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NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

v. AMEEN MCNAIR IN THE SUPERIOR COURT OF PENNSYLVANIA



### Appellant No. 1027 EDA 2016 Appeal 

### from the Judgment ofSentence February 2, 2016 In the Court of Common Pleas 

### of Philadelphia County Criminal Division at No(s): 

### CP-51-CR-0006577-2009
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY RANSOM, J.: 

### FILED FEBRUARY

### 07, 

### 2018 Appellant,Ameen McNair, appeals 

### from the

### judgment ofsentenceoffive to tenyears

### of incarceration, imposed February 2, 2016,

### following a 

### revocation of 

### probation hearing. 

### Additionally, Appellant's counsel, Richard H. Maurer, Esq., seeks to 

### withdraw his 

### representation ofAppellant pursuant to

### Anders
v. 

### California, 87 S. Ct. 1936 

### (1967), and 

### Commonwealth v. 

### Santiago, 978 A.2d 349 (Pa. 

### 2009). We 

### affirm and 

### grant counsel's 

### petition to 

### withdraw. We adoptthe following 

### statement offacts 

### from the 

### trial court'sopinion, which in 

### turn is 

### supported by the record. 

### See Trial Court Opinion (TCO), 

### 5/24/16, at 1-3. In December 2009, a 

### jury convicted 

### Appellant of robbery and 

### criminal conspiracy

### for his 

### involvement in the robbery ofan 

### elderly man.1-

1- 

### See 18 Pa.C.S. § 

### 3701(a)(1)(ii), 903(a)(1), respectively.J

### -S25023-17

In February 2010, the 

### court sentenced 

### Appellant to 

### three to six years of incarceration followed by two years of reporting probation. 

### Appellant filed post-sentence motions, which were denied. 

### Appellant 

### timely appealed, and his

### judgment ofsentencewas

### affirmed. See

### Commonwealth v. 

### McNair, 26 A.3d 1212 (Pa. Super. 

### 2011) (unpublished 

### memorandum),appeal denied, 32 A.3d 1276 (Pa. 

### 2011). While on parole

### from the 2010 sentence, 

### Appellantwas arrested on new charges. In November 2015, a 

### jury convicted 

### Appellant of 

### robbery. In January 2016, the 

### court sentenced 

### Appellant to ten to 

### twenty years of incarceration.2 Appellant appeared before the 

### court for violation of 

### probation proceedings. Following a 

### hearing,the

### court revoked

### Appellant's probation and resentenced himto 

### five to ten years of incarceration consecutiveto any 

### other sentence 

### Appellant was serving. 

### Appellant filed a 

### motion 

### for reconsideration of his sentence, whichthe 

### court denied. 

### Appellant 

### timelyappealed and filed a 

### court-ordered 

### statement of

### errors complained of on appeal 

### pursuant to Pa.R.A.P. 

### 1925(b).3 The 

### court issued a responsive opinion.

2

### Appellant

### timely appealed his

### judgment of sentence; the pending appeal is docketed at 1570 EDA 2016.

3 On March 18, 2016, 

### Appellant 

### untimely appealed to 

### this Court. On March 21, 2016, 

### Appellant filed a 

### motion 

### for reinstatement of his 

### appellate rights nuncpro

### tunc in

### the lowercourt. On March 29, 2016, the lower 

### court,treating the motion as a 

### petition filed 

### under the Post Conviction ReliefAct (PCRA), 42 Pa.C.S. §§ 

### 9541-9546, granted the motion. 

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### -S25023-17

In June 2016, appellate counsel filed in 

### this Court an 

### Anders brief and 

### application to 

### withdraw as counsel. The 

### brief sets 

### forth two issues

### Appellant seeks to raise on appeal, namely 

### that the lower 

### court did not consider all 

### relevantfactors priorto imposing theVOPsentence and

### thatthesentencewas 

### manifestly excessive and breached 

### fundamental norms of sentencing. 

### See Appellant's Briefat 11, 14. However, counsel failed to

### attach to his

### application

a 

### letter to 

### Appellant informing him 

### of his 

### right to retain counsel or proceed 

### pro se in the 

### instant appeal. On July 28, 2016, this Court issued an 

### order directing 

### that counsel 

### comply 

### with the 

### requirements of 

### Anders. Counsel was given ten days to comply. 

### See

### Commonwealth v. 

### Millisock, 873 A.2d 748, 752 (Pa. Super. 2005) (opining 

### that the 

### prudent course is to 

### require counsel to attach to the petition to 

### withdraw a copy ofthe 

### letter sent to the 

### client advising him of his 

### rights). On June 1, 2017, thisCourt issued a second 

### orderdirecting

### thatcounsel 

### comply 

### with the 

### requirements of 

### Anders. That same day, counsel filed a response 

### containing a 

### letter advising 

### Appellant of his 

### right to retain counsel
or proceed

