J-S01042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHAD DERRICK HOWEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 757 MDA 2023

Appeal from the Judgment of Sentence Entered May 2, 2023

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0000553-2022

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: SEPTEMBER 6, 2024

Appellant, Chad Derrick Howey, appeals from the judgment of sentence 

entered following his conviction of six counts of possession of a controlled 

substance. In addition, on the basis that she has determined that this appeal 

is wholly frivolous, his attorney has filed an application to withdraw as counsel 

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Because 

we agree with counsel’s assessment, we grant the application to withdraw and 

affirm.

The trial court offered the following summary of the factual history of 

this case:

[Appellant’s] charges stemmed from a traffic stop 

conducted in the City of Scranton, on March 19, 2022. On that 

date, Officers Hyler and Petrucci, of the Scranton Police 

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* Retired Senior Judge assigned to the Superior Court.
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Department, conducted a traffic stop of a white GMC Arcadia, in 

which Appellant was a passenger. As Officer Petrucci approached 

the passenger side of the vehicle, he observed Appellant actively 

smoking a cigarette containing synthetic marijuana. N.T. Trial -

January, 30, 2023, p. 24. When confronted, Appellant admitted 

the cigarette did contain synthetic marijuana. Id. Officer Petrucci 

detained Appellant, placed him into handcuffs, and obtained 

Appellant’s consent to search his person. Id. at. 25. As a result 

of that search, Officer Petrucci recovered additional bags 

containing synthetic marijuana. Id. Officer Petrucci issued 

Appellant his Miranda Warnings and placed Appellant under arrest. 

Id. at 27. Appellant admitted to possessing additional narcotics 

on his person, wherein Officer Petrucci recovered a quantity of 

methamphetamine and cocaine. Id. at 29-30. Officer Petrucci 

also recovered a quantity of buprenorphine sublingual films, 

$1,440.00 contained within a bag belonging to Appellant, along 

with a cell phone belonging to Appellant, which was located on the 

front passenger seat that Appellant previously occupied. Id. at 

27-28,32-34. Appellant also indicated to the officers that he 

resided in a tent in a wooded area located in the area of Mount 

Pleasant Drive, in Scranton. Id. at 31-32. The officers 

subsequently applied for, received, and executed a search warrant 

to search the tent in which Appellant resided. Id. at 36. Pursuant 

to that search, the officers recovered the following:

• a quantity of synthetic marijuana;

• a quantity of ecstasy pills;

• a quantity of methamphetamine;

• a quantity of fentanyl;

• a quantity of marijuana;

• a Ziploc bag containing baking soda;

• three digital scales;

• plastic baggies of various sizes; and

• two prescription pill bottles belonging to Appellant.

Id. at 36 - 39. Following the search of Appellant’s tent, the officers 

learned that Appellant rented a storage unit from U-Haul located 

in Scranton. Id. at 41. After applying for and receiving approval 

for, the officers executed another search warrant for that storage 

unit. Id. at 42. Pursuant to the search of the search warrant 

related to the storage unit, officers recovered the following:

● a sum of U.S. Currency, totaling $3,300.00;

● a bulletproof vest;
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● three digital scales;

● plastic baggies;

● a sifter and pestle; and

● a “how-to guide” related to selling drugs;

Id. at 42 - 46.

Trial Court Opinion 8/18/23, at 1-3.

In an amended criminal information filed on January 27, 2023, the 

Commonwealth charged Appellant with five counts of possession of a 

controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30), six 

counts of possession of a controlled substance, 35 P.S. § 780-113(a)(16), and 

one count of drug paraphernalia, 35 P.S. § 780-113(a)(32). On February 1, 

2023, a jury convicted Appellant of six counts of possession of a controlled 

substance.1

On May 2, 2023, the trial court sentenced Appellant to serve an 

aggregate term of incarceration of four to nine years, followed by six years of 

probation. Appellant filed a post-sentence motion for reconsideration, which 

the trial court denied. This timely appeal followed.

