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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD DAVID MARTINEZ,

Appellant No. 1320 MDA 2016

Appeal from the Judgment of Sentence June 23, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0006117-2015

BEFORE: SHOGAN, MOULTON, and PLATT,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 19, 2017

Appellant, Edward David Martinez, appeals from the judgment of 

sentence entered following his conviction of robbery and additional crimes in 

relation to the burglary of a private home in Berks County. In addition, 

appellate counsel has filed a petition to withdraw his representation and a 

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a 

withdrawal from representation on direct appeal. We grant counsel’s 

petition to withdraw and affirm the judgment of sentence.

We summarize the history of this case as follows. On November 17, 

2015, Appellant and three co-defendants went to a home in Oley Township 

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*

 Retired Senior Judge assigned to the Superior Court.
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on the mistaken belief that it was a “drug house,” with the intent to steal 

controlled substances. N.T., 6/23/16, at 5-6. The home was occupied by a 

family of three, consisting of a husband, wife, and their eleven-month-old 

child. Id. at 6. During the home invasion, the husband was shot by one of 

the four co-defendants and sustained serious bodily injuries. Id. In 

addition, the husband shot Appellant and one of his co-defendants. Id. 

Appellant and his injured co-defendant were driven to the hospital by the 

unharmed co-defendants. Id. at 7. Appellant received treatment for his 

injuries and was arrested after he was released from the hospital. Id. at 7-

8.

On January 8, 2016, the Commonwealth filed an information charging 

Appellant with a total of twenty-one counts related to the incident. 

Information, 1/8/16, at 1-4. On June 23, 2016, Appellant entered an open 

plea of guilty to one count each of aggravated assault, burglary, and 

robbery, and three counts of conspiracy.1 The trial court sentenced 

Appellant to serve an aggregate term of incarceration of fifteen to thirty-two 

years. N.T., 6/23/16, at 18. In fashioning Appellant’s sentence, the trial 

court applied the deadly weapon enhancement under 204 Pa.Code 

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1

 18 Pa.C.S. §§ 2702, 3502, 3701, and 903, respectively.
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§ 303.10.2 After sentencing was completed, the Commonwealth moved to 

dismiss the remaining counts in the information, which the trial court 

granted. Id.

On June 29, 2016, Appellant filed a pro se post-sentence motion. On 

July 11, 2016, Appellant’s counsel filed a nunc pro tunc post-sentence 

motion seeking to modify Appellant’s sentence. On July 13, 2016, the trial 

court entered an order denying both post-sentence motions and indicating 

that Appellant had thirty days in which to file a notice of appeal. This timely 

appeal followed. Both Appellant and the trial court have complied with 

Pa.R.A.P. 1925.3

As noted, counsel has filed a petition to withdraw from representation. 

Before we address the questions raised on appeal, we must resolve appellate 

counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 

1030 (Pa. Super. 2013) (en banc). There are procedural and briefing 

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2 We note that in Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. 

Super. 2014) (en banc), this Court concluded that the deadly weapon 

enhancement found at section 303.10 is not unconstitutional under Alleyne 

v. United States, 133 S.Ct. 2151 (2013) (holding that any fact other than a 

prior conviction that triggers a mandatory minimum sentence must be found 

by a jury beyond a reasonable doubt). Buterbaugh, 91 A.3d at 1270 n.10.

3

In his Pa.R.A.P. 1925(b) statement, Appellant raised the following single 

issue:

Whether the aggregate sentence in this matter is manifestly 

excessive and a product of an abuse of judicial discretion?

Pa.R.A.P. 1925(b) Statement, 9/20/16, at 1.
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requirements imposed upon an attorney who seeks to withdraw on direct 

appeal. The procedural mandates are that 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 (citation omitted).

In this case, counsel has satisfied those directives. Within the petition 

to withdraw, counsel averred that he conducted a conscientious review of 

the record and pertinent legal research. Following that review, counsel 

concluded that the present appeal is frivolous. Counsel sent Appellant a 

copy of the Anders brief and petition to withdraw, as well as a letter, a copy 

of which is attached to the petition to withdraw. In the letter, counsel 

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

private counsel.

