J-S53035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

VICTOR A. APONTE, JR.

 Appellant No. 167 MDA 2016

Appeal from the Judgment of Sentence December 22, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s):CP-06-CR-0005964-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

VICTOR A. APONTE, JR.

 Appellant No. 168 MDA 2016

Appeal from the Judgment of Sentence December 22, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s):CP-06-CR-0005965-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

VICTOR A. APONTE, JR.

 Appellant No. 169 MDA 2016

Appeal from the Judgment of Sentence December 22, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s):CP-06-CR-0005966-2014
J-S53035-16

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COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

VICTOR A. APONTE, JR.

 Appellant No. 170 MDA 2016

Appeal from the Judgment of Sentence December 22, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s):CP-06-CR-0005968-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

VICTOR A. APONTE, JR.

 Appellant No. 171 MDA 2016

Appeal from the Judgment of Sentence December 22, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s):CP-06-CR-0005971-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 09, 2016

Appellant, Victor A. Aponte, Jr., appeals from the judgment of 

sentence entered in the Berks County Court of Common Pleas after he 

pleaded guilty to four counts of delivering a controlled substance and one 

count of theft graded as a felony of the third degree.1 Appellant’s counsel 

has filed a petition to withdraw from representation and an 

 

*

Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 3903(a.1), 3921(a); 35 P.S. § 780-113(a)(30). 
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Anders/Santiago2 brief. We deny the petition to withdraw and remand this 

case with instructions. 

The Commonwealth recited the factual bases of Appellant’s pleas at 

the December 22, 2015 guilty plea hearing, and the following exchanges 

with Appellant occurred:

[Commonwealth:] By pleading guilty, regarding 

Information 5965 of 2014, do you admit on or about 

various dates and times between June 23rd, 2014 and 

June 30th, 2014 you were at the Silk Mill Apartment here 

in Berks County, Pennsylvania, you stole copper as well as 

air-conditioning coils from the Northeast Middle School and 

sold that without license or authorization to do so?

[Appellant:] Yes.

[Commonwealth:] Regarding Information 5964 of 2014, do 

you admit on or about September 18th, 2014, you 

delivered .34 grams of heroin, a Schedule I controlled 

substance, to an undercover police officer in the 800 block 

of Penn Street, Reading, Berks County, Pennsylvania, 

without a license or without authorization to do so?

[Appellant:] Yes. 

[Commonwealth:] Regarding Information 5966 of 2014, do 

you admit on or about October 14, 2014 in the 800 block 

of Penn Street, Reading, Berks County, Pennsylvania, you 

delivered 0.2 grams of heroin[,] a Schedule I controlled 

substance, to an undercover police officer without license 

or authorization to do so?

[Appellant:] Yes. 

 

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

Santiago, 978 A.2d 349 (Pa. 2009); see also Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981). 
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[Commonwealth:] Regarding Information 5968 of 2014, do 

you admit on or about September 2nd, 2014, in the 800 

block of Penn Street, Reading, Berks County, 

Pennsylvania, you delivered .23 grams of heroin, Schedule 

I controlled substance, to an undercover officer without 

license or authorization to do so?

[Appellant:] Yes. 

[Commonwealth] Regarding Information 5971 of 2014, do 

you admit on or about October 28th, 2014, you delivered 

approximately 2.1 grams of heroin[,] a Schedule I 

controlled substance, to an undercover police officer 

without license or authorization to do so?

[Appellant:] Yes.

 

N.T. Guilty Plea & Sentence H’rg, 12/22/15, at 5-7. The Commonwealth 

agreed to dismiss related charges in each information, but there was no 

agreement as to sentencing. 

The trial court accepted Appellant’s guilty pleas and immediately 

proceeded to sentencing with the benefit of a presentence investigation 

report. The court ordered Appellant to serve four concurrent terms of two to 

five years’ imprisonment for each drug delivery. The court also sentenced 

Appellant to consecutive terms of one to two years’ imprisonment and five 

years’ probation for the theft. The aggregate sentence was three to seven 

years’ imprisonment plus five years’ probation. Additionally, the court 

ordered $31,000 in restitution for the theft. 
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On December 29, 2015, Appellant, through counsel, filed timely postsentence motions to withdraw his guilty pleas and modify his sentence.3

 The 

trial court denied the counseled motions on December 30, 2016. Appellant 

timely appealed the conviction at each docket number, and counsel timely 

filed Pa.R.A.P. 1925(c)(4)4statements. This Court consolidated the appeals.