As noted, counsel has filed an application to withdraw from 

representation and an Anders brief. Before we address any questions raised 

on appeal, we must consider counsel’s request to withdraw. See 

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1 Regarding the remaining charges, Appellant was found not guilty on one 

count of possession with intent to deliver. Also, there was a hung jury 

concerning the single charge of drug paraphernalia and the remaining four 

counts of possession with intent to deliver.
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Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (“[T]his 

Court may not review the merits of the underlying issues without first passing 

on the request to withdraw.”) (citation omitted). Counsel who believes an 

appeal is frivolous and seeks to withdraw from representation under Anders

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. 

Commonwealth v. Tejada, 176 A.3d 355, 359 (Pa. Super. 2017). In 

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), our Supreme 

Court addressed the second point of the Anders standard, i.e., the contents 

of the Anders brief, which requires that the brief:

(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. Once counsel has satisfied the Anders 

requirements, this Court then has a duty to conduct its own review of the 

lower court’s proceedings and make an independent determination whether 

the appeal is wholly frivolous. Commonwealth v. Edwards, 906 A.2d 1225, 

1228 (Pa. Super. 2006).
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In this case, those directives have been satisfied. Within the application 

to withdraw, counsel averred that she conducted a conscientious examination 

of the record in this case. Following that review, counsel concluded that the 

present appeal is without merit. Counsel sent Appellant a copy of the Anders

brief and application to withdraw, as well as a letter, a copy of which is 

attached to the application to withdraw. In the letter, counsel advised 

Appellant that it is her determination any appeal would be frivolous. Counsel 

further advised Appellant that he could represent himself or that he could 

retain private counsel. Appellant has not filed a substantive response with 

this Court.2

We now examine whether the Anders brief satisfies our Supreme 

Court’s dictates in Santiago, and we determine that it is compliant. The brief 

sets forth the procedural history of this case, outlines pertinent case authority, 

and discusses counsel’s conclusion that the appeal is frivolous. We thus 

conclude that the procedural and briefing requirements for withdrawal have 

been met.

Counsel has set forth the following issues that Appellant believes entitle 

him to relief:

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2 We note that on October 26, 2023, this Court received from Appellant a pro 

se letter acknowledging receipt of counsel’s application to withdraw based 

upon a conclusion that the appeal is frivolous. In his letter, Appellant 

expresses a desire to continue with the appeal. However, Appellant does not 

set forth any additional issues or arguments. Rather he requests “help in 

reviewing all of [his] overlooked issues[.]” Pro Se Letter, 10/26/23, at 1.
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A. WHETHER THE TRIAL COURT IMPOSED HARSH AND EXCESSIVE 

INDIVIDUAL SENTENCES ON COUNTS 6, 7, AND 8, WHICH 

SENTENCES WERE AT THE HIGHEST END OF THE STANDARD 

SENTENCE RANGE.

B. WHETHER THE TRIAL COURT IMPOSED HARSH AND EXCESSIVE 

SENTENCES WHEN IT IMPOSED CONSECUTIVE SENTENCES.

Anders Brief at 4 (Suggested answers omitted).

Initially, we note that Appellant’s issues each challenge the discretionary 

aspects of his sentence. Our standard of review is one of abuse of discretion. 

Sentencing is a matter vested in the sound discretion of the sentencing judge, 

and a sentence will not be disturbed on appeal absent a manifest abuse of 

discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 

2006).

It is well settled there is no absolute right to appeal the discretionary 

aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. 

Super. 2006). Rather, where an appellant challenges the discretionary 

aspects of a sentence, the appeal should be considered a petition for allowance 

of appeal. See Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 

2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

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 
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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).

Moury, 992 A.2d at 170 (citation and brackets omitted).

Here, the first three requirements of the four-part test are met. 

Appellant brought an appropriate appeal, raised the claim in a post-sentence 

motion,3 and included in his appellate brief a concise statement of the reasons 

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). We next 

consider whether he has raised a substantial question requiring us to review 

the discretionary aspects of the sentence imposed.

Whether a particular issue constitutes a substantial question about the 

appropriateness of sentence is a question to be evaluated on a case-by-case 

basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001). As to what constitutes a substantial question, this Court does not 

accept bald assertions of sentencing errors. See Commonwealth v. 

