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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 of Sentence 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 of sentence of five 

to ten years 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 of Appellant 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 adopt the following statement of facts from the trial court's opinion, 

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 of an elderly man.1- 

1- See 18 Pa.C.S. § 3701(a)(1)(ii), 903(a)(1), respectively. 
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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 of sentence was 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 Super. 2011) (unpublished memorandum), appeal denied, 32 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, Appellant was 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 him to five to ten years of incarceration consecutive to any other 

sentence Appellant was serving. Appellant filed a motion for reconsideration 

of his sentence, which the court denied. 

Appellant timely appealed 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 

nunc pro tunc in the lower court. On March 29, 2016, the lower court, treating 

the motion as a petition filed under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546, granted the motion. 

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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 

relevant factors prior to imposing the VOP sentence and that the sentence was 

manifestly excessive and breached fundamental norms of sentencing. See 

Appellant's Brief at 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 of the letter sent to the client advising him of his 

rights). 

On June 1, 2017, this Court issued a second order directing that counsel 

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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Anders -compliant letter. Appellant did 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 by the 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 

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. 

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. Nischan, 

928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 

936 A.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 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) (citations and footnote omitted). 

In the instant matter, Attorney Maurer's Anders brief complies with the 

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 challenge the discretionary aspect of his sentence and 

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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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 timely filed a notice of appeal, preserved his issues in a motion 

for reconsideration, and counsel has provided this Court with the requisite 

notice to Appellant. Although counsel has not included the requisite Pa.R.A.P. 

2119(f) statement in his Anders brief, 

[w]here counsel files an Anders brief, this Court 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. In addition, a determination of what constitutes 

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 

either inconsistent with a specific provision of the Sentencing Code 

or contrary to the fundamental norms underlying the sentencing 

process. 

Commonwealth v. Bynum -Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016) 

(internal citations and quotations omitted). A claim that a sentence is 

manifestly excessive may raise a substantial question if Appellant's Pa.R.A.P. 

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

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was inconsistent with the Code or contrary to its norms. Commonwealth v. 

Mouzon, 812 A.2d 617, 627-28 (Pa. 2002). 

In the lower court, Appellant argued that the court failed 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. See Appellant'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. Appellant does not identify a specific provision of the 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), appeal denied, 600 Pa. 743, 964 A.2d 893 (2009) (claim that 

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the trial court failed 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 that Appellant's two issues are 

frivolous. We have independently reviewed the record and find no other issues 

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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