Appellant’s counsel has petitioned to withdraw and submitted an 

Anders/Santiago brief identifying two questions, which we have reordered 

as follows: 

Whether the sentencing court abused its discretion as the 

aggregate sentence imposed, three (3) to seven (7) years 

of incarceration followed by five (5) years of probation, 

was excessive and unreasonable, not in accordance with 

the applicable statutory requirements and without 

articulated reasons[?]

Whether the trial court erred by denying the [Appellant’s] 

Motion to Withdraw his Guilty Pleas where his pleas were 

involuntarily, unknowingly, or unintelligently entered[?]

Anders/Santiago Brief at 10. Appellant has not filed a response. 

“[T]his Court may not review the merits of the underlying issues 

without first passing on the request to withdraw” by counsel. 

 

3 That same day, Appellant mailed to the trial court a pro se post-sentence 

motion indicating his counsel was ineffective and induced him to plead 

guilty. The trial court filed the pro se motion and forwarded it to counsel. 

See Pa.R.Crim.P. 576(A)(5). Appellant was represented by counsel from the 

Public Defender’s Office, which has continued to represent Appellant in this 

appeal. 

4 See Pa.R.A.P. 1925(c)(4) (“In a criminal case, counsel may file of record 

and serve on the judge a statement of intent to file an Anders/McClendon

brief in lieu of filing a Statement.”).
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Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (citation 

omitted).

[T]he three requirements that counsel must meet before 

he or she is permitted to withdraw from representation 

[are] as follows:

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.

Id. (citations and footnote omitted). 

Additionally, Santiago requires 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.

[I]n Pennsylvania, when counsel meets his or her 

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.”

Id. at 355 n.5 (citations omitted). “Wholly frivolous” means “the appeal 

lacks any basis in law or fact.” Id. at 356 (citation omitted). 
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It should be emphasized that lack of merit in an appeal is 

not the legal equivalent of frivolity. Anders appears to 

rest narrowly on the distinction between complete frivolity 

and absence of merit. The latter is not enough to support 

either a request by counsel to withdraw, nor the granting 

of such a request by the court.

Commonwealth v. Kearns, 896 A.2d 640, 647 (Pa. Super. 2006) (citations 

and quotation marks omitted). 

Appellant’s counsel has complied with the procedural requirements for 

seeking leave to withdraw. Therefore, we proceed to review her assessment 

that the appeal is frivolous. See Santiago, 978 A.2d at 355 n.5.

Appellant’s counsel first discusses Appellant’s claim that the trial 

court’s sentence was excessive. Counsel has included a Pa.R.A.P. 2119(f) 

statement in her Anders/Santiago brief. According to counsel, Appellant 

“asserts that the trial court’s aggregate sentence of three (3) to seven (7) 

years incarceration, followed by five (5) years of probation was manifestly 

excessive, clearly unreasonable, and contrary to the fundamental norms 

underlying the Sentencing Code.” Anders/Santiago Brief at 15. He would 

further argue that the trial court failed to consider mitigating circumstances 

and did not adequately explain its sentence. Id. at 21. Counsel believes 

Appellant’s arguments could raise a substantial question, but concludes they 

are frivolous because the individual sentences were within the standard 

range suggested by the Sentencing Guidelines and the trial court set forth 

an adequate statement for the reasons for its sentence. Id. at 15, 22. We 

conclude this issue is frivolous. 
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Appellant’s counsel has preserved Appellant’s intended sentencing 

challenges by filing a timely post-sentence motion for modification, taking a 

timely appeal, and including in her brief a Rule 2119(f) statement. See 

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Thus, 

we proceed to counsel’s assertion that Appellant could raise a substantial 

question. 

It is well settled that 

the Rule 2119(f) statement must specify where the 

sentence falls in relation to the sentencing guidelines and 

what particular provision of the Code is violated (e.g., the 

sentence is outside the guidelines and the court did not 

offer any reasons either on the record or in writing, or 

double-counted factors already considered). Similarly, the 

Rule 2119(f) statement must specify what fundamental 

norm the sentence violates and the manner in which it 

violates that norm . . . . 

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en 

banc). “Our inquiry must focus on the reasons for which the appeal is 

sought, in contrast to the facts underlying the appeal, which are necessary 

only to decide the appeal on the merits.” Id. 