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3 We observe the Commonwealth suggests that review of Appellant’s issues 

must be denied because he has not preserved the claims. Specifically, the 

Commonwealth contends that although Appellant “filed a motion for 

reconsideration [of sentence, he] only raised the claim that his sentence was 

harsh and excessive without giving any reasons why he believed this was so.” 

Commonwealth’s Brief at 3 (citation and quotation marks omitted). The 

Commonwealth asserts the general nature of Appellant’s claim did not 

preserve the discretionary aspects of sentencing issues. See id. 

Nevertheless, we will consider the issues to be properly preserved in 

Appellant’s post-sentencing filing.
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Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). Rather, an appellant must 

show actions by the trial court inconsistent with the Sentencing Code or 

contrary to the fundamental norms underlying the sentencing process. See 

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).

Initially, Appellant contends the trial court abused its discretion by 

failing to consider mitigating factors pertaining to his childhood family history 

and personally suffering from drug addiction and mental health issues. See

Anders Brief, at 10-11. This Court has held that an assertion that a sentence 

was excessive coupled with a claim that the trial court failed to properly 

consider the factors set forth in 42 Pa.C.S. § 9721(b)4raises a substantial 

question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 

2015) (en banc). See also Commonwealth v. Raven, 97 A.3d 1244, 1253 

(Pa. Super. 2014) (stating that “an excessive sentence claim—in conjunction 

with an assertion that the court failed to consider mitigating factors—raises a 

substantial question”) (internal citation omitted). Accordingly, we grant 

permission to appeal this issue and proceed to review its merits.

In the Anders brief, Appellant argues that although he was sentenced 

at the highest end of the standard sentence range, the trial court failed to 

identify on the record the reasons necessitating a long sentence of 

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4 The factors to be considered under 42 Pa.C.S. § 9721(b) include: the 

protection of the public, gravity of offense in relation to impact on victim and 

community, and rehabilitative needs of the defendant. See 42 Pa.C.S. § 

9721(b).
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incarceration. See Anders Brief at 14. Further, “Appellant contends that the 

trial court failed to consider that he had addiction issues, a very difficult 

childhood, and mental health issues[.]” Id. at 15.

Sentencing is a matter vested in the sound discretion of the sentencing 

judge, and a sentence will not be disturbed on appeal absent a manifest abuse 

of discretion. Commonwealth v. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 

2022). In this context, an abuse of discretion is not shown merely by an error 

in judgment. See id. Rather, an appellant must establish by reference to the 

record that the sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a 

manifestly unreasonable decision. See id.

The sentencing judge has broad discretion in determining the proper 

penalty, and this Court accords the sentencing court great deference, as it is 

the sentencing court that is in the best position “to view a defendant’s 

character, displays of remorse, defiance, or indifference and the overall effect 

and nature of the crime.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 

2007) (citation omitted). As we have stated, “[a] court is required to consider 

the particular circumstances of the offense and the character of the 

defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) 

(citation omitted). “In particular, the court should refer to the defendant’s 

prior criminal record, his age, personal characteristics and his potential for 

rehabilitation.” Id.
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In addition, “[o]ur Supreme Court has determined that where the trial 

court is informed by a pre-sentence report, it is presumed that the court is 

aware of all appropriate sentencing factors and considerations, and that where 

the court has been so informed, its discretion should not be disturbed.” 

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) 

(citation omitted).

Here, the record establishes that at Appellant’s sentencing hearing, the 

court received a presentence report, heard argument from the 

Commonwealth, considered argument from defense counsel, and heard 

Appellant’s allocution. See N.T., 5/2/23, at 2-6. Before announcing the 

sentence, the trial court explained that it will “be going outside the guideline[s] 

and placing some of [the sentences] below the mitigated [range] and [for] the 

others [the court] will [be] sentencing squarely within the standard guideline 

[range].” Id. at 6.

