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jury trial on June 8, 2021, Detective Tom Keirn testified that he was working 

with a CI who identified Appellant as an individual from whom he could 

purchase drugs. The CI contacted Appellant by phone and arranged to meet 

at a shopping plaza to purchase heroin for seventy dollars ($70.00). Prior to 

meeting Appellant, police searched the CI to ensure that he did not have 

contraband on his person. Detective Keirn was surveilling the transaction and 

saw Appellant approach the CI at the agreed upon location and exchange 

drugs for money. Immediately thereafter, the CI returned to the police vehicle 

and the officers took possession of the drugs that were purchased. 

The CI testified that he worked with Detective Keirn to set up a 

controlled buy from Appellant. The CI confirmed that he set up the sale over 

the phone and recognized Appellant’s voice as the individual on the line. The 

CI testified that Appellant met him at the agreed upon location and exchanged 

drugs for money. The CI stated that he was wearing a recording device during 

the transaction, and the Commonwealth played the surveillance footage for 

the jury to corroborate his testimony. Additionally, an expert in the field of 

drug identification testified that the packet the CI purchased from Appellant 

contained heroin and fentanyl. 

At the conclusion of the evidence, the jury found Appellant guilty of 

PWID-heroin, PWID-fentanyl, possession of a controlled substance-heroin, 

possession of a controlled substance-fentanyl, and criminal use of a 

communication facility. On July 1, 2021, the court sentenced Appellant as 
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follows: 1) 33 to 66 months’ imprisonment for PWID-fentanyl; 2) 27 to 54 

months’ incarceration for PWID-heroin, to run concurrently with the sentence 

for PWID-fentanyl; 3) 18 to 36 months’ incarceration for criminal use of a

communication facility, to run concurrently with the sentence for PWIDfentanyl; and 4) no sentence for the simple possession convictions as a result 

of merger with the PWID convictions. Appellant filed a post sentence motion 

on July 12, 2021. In response, the court vacated the sentence imposed for 

PWID-heroin, finding that it merged with the sentence imposed for PWIDfentanyl. The court otherwise denied Appellant’s post trial motion on 

November 4, 2021. Appellant filed a timely notice of appeal on December 3, 

2021. On December 6, 2021, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied on December 27, 2021. 

Preliminarily, appellate counsel seeks to withdraw representation 

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). Anders and Santiago require counsel to: 1) petition the Court for 

leave to withdraw, certifying that after a thorough review of the record, 

counsel has concluded the issues to be raised are wholly frivolous; 2) file a 

brief referring to anything in the record that might arguably support the 

appeal; and 3) furnish a copy of the brief to the appellant and advise him of 

his right to obtain new counsel or file a pro se brief to raise any additional 
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points the appellant deems worthy of review. Santiago, supra at 173-79, 

978 A.2d at 358-61. Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 

2007). 

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw:

Neither Anders nor McClendon2requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To repeat, 

what the brief must provide under Anders are references 

to anything in the record that might arguably support the 

appeal. 

* * *

Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that arguably 

supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n 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 178-79, 978 A.2d at 361. After confirming that counsel has met the 

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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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antecedent requirements to withdraw, this Court makes an independent 

review of the record to confirm that the appeal is wholly frivolous. 

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also 

Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc). 

Instantly, appellate counsel has filed a petition to withdraw. The petition 

states counsel conducted a conscientious review of the record and determined 

the appeal is wholly frivolous. Counsel supplied Appellant with a copy of the 

brief and a proper letter explaining Appellant’s right to retain new counsel or 

proceed pro se to raise any additional issues Appellant deems worthy of this 

Court’s attention. In the Anders brief, counsel provides a summary of the 

facts and procedural history of the case and refers to relevant law surrounding 

Appellant’s issues. Counsel further states the reasons for his conclusion that 

the appeal is wholly frivolous. Therefore, counsel has substantially complied 

with the technical requirements of Anders and Santiago. 

Counsel raises the following issue on Appellant’s behalf: “Whether there 

are any nonfrivolous issues regarding the trial court’s decision to deny 

Appellant’s Post-Sentence Motion?” (Anders Brief at 2). Appellant filed a pro 

se response to the Anders brief challenging: (1) the sufficiency of the 

evidence; and (2) the discretionary aspects of his sentence. (See Appellant’s 
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Pro Se Response, filed 9/19/22, at 5-8).3 

Specifically, in his first issue, Appellant argues that the evidence was 

insufficient to sustain his convictions for simple possession and PWID of 

fentanyl because the Commonwealth failed to present any evidence that 

Appellant was aware there was fentanyl in the substance that he sold. 

In reviewing a challenge to the sufficiency of the evidence: 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In addition, 

we note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may 

be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

[trier] of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence. 

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal 

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v. 

