J-S44021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ZEON L. MARZKA

Appellant No. 2029 WDA 2014

Appeal from the Judgment of Sentence entered October 29, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No: CP-25-CR-0000433-2014

BEFORE: LAZARUS, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 09, 2015

Appellant, Zeon L. Marzka, appeals from the judgment of sentence the 

Court of Common Pleas of Erie County imposed on October 29, 2014. In the 

brief filed by his counsel in accordance with Anders v. California, 386 U.S. 

738 (1967), as refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), Appellant contends his sentence is manifestly excessive. His counsel 

concurrently filed a petition for leave to withdraw. For the reasons explained 

below, we grant counsel’s petition for leave to withdraw and affirm 

Appellant’s judgment of sentence.

The trial court summarized the relevant background of the case as 

follows:

On September 9, 2014, Appellant appeared before the Honorable 

Ernest J. DiSantis, Jr., and pled guilty to an amended count of 

second-degree arson. In exchange, the Commonwealth nolle 

prossed the remaining six counts.
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On October 29, 2014, Appellant appeared before this [c]ourt and 

was sentenced to a term of 4 to 10 years’ incarceration. 

Appellant filed a timely . . . [m]otion to [r]econsider [s]entence, 

which this [c]ourt denied on November 12, 2014.

Appellant filed a timely [n]otice of [a]ppeal on December 10, 

2014. In response thereto, this [c]ourt entered a Rule 1925(b) 

[o]rder, directing Appellant to file a [c]oncise [s]tatement of 

[m]atters [c]omplained of on [a]ppeal. Appellant timely 

complied on December 22, 2014[.]

Trial Court Opinion, 2/5/15, at 1.

We may not address the merits of Appellant’s issue without first 

reviewing the request to withdraw. Commonwealth v. Rojas, 874 A.2d 

638, 639 (Pa. Super. 2005). As this Court recognized in Commonwealth v. 

Cartrette, 83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in 

Santiago did not change the procedural requirements for requesting 

withdrawal from representation. 

Counsel must: 1) petition the court for leave to withdraw stating 

that, after making a conscientious examination of the record, 

counsel has determined that the appeal would be frivolous; 

2) furnish a copy of the brief to the defendant; and 3) advise the 

defendant that he or she has the right to retain private counsel 

or raise additional arguments that the defendant deems worthy 

of the court’s attention. 

Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. 

Super. 2009)).

We conclude counsel has satisfied the procedural requirements set 

forth in Anders. In the petition to withdraw, counsel explains her 

conclusion that, based on a review of the case, there are no meritorious 

issues to be raised on Appellant’s behalf and that proceeding with the case 
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would be frivolous. In addition, counsel furnished a copy of the appellate 

brief to Appellant and advised Appellant of his right to retain new counsel or

act on his own behalf to raise additional arguments or points for this Court’s 

consideration. 

Having concluded counsel satisfied the procedural requirements of 

Anders, we must ascertain whether the brief satisfied the substantive 

mandates prescribed in Santiago. In Santiago, our Supreme Court 

announced:

[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.

Santiago, 978 A.2d at 361.

In the Anders brief, counsel has included a statement of the case that 

includes a procedural history of the case. Counsel has satisfied the first 

requirement. 

The second required element of an Anders brief is reference to 

anything in the record that counsel believes arguably supports the appeal. 

Here, counsel suggests that the trial court failed to consider his “obvious 

remorse” and “rehabilitative potential.” Appellant’s Brief at 7. Counsel has

satisfied the second Anders requirement.
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Counsel also has satisfied the third element of Anders, stating her 

conclusion that the appeal is frivolous. Appellant’s Brief at 7-8. Finally, 

counsel provided her reasons for concluding the appeal is frivolous. 

Counsel, therefore, has satisfied the fourth and final element of the Anders 

test. 

Having determined the procedural and substantive requirements of 

Anders are satisfied, we must conduct our own independent review of the 

record to determine if the issue identified in this appeal is, as counsel 

asserts, wholly frivolous, or if there are any other meritorious issues present 

in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744) 

(“[T]he court—not counsel—then proceeds, after a full examination of all the 

proceedings, to decide whether the case is wholly frivolous. If it so finds, it 

may grant counsel’s request to withdraw.”). 

As noted above, Appellant argues the trial court abused its discretion 

by imposing a manifestly excessive sentence. Specifically, Appellant argues 

the trial court did not properly weigh his “obvious remorse” and his 

“rehabilitative potential.” Appellant’s Brief at 7. Appellant concludes that 

the trial court should have considered these mitigating factors and fashioned 

a lesser sentence. Id. As such, Appellant presents a challenge to the 

discretionary aspects of his sentence.

In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this 

Court reiterated:
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Appellant is not entitled as of right to a review of such a 

challenge. Our jurisdiction over a claim regarding the 

discretionary aspects of sentence must be established as follows:

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. § 9781(b).

Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. 

Super. 2010) (internal quotation marks, citations and modifications 

omitted)).