In its written opinion, the trial court set forth the following:

As such, Appellant’s claim is without merit as this [c]ourt’s 

sentence is not excessive, harsh, or arbitrary. Additionally, this 

[c]ourt reviewed Appellant’s case, including the [presentence 

report], and considered all the appropriate factors, as well as the 

statements that Appellant’s counsel and Appellant himself made 

at the sentencing hearing. After which, this [c]ourt indicated its 

intention to impose a sentence below the mitigated range on a 

portion of the charges and within the standard guideline range for 

the remaining charges and imposed such a sentence upon 

Appellant. N.T. Sentencing, p. 6-7.

Again, this [c]ourt, considered all relevant factors and 

circumstances, both aggravating and mitigating. After such 

consideration, this court imposed sentence upon Appellant that 
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was within the standard guideline range and took into account 

Appellant’s prior history and dealings with the criminal justice 

system and his failure to rehabilitate. As such, the sentence is 

considered appropriate under the Sentencing Code.

Trial Court Opinion, 8/18/23, at 10.

It is our conclusion the trial court properly considered appropriate 

relevant factors in formulating Appellant’s sentence, which was partially within 

the standard range and partially below the mitigated range of the sentencing 

guidelines. Moreover, because the court was fully informed and relied upon a 

presentence report, we conclude that it did not abuse its discretion in 

fashioning Appellant’s sentence. Ventura, 975 A.2d at 1133. Therefore, 

Appellant’s claim that the trial court did not consider appropriate factors in 

fashioning his sentence lacks merit.

In his second issue, Appellant argues that the trial court abused its 

discretion by imposing consecutive sentences that caused the total length of 

his sentence to be manifestly excessive. See Anders Brief at 11, 17-18. 

Appellant “argues that by imposing consecutive sentences, the sentencing 

court imposed unwarranted and excessive punishment.” Id. at 17.

“Generally, Pennsylvania law affords the sentencing court discretion to 

impose its 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 ordinarily does not raise a substantial question.” 

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citation and 

internal quotation marks omitted). See also Commonwealth v. Hoag, 665 
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A.2d 1212, 1214 (Pa. Super. 1995) (stating an appellant is not entitled to 

“volume discount” for his crimes by having all sentences run concurrently). 

But see Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) 

(a claim that an aggregate sentence resulting from the imposition of 

consecutive sentences is excessive raises a substantial question if 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”).

“Thus, in our view, the key to 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.” Prisk, 13 A.3d at 533 

(quoting Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 

2010)). But see Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013) 

(holding that challenge to imposition of consecutive sentences, which yields 

extensive aggregate sentence, does not necessarily present substantial 

question as to discretionary aspects of sentencing, unless court's exercise of 

discretion led to sentence that is grossly incongruent with criminal conduct at 

issue and patently unreasonable).

While a substantial question may appear to exist on the grounds alleged, 

we emphasize that Appellant’s six convictions stem from his possession of six 

different narcotics. Further, the sentencing court did not impose terms of 
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incarceration for every conviction. Rather, the sentencing court imposed 

consecutive terms of imprisonment on three crimes and consecutive terms of 

probation on three crimes. In fact, the aggregate sentence imposed was lower 

than the sentence of five to ten years of incarceration followed by six years of 

probation that was requested by the Commonwealth in its sentencing 

memorandum. See Commonwealth’s Sentencing Memorandum, 4/21/23, at 

5. In seeking review of his sentences, Appellant is not entitled to any further 

“volume discount” for his multiple offenses. Hoag, 665 A.2d at 1214. Based 

upon the foregoing, we will not deem the aggregate sentence excessive in 

light of the criminal conduct at issue in this case. Prisk, 13 A.3d at 533. 

Accordingly, we conclude that Appellant has not presented a substantial 

question for our review in this regard, and we decline to review the issue 

further.

In summary, we agree with counsel that the challenges to the 

discretionary aspects of sentencing that Appellant wished to raise on appeal 

lack merit. Further, we have reviewed the certified record and do not discern 

any other claims that are non-frivolous. Therefore, we grant counsel’s 

application to withdraw and affirm Appellant’s judgment of sentence.

Application to withdraw granted. Judgment of sentence affirmed.

Judge Kunselman joins the memorandum.

President Judge Emeritus Panella concurs in the result.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 09/06/2024