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3

In the argument section of the Anders brief, counsel addresses the same 

issues raised in Appellant’s pro se response, namely, the sufficiency of the 

evidence and the discretionary aspects of sentencing. (See Anders Brief at 

6-10).
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Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)). 

The Controlled Substance, Drug, Device and Cosmetic Act defines the 

offenses of possession of a controlled substance and PWID as follows: 

§ 780-113. Prohibited acts; penalties 

(a) The following acts and the causing thereof within 

the Commonwealth are hereby prohibited: 

* * *

(16) Knowingly or intentionally possessing a 

controlled or counterfeit substance by a person not 

registered under this act, or a practitioner not registered 

or licensed by the appropriate State board, unless the 

substance was obtained directly from, or pursuant to, a 

valid prescription order or order of a practitioner, or 

except as otherwise authorized by this act.

* * *

(30) Except as authorized by this act, the 

manufacture, delivery, or possession with intent to 

manufacture or deliver, a controlled substance by a 

person not registered under this act, or a practitioner not 

registered or licensed by the appropriate State board, or 

knowingly creating, delivering or possessing with intent 

to deliver, a counterfeit controlled substance. 

35 P.S. § 780-113(a)(16), (30).

In Commonwealth v. Beatty, 227 A.3d 1277 (Pa.Super. 2020), this 

Court addressed a very similar issue where the appellant argued that there 

was insufficient evidence to sustain his conviction for conspiracy to deliver

heroin and fentanyl because there was no evidence the appellant was aware 

that the substance he delivered contained fentanyl. In holding that the 

evidence was sufficient to sustain the conviction, this Court stated:
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The statute defining the offense of [PWID] proscribes 

delivery of a controlled substance. 18 P.S. 780-113(a)(3). 

The provision itself does not designate the controlled 

substance. In other words, the specific identity of the 

controlled substance is not an element of the offense. The 

identity is only relevant for gradation and penalties based 

on the relevant schedule.

* * *

The fact that the substance was heroin with fentanyl, not 

solely heroin, is of no significance for purposes of 

establishing the elements of the statute. Heroin and 

fentanyl are both controlled substances. Moreover, this 

Court has explained:

A person who intends to possess a controlled 

substance, believes he possesses a controlled 

substance, and in fact possesses a controlled 

substance is guilty of possession of a controlled 

substance. The only knowledge that is required to 

sustain the conviction is knowledge of the controlled 

nature of the substance. The defendant need not 

know the chemical name or the precise chemical 

nature of the substance.

Commonwealth v. Sweeting, [528 A.2d 978, 980 

(Pa.Super. 1987)].

Beatty, supra at 1285. 

Here, the Commonwealth presented evidence that Appellant 

communicated with the CI by telephone and agreed to sell heroin to the CI for 

seventy dollars ($70.00). Additionally, the Commonwealth presented 

testimonial and video evidence demonstrating that Appellant arrived at the 

agreed upon location and delivered a packet containing heroin and fentanyl in 

exchange for money. Viewed in the light most favorable to the 

Commonwealth as the verdict winner, the evidence was sufficient to 
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demonstrate that Appellant knowingly possessed and delivered a controlled 

substance containing both heroin and fentanyl. See Tucker, supra. See 

also Beatty, supra. Thus, we agree with appellate counsel that Appellant’s 

challenge to the sufficiency of the evidence is without merit. 

Appellant further seeks to challenge the discretionary aspects of his

sentence. Challenges to the discretionary aspects of sentencing do not entitle 

an appellant to an appeal as of right. Commonwealth v. Watson, 228 A.3d 

928, 935 (Pa.Super. 2020). Prior to reaching the merits of a discretionary 

aspect of sentencing issue:

We conduct a four-part analysis to determine: (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. (quoting Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), 

appeal denied, 621 Pa. 682, 76 A.3d 538 (2013)). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke this Court’s jurisdiction by including in his brief a separate concise 

statement demonstrating a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an 

appellant separately set forth the reasons relied upon for allowance of appeal 
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furthers the purpose evident in the Sentencing Code as a whole of limiting any 

challenges to the trial court’s evaluation of the multitude of factors impinging 

on the sentencing decision to exceptional cases.” Commonwealth v. 

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 

129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (emphasis in original) (internal 

quotation marks omitted). 

Instantly, Appellant filed a timely notice of appeal and preserved his

challenge to the discretionary aspects of sentencing in a post-sentence motion 

to modify sentence. Both counsel’s Anders brief and Appellant’s pro se

response contain a Rule 2119(f) statement but neither presents a substantial 

question for our review. Specifically, counsel concedes: “It would be 

submitted that in the present case the trial court’s sentence of 33 to 66 

months is not manifestly excessive, particularly where the trial court 

considered a number of factors in fashioning its sentence.” (Anders Brief at

5). Counsel acknowledged that the court imposed a sentence within the 

guidelines. Thus, “[c]ounsel for Appellant cannot point to any substantial 

question that the sentence imposed is not appropriate under the Sentencing 

Code.” (Id. at 7).