A review of the record reveals that Appellant has satisfied the first 

three elements of the test. We now turn to the fourth element, whether 

there is a substantial question under 42 Pa.C.S.A. § 9781(b) that the 

sentence appealed from is not appropriate.1

A claim of inadequate consideration of mitigating factors generally fails 

to raise a substantial question. See, e.g., Commonwealth v. Johnson, J.,

961 A.2d 877, 880 (Pa. Super. 2008). Additionally, we have held “[t]hat the 

court[’s] refus[al] to weigh the proposed mitigating factors as Appellant

____________________________________________

1

“A substantial question exists where an appellant sets forth a plausible

argument that the sentence violates a particular provision of the Sentencing

Code or is contrary to the fundamental norms underlying the sentencing

process.” See, e.g., Commonwealth v. Johnson, G., 873 A.2d 704, 709 

(Pa. Super. 2005). 
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wished, absent more, does not raise a substantial question.” Moury, 992 

A.2d at 175 (citations omitted). Here, Appellant’s challenge is limited to the 

sentencing court’s alleged failure to account for mitigating factors, providing 

no additional reason for challenging the sentence. Accordingly, Appellant 

failed to raise a substantial question for our review. Id. 

Even if we were to conclude otherwise, Appellant failed to show the 

sentencing court abused its discretion in fashioning Appellant’s sentence.2 

To this end, the trial court noted:

[T]his [c]ourt sentenced Appellant to 4 to 10 years’ 

incarceration, which was an upward departure from the 

aggravated range, but within the statutory maximum limit. As 

the record reflects, before imposing sentence, this [c]ourt 

considered the pre-sentence investigative report, the 

Pennsylvania Sentencing Code and all its factors, and the 

Pennsylvania Sentencing Guidelines. 

Trial Court Opinion, 2/5/15, at 4 (footnote and citation omitted). 

The trial court also noted that it explained on the record its reasons for 

departing upward from the sentencing guidelines. Id. Indeed, the notes of 

testimony reveal the trial court stated the following:

Here, [Appellant] intentionally set fire on a porch and imperiled 

six people, including an infant. He did so at 3:00 a.m. and 

although he professes to intend no harm, that just has no 

____________________________________________

2

“In reviewing a challenge to the discretionary aspects of sentencing, we 

evaluate the court’s decision under an abuse of discretion standard. 

Additionally, this Court’s review of the discretionary aspects of a sentence is 

confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).” 

Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) 

(quotation marks and citations omitted).
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credibility. You set fire to a place where people are sleeping with 

a high probability, a high probability of killing them. And now it 

turns out in court that he claims to have been acting at the 

behest of others, some person too powerful to touch, this 

imaginary Professor Moriarty. I conclude he did it. He either did 

it for his own anger or to please another or for profit, but the 

reality is he stands here and hides, under his theory, the true 

perpetrator. That goes beyond the heartland of the sentencing 

guidelines[.] [The sentencing guidelines] are not a handcuff for 

the court. I rarely deviate from them. But in this case, this 

arson with the imperiling of six lives, one an infant, offered not 

in anger, but in cold calculation, that’s what he tells us, still 

protecting the person he claims is at the top of it, if that’s to be 

credited, chills one to the very soul.

I’m going to go beyond the standard range of the guidelines. 

I’m going to go beyond the aggravated range of the guidelines 

and I’m going to impose a sentence of four years to ten years[.]

. . . .

A person who would set fire to a house with an infant in there 

deserves nothing more than a long prison sentence. And I note 

for the record, aside from his crime, his prior record score is 

already five.

Trial Court Opinion, 2/5/15, at 4-5 (quoting N.T. Sentencing, 10/29/14, at 

17-18). 

There is no indication in the record before us the sentencing court 

failed to consider Appellant’s personal circumstances, ignored mandatory 

sentencing factors under 42 Pa.C.S.A. § 9721(b), or in any other way 

imposed a sentence that can be characterized as excessive in relation to the 

underlying circumstances. Appellant has not advanced a plausible claim that 

the sentencing court’s actions were inconsistent with any provision of the 

sentencing code or were contrary to the fundamental norms underlying the 
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sentencing process. Nor do we find any other meritorious issue present in 

this case. His appeal is wholly frivolous. 

In essence, Appellant is asking this Court to make credibility 

determinations by reweighing Appellant’s display of remorse. We cannot do 

so. See, e.g., Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa. 1998) 

(“Credibility determinations are strictly within the province of the finder of 

fact; therefore, an appellate court may not reweigh the evidence and 

substitute its judgment for that of the finder of fact.”); Commonwealth v. 

Brown, 741 A.2d 726, 735 (Pa. Super. 1999), appeal denied, 790 A.2d 

1013 (Pa. 2001) (“[W]hen reviewing sentencing matters, we must accord 

the sentencing court great weight as it is in the best position to view the 

defendant’s character, displays of remorse, defiance or indifference, and the 

overall effect and nature of the crime.”) (citation omitted). 

Counsel’s petition for leave to withdraw is granted. Judgment of 

sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2015