Generally, a challenge to the trial court’s discretion to impose 

consecutive sentences does not pose a substantial question. 

Commonwealth v. Mastromarino, 2 A.3d 581, 586-87 (Pa. Super. 2010).

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. That is in our view, the key to 
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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. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (some 

punctuation and citations omitted). 

Moreover, 

[w]here pre-sentence reports exist, we shall continue to 

presume that the sentencing judge was aware of relevant 

information regarding the defendant’s character and 

weighed those considerations along with mitigating 

statutory factors. A pre-sentence report constitutes the 

record and speaks for itself. In order to dispel any 

lingering doubt as to our intention of engaging in an effort 

of legal purification, we state clearly that sentencers are 

under no compulsion to employ checklists or any extended 

or systematic definitions of their punishment procedure. 

Having been fully informed by the pre-sentence 

report, the sentencing court’s discretion should not 

be disturbed. This is particularly true, we repeat, in 

those circumstances where it can be demonstrated that 

the judge had any degree of awareness of the sentencing 

considerations, and there we will presume also that the 

weighing process took place in a meaningful fashion. . . .

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added). 

When sentencing in the standard range of the Sentencing Guidelines, “a 

sentencing judge may satisfy [the] requirement of disclosure on the record 

of his reasons for imposition of a particular sentence without providing a 

detailed, highly technical statement.” Commonwealth v. Hunzer, 868 

A.2d 498, 514 (Pa. Super. 2005) (citation omitted).
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Appellant’s intended challenges to the aggregate sentence focuses on 

the trial court’s decision to run the theft sentence consecutively to the four 

concurrent drug offenses.5 Such a challenge to the consecutive nature of a 

sentence does not raise a substantial question under the circumstances of 

this case. See Mastromarino, 2 A.3d at 586-87. Moreover, the suggestion 

that the trial court, which had the benefit of a presentence investigation 

report, failed to consider mitigating factors or inadequately explained its 

sentence lacks support in the law or the record.6 See Devers, 546 A.2d at 

 

5

Instantly, the parties agreed that Appellant had a prior record score of five, 

the drug offenses carried an offense gravity score of six, and the theft 

carried an offense gravity score of five. N.T. at 8-9. The standard range 

recommended minimum sentences were from twenty-one to twenty-seven 

months’ imprisonment for the drug offenses and from twelve to eighteen 

months’ for the theft. Id. The court’s individual sentences of two to five 

years’ imprisonment for the drug offenses and one to two years plus five 

years’ probation thus fell within the standard range. The trial court, when 

structuring the sentence, had the benefit of presentence investigation report 

and stated it review the report. Id. at 7, 13. 

6 The trial court, when sentencing, stated:

I have reviewed the P.S.I. I have taken into account the . 

. . written and oral colloquies. I have taken into account 

the provisions of the Sentencing Guidelines, the 

information provided by the parties, as well as the

recommendations of the parties. 

I have scrutinized [Appellant’s] prior record so that I 

could get a proper context here and also in order to more 

sensibly consider the provision of the Sentencing Code 

insofar as the factors required to take into account, one of 

which the severity of the offenses and [Appellant’s] 

rehabilitative needs, especially in light of the extensive 
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18; Hunzer, 868 A.2d at 514. Accordingly, we conclude Appellant’s 

intended challenges to the excessiveness of the sentence do not raise 

substantial questions and are frivolous. 

Appellant’s counsel next discusses Appellant’s assertion that the trial 

court erred in denying his post-sentence motions to withdraw his guilty 

pleas. Appellant intends to argue that “he did not enter his guilty pleas 

knowingly, intelligently or voluntarily” and “was pushed into entering open 

guilty pleas.” Anders/Santiago Brief at 18. Appellant “want[s] to proceed 

to trial and assert his innocence.” Id. Counsel observes that Appellant 

“may argue that the guilty plea colloquy . . . failed to ascertain whether he 

understood the nature of the charges to which he was pleading guilty.” Id. 

Counsel notes the on-the-record guilty plea colloquy did not include a 

recitation of the elements of the charges. Id. However, counsel concludes 

that this issue is frivolous because the totality of the circumstances 

suggested Appellant was aware of the nature of the charges. Id. We 

disagree with counsel’s assessment. 

It is well-settled that:

[p]ost-sentence motions for withdrawal are subject to 

higher scrutiny since courts strive to discourage entry of 

guilty pleas as sentence-testing devices. A defendant 

must demonstrate that manifest injustice would result if 

 

substance abuse history that has been outlined and 

detailed. 