In his pro se response to the Anders brief, Appellant baldly claims “the 

trial court’s sentence was unduly harsh given his circumstances and that the 

court failed to consider the mitigating factors.” (Appellant’s Pro Se Response 

at 4). This claim also fails to raise a substantial question for our review. See 
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Commonwealth v. Disalvo, 70 A.3d 900 (Pa.Super. 2013) (holding general 

claim that sentence was excessive because court failed to adequately consider 

certain mitigating factors did not raise substantial question). 

Moreover, “[t]he determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis.” Commonwealth v. 

Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). A substantial question 

exists “only 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. Sierra, 752 A.2d 

910, 912-13 (Pa.Super. 2000). 

Additionally, 

Pennsylvania law affords the sentencing court discretion to 

impose [a] sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences 

already imposed. Any challenge to the exercise of this 

discretion does not raise a substantial question. In fact, this 

Court has recognized the imposition of consecutive, rather 

than concurrent, sentences may raise a substantial question 

in only the most extreme circumstances, such as where the 

aggregate sentence is unduly harsh, considering the nature 

of the crimes and the length of imprisonment. 

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal 

denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation 

marks omitted). 

Further: 

...Where the sentencing court had the benefit of a [pre-
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sentence investigation (“PSI”) 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.” 

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 

12, 18 (1988). See also Commonwealth v. Tirado, 870 

A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court 

has benefit of PSI, law expects court was aware of relevant 

information regarding defendant’s character and weighed 

those considerations along with any mitigating factors). 

Further, where a sentence is within the standard range of 

the guidelines, Pennsylvania law views the sentence as 

appropriate under the Sentencing Code. See 

Commonwealth v. Cruz-Centeno, [668 A.2d 536 

(Pa.Super. 1995)], appeal denied, 544 Pa. 653, 676 A.2d 

1195 (1996) (stating combination of PSI and standard range 

sentence, absent more, cannot be considered excessive or 

unreasonable). 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010). 

Here, the court sentenced Appellant to an aggregate sentence of 33 to 

66 months’ incarceration. In fashioning this sentence, the court had the 

benefit of a PSI report and imposed a sentence that was within the standard 

range. Thus, even if Appellant’s claim presented a substantial question for 

our review, we would see no reason to disrupt the court’s sentencing 

discretion. See id. To the extent Appellant complains the court should not 

have imposed the current sentence consecutive to another sentence Appellant 

was serving on a separate docket in Blair County, this claim likewise affords 

Appellant no relief.

4 See Austin, supra. Following our independent review 

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4 The trial court addressed this claim, along with any claim that Appellant’s 

charges in Cambia County should have been tried together with his charges 

in Blair County, as follows:

(Footnote Continued Next Page)
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of the record, we agree with counsel that the appeal is wholly frivolous. See 

Palm, supra. Accordingly, we affirm and grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; petition to withdraw is granted. 

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[T]he court characterizes [Appellant]’s argument as that of 

a question of whether the rule against double jeopardy 

would apply to [Appellant] in this particular situation, as he 

is arguing that the offenses in Blair County and in Cambria 

County formed a single criminal episode. ... The court notes 

that [Appellant] has not now nor ever provided any 

evidence, testimony, or argument that [Appellant] could not 

be tried and convicted of the chares at hand based upon the 

rule against double jeopardy. 

* * *

The court agrees with the Commonwealth that there has not 

been any evidence presented to the court that [Appellant]’s 

conduct in both Blair and Cambria Counties was an ongoing 

criminal episode and that the events that occurred were 

total separate crimes. Therefore, the court finds that it was 

not improper for the sentences in Blair and Cambria 

Counties to be run consecutively and not concurrently. 

(Trial Court Opinion, filed 11/4/21, at 3). We agree with the court’s analysis. 

There is nothing in the record to indicate that Appellant’s convictions in Blair 

County and Cambria County were part of a single criminal episode. Further, 

even if Appellant had established as much, Appellant would not be entitled to 

relief because the conduct culminating in the instant convictions occurred fully 

within Cambria County and outside of Blair County. See Commonwealth v. 

Fithian, 599 Pa. 180, 199, 961 A.2d 66, 77 (2008) (holding that convictions 

for possession of a controlled substance and PWID were not barred by 

compulsory joinder statute because they did not occur within the same judicial 

district as former prosecution; stating: “[W]e hold the General Assembly 

intended to preclude from the reach of the compulsory joinder statute those 

current offenses that occurred wholly outside of the geographic boundaries of 

the judicial district in which the former prosecution was brought, even though 

part of a single criminal episode”). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2023