We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide 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.
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Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

Counsel’s brief is compliant with Santiago. The brief sets forth the 

procedural history and facts of this case and outlines pertinent case 

authority. We thus conclude that the procedural and briefing requirements 

for withdrawal have been met.

Counsel presents the following issue for our review:

Whether the aggregate sentence in this matter was manifestly 

excessive and a product of an abuse of judicial discretion?

Anders Brief at 4.

Appellant’s sole issue challenges the discretionary aspects of his 

sentence. It is well settled that 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. 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:

[W]e 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. 
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[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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)).

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. 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. Commonwealth v. Malovich, 903 

A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the 

reasons the sentencing court’s actions violated the sentencing code. Id.

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

those being that Appellant brought an appropriate appeal, raised the 

challenge in a post-sentence motion, and included in his appellate brief the 

necessary concise statement of the reasons relied upon for allowance of 

appeal pursuant to Pa.R.A.P. 2119(f).4 Therefore, we next determine 

whether Appellant raises a substantial question requiring us to review the 

discretionary aspects of the sentence imposed by the trial court.

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4

 We observe the Commonwealth has conceded Appellant has complied with 

Pa.R.A.P. 2119(f). Commonwealth’s Brief at 6 n.1.
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Appellant asserts that the sentencing court abused its discretion by 

imposing a manifestly excessive sentence. However, as previously stated, 

we do not accept bald assertions of sentencing errors. Malovich, 903 A.2d 

at 1252 (citing Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 

2002)). “Rather, Appellant must support his assertions by articulating the 

way in which the court’s actions violated the sentencing code.” Id. Thus, to 

the extent Appellant’s claim is a bald allegation of trial court error at the 

time of sentencing, we conclude that he has not presented a substantial 

question for our review.

Even if we had concluded that Appellant presented a substantial 

question and were to address the merits of this claim, we would determine, 

as did the trial court, that the issue lacks merit. The trial court explained:

Appellant challenges the sentencing imposed for his 

numerous convictions. In aggregate, we imposed a term of 

incarceration for not less than [fifteen] (15) nor more than 

[thirty-two] (32) years’ incarceration. This sentence was based 

on numerous factors which clearly indicated that Appellant 

required an extensive term of incarceration. The following 

excerpt from Appellant’s sentencing hearing is illustrative:

The Court: All right. I have taken into account 

many things. Of course I have reviewed the P.S.I., 

which frankly is not favorable for the defendant. 

Despite the fact he is a young man, he has a very 

substantial prior record score. Most troubling of 

course, that includes an adjudication of a second 

degree felonious robbery as a juvenile. And 

obviously what occurred in this incident is sort of an 

outgrowth of that conduct.

I have taken into account the provisions of the 

Sentencing Guidelines. I have taken into account 
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the factual background and pattern of the case about 

which, about the best thing I can say it is malicious. 

No one was killed here. And for that we should all 

be thankful; otherwise, we would be having an 

entirely different proceeding here than we are.

I also want to point out that in looking at the 

sentencing guidelines that have been referenced by 

both counsel, if the defendant were to receive 

consecutive sentences on these counts, even at the 

very bottom of the standard range, the minimum 

sentence would be 28 years in prison, which is 

substantially more than even the Commonwealth has 

recommended here.

I note, [Appellant], you are a young man and you 

are going to get a very substantial sentence here. 

But you are going to be paroled on these charges. 

And you are not going to be an old man when that 

happens so long as you conduct yourself well and 

learn the lessons here while you are in jail. That’s 

the thing that you must remember. And you must 

remember not only for yourself but for your family as 

well.

Taking all of these matters into account, I’m going to 

[-- (pause in the proceeding while the Judge spoke 

to his tipstaff.)]

And also I want to add, [Appellant], you need to 

recognize here -- I don’t know what other people 

have told you. I don’t know what other people in the 

jail have told you. Most of those people have no 

idea what they are talking about first of all. And 

secondly, the Commonwealth has not dealt with you 

particularly harshly here. Even in their 

recommendation, which is very substantially under 

what even the bottom range guideline sentence 

would be. So you ought to walk out of this 

courtroom feeling fortunate for the disposition of this 

case considering how much more severe it could 

have been under the circumstances. . . .

[N.