### pro se, dated June 29, 2016. On July 26, 2017, this Court issued a 

### judgment ordering denying counsel's 

### petition to 

### withdraw, directing counsel's 

### proper compliance with 

### Anders and 

### Millisock, and allowing 

### Appellant an 

### additional 

### thirty days to respond. On July 28, 2017, counsel 

### certified 

### that he had sent 

### Appellant an


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### -S25023-17


### Anders-compliant letter. Appellantdid not respond. 

### Accordingly, we address 

### Appellant's brief. When faced 

### with a 

### purported 

### Anders brief, this Court may not review the 

### merits of any possible 

### underlying issues 

### without

### first examining counsel's 

### request to 

### withdraw. 

### Commonwealth v. 

### Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to 

### withdrawing as counsel on 

### direct appeal under 

### Anders, counsel 

### must file a 

### brief 

### that meets the 

### requirements established bythe Pennsylvania Supreme Court in 

### Santiago, namely: (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 supportsthe appeal; (3) set

### forth counsel's conclusion 

### thatthe 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, 978A.2d at 361. Counsel also

### must provide a copy 

### ofthe

### Andersbrief to his client. Attending the 

### brief must be a 

### letter

### that advises 

### the client of his 

### rightto: 

### "(1) retain new counselto pursue theappeal; (2) proceed pro se on appeal; or (3) raiseany points

### thatthe 

### appellantdeems 

### worthy ofthe 

### court[']s attention in 

### addition to the points raised by counsel in the

### Anders brief." 

### Commonwealth v. 

### Nischan, 928A.2d 349, 353 (Pa. Super. 

### 2007),appealdenied, 594 Pa. 704, 936A.2d 40 

### (2007). 

### Commonwealth v. 

### Orellana, 86 A.3d 877, 

### 879-880 (Pa. Super. 

### 2014). 

### After determining 

### that counsel has satisfied these technical 

### requirements of 

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### Anders and 

### Santiago, only then may this Court 

### "conduct an 

### independent review ofthe record to discern if

### thereare any 

### additional, non

### -frivolous issues overlooked by 

### counsel."

### Commonwealth v. 

### Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) 

### (citations and 

### footnote omitted). In the 

### instant

### matter, Attorney Maurer's

### Anders briefcomplies

### withthe above

### -state requirements. Namely, he includes a 

### summary of the 

### relevant factual and procedural 

### history, he refers to the portions of the record 

### that could 

### arguably support Appellant's claims, and he sets 

### forth his conclusion 

### that Appellant's appeal is 

### frivolous. He explains his reasoning and 

### supports his 

### rationale with citations to the record as well as 

### pertinent legal 

### authority. Attorney Maurer avers he has supplied 

### Appellant with a copy 

### of his 

### Anders brief and a 

### letter explaining the rights enumerated in 

### Nischan. Accordingly, counsel has complied 

### with the technical 

### requirements for withdrawal. Thus,
we may 

### independently review the record to 

### determine if the issues

### Appellant raises are 

### frivolous and to ascertain if

### there are 

### other non

### -frivolous issues he may pursue on appeal. 

### Appellant's issues challengethe

### discretionary aspect

### of his sentenceand argues 

### that the lower 

### court did not 

### adequately consider all 

### relevant factors prior to imposing 

### the VOP sentence, and 

### that the sentence was 

### manifestly excessive and breached

### fundamental norms of sentencing. A challenge to 

### the discretionary aspects of a sentence 

### must be considered a 

### petition for permission to appeal. 

### See 

### Commonwealth v. 

### Coulverson, 34 A.3d 135, 142 (Pa. Super. 

### 2011); see 

### also Pa.R.A.P.

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### -S25023-17
2119(f). This 