N.T. at 13. 
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the court were to deny his post-sentence motion to 

withdraw a guilty plea. “Manifest injustice may be 

established if the plea was not tendered knowingly, 

intelligently, and voluntarily.” 

Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010) (citations 

omitted). 

The Pennsylvania Rules of Criminal Procedure mandate 

that pleas be taken in open court, and require the court to 

conduct an on-the-record colloquy to ascertain whether a 

defendant is aware of his rights and the consequences of 

his plea. Specifically, the court must affirmatively

demonstrate the defendant understands: (1) the nature of 

the charges to which he is pleading guilty; (2) the factual 

basis for the plea; (3) his right to trial by jury; (4) the 

presumption of innocence; (5) the permissible ranges of 

sentences and fines possible; and (6) that the court is not 

bound by the terms of the agreement unless the court 

accepts the agreement. This Court will evaluate the 

adequacy of the plea colloquy and the voluntariness of the 

resulting plea by examining the totality of the 

circumstances surrounding the entry of that plea. 

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) 

(citations omitted); see also Pa.R.Crim.P. 590 & cmt. 

Section 3921(a) of the Crimes Code defines theft as follows: “A person 

is guilty of theft if he unlawfully takes, or exercises unlawful control over, 

movable property of another with intent to deprive him thereof.” 18 Pa.C.S. 

§ 3921(a). The maximum sentence for theft is determined, in part, by the 

value of the property taken. See id. § 3903(a.1), (b). “If the amount 

involved exceeds $2,000,” a theft is graded as a third-degree felony, 

punishable by a maximum of seven years imprisonment. Id. §§ 1103(3), 

3903(a.1). If the amount involved is $2,000 or less, but greater than $200, 
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the theft is graded as a first-degree misdemeanor, punishable by a 

maximum of five years imprisonment. Id. §§ 1104(1), 3903(b). 

Instantly, the record establishes that Appellant was apprised of the 

factual bases for his guilty pleas, his right to trial by jury, the presumption of 

innocence, and the maximum possible sentences. N.T. at 3-7. 

Additionally, Appellant was aware that the court was not bound by the 

parties’ agreement on the charges and he could withdraw his pleas if the 

court did “not sentence him in accordance with the charge agreement.” See

id. at 4. As counsel notes, Appellant also signed written guilty plea 

colloquies indicating he understood the nature of the charges to which he 

was pleading guilty, including the felony-three theft.

However, the written colloquy and the totality of the circumstances 

discussed by Appellant’s counsel do not establish that Appellant admitted or 

was advised that the items stolen were valued over $2,000. In his written 

colloquy, Appellant acknowledged that he “unlawfully took or exercised 

control over moveable property of another, having a value of $2,000 more 

or less, with the intent to deprive the owner thereof.” Statement 

Accompanying Defendant’s Request to Enter a Guilty Plea, CP-06-CR0005965-2014, at 3 (emphasis added). Although restitution was 

subsequently set at $31,000 at sentencing, the record surrounding the guilty 

plea evinces no clear statement of the value of the stolen items. See N.T. at 

5-6. 
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Thus, we find that Appellant’s counsel failed to address the issue 

regarding the value of the items Appellant admitted he “stole.” In so doing, 

counsel overlooked possible challenges to the knowing nature of Appellant’s 

plea to theft and the legality of the sentence imposed for that offense. Cf. 

Kearns, 896 A.2d at 645-46. Therefore, we must deny counsel’s motion to 

withdraw and remand this case for further proceedings. See Santiago, 978 

A.2d at 355 n.5, 361. Counsel shall have thirty days to consider these 

issues and either file an amended Anders/Santiago brief,7or petition this 

Court for remand under Pa.R.A.P. 1925(c)(4) if counsel determines there 

any nonfrivolous issues for appeal. 

Petition to withdraw denied. Case remanded. Counsel shall file an 

amended Anders/Santiago brief or a petition for remand under Pa.R.A.P. 

1925(c)(4) within thirty days of this memorandum. Panel jurisdiction 

retained.

 

7

If counsel elects to file an amended Anders/Santiago brief, she shall file a 

new petition to withdraw pursuant to Anders/Santiago, which ensures, 

inter alia, that Appellant is apprised of his right to proceed pro se or with 

private counsel and counsel has provided Appellant a copy of her brief.