### Court conducts a 

### four-part analysis to 

### determine: (1) 

### whether Appellant has 

### timely filed a notice of appeal; (2) 

### whether the issue was 

### properly preserved at sentencing or in a 

### motion to reconsider and 

### modify sentence; (3) 

### whether Appellant's brief has a 

### fatal defect; 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). 

### Commonwealth v. 

### Leatherby, 116 A.3d 73, 83 (Pa. Super. 

### 2015) 

### (citation omitted). Appellant

### timelyfiled a notice

### ofappeal, preserved his issues in a 

### motion 

### for reconsideration, and counsel has provided 

### this Court with the requisite notice to

### Appellant. Although counsel has not includedthe 

### requisite Pa.R.A.P. 

### 2119(f) statement in his

### Anders brief, 

### [w]here counselfiles an

### Andersbrief, thisCourt has reviewed the 

### matter even absent a separate Pa.R.A.P. 

### 2119(f) statement. Hence, we do not consider counsel's 

### failure to 

### submit a Rule 

### 2119(f) statement as precluding review of 

### whether Appellant's issue is 

### frivolous. Inaddition, a

### determination of

### whatconstitutes a 

### substantial question must be evaluated on a case

### -by-case basis and such question exists only when an 

### appellant advances a colorable 

### argument 

### that the sentencing 

### judge's actions were 

### eitherinconsistentwith aspecific provision 

### oftheSentencingCode or 

### contrary to the 

### fundamental norms 

### underlying the sentencing process. 

### Commonwealthv. 

### Bynum

### -Hamilton, 135A.3d 179, 184 (Pa. Super. 

### 2016) 

### (internal citations and 

### quotations 

### omitted). A claim 

### that a sentence is 

### manifestly excessive may raise a 

### substantial question ifAppellant's Pa.R.A.P. 

### 2119(f) statement sufficiently articulates the manner in which the sentence 

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### -S25023-17

was 

### inconsistentwith the Code or

### contrary to its norms. 

### Commonwealth v. 

### Mouzon, 812 A.2d 617, 

### 627-28 (Pa. 

### 2002). In the lower 

### court, Appellantargued 

### thatthe 

### courtfailed to consider his 

### rehabilitative needs and failed to consider the 

### extent to which he would be ready to make a 

### positive financial 

### contribution to the care of his 

### family. See Appellant's Pa.R.A.P. 

### 1925(b) Statement at 1111 

### 9-14. However, the 

### allegation 

### that the sentencing 

### court did not consider 

### certain 

### mitigating factors,

### without more, does not raise a 

### substantial question. 

### See 

### Commonwealth v. 

### McNabb, 819 A.2d 54, 57 (Pa. Super. 

### 2003). Accordingly, Appellant's 

### first issue does not raise a 

### substantial question. Appellant next claimed 

### that the aggregate sentence was 

### manifestly excessive and breached 

### fundamental norms of sentencing, as the 

### term of 

### incarceration was not necessary 

### for Appellant to avail 

### himself of the 

### rehabilitation options in prison, nor necessary to ensure the 

### safety of the public. 

### SeeAppellant's Pa.R.A.P. 

### 1925(b) 

### Statement at 1111 

### 15-16. We note 

### that Appellant must still 

### articulate the manner in which the sentence is 

### inconsistent with the Code or 

### contrary to its norms. 

### Mouzon, 812 A.2d at 

### 627-28. Appellantdoes not 

### identify aspecific provision 

### ofthe Code

### with which the sentence was 

### inconsistent. Further, a claim the 

### trial court failed to consider an 

### appellant's 

### rehabilitative needs also fails to raise a 

### substantial question. 

### See 

### Commonwealth v. 

### Cannon, 54 A.2d 1222, 

### 1228-29 (Pa. Super. 

### 2008), appealdenied, 600 Pa. 743, 964 A.2d 893 

### (2009) (claim 

### that


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the

### trial courtfailed to consider the 

### defendant's 

### rehabilitative needs, age, and educational background did not 

### present a 

### substantial 

### question); Thus, we 

### cannot conclude, based on the record, 

### that the sentencing 

### court in any 

### other way imposed a harsh and excessive sentence 

### that was 

### disproportionate to the underlying 

### violations and circumstances. 

### See 

### Commonwealth v. 

### Kalichak, 943 A.2d 285, 292 (Pa. Super. 

### 2008). The 

### court appropriately considered all 

### factors relevant to sentencing. In short, we agree 

### with

### Attorney Maurer

### thatAppellant'stwo issues are 

### frivolous. We have 

### independently reviewedthe record and find no 

### otherissues of arguable 

### merit 

### that he could pursue on appeal. 

### Accordingly, we 

### affirm Appellant's

### judgment of sentence and 

### grant counsel's 

### petition to 

### withdraw. Petition to 

### withdraw granted. Judgment of sentence 

### affirmed. Jurisdiction relinquished. Judgment Entered.

seph D. 

### Seletyn, Prothonotary

Date: 

### 2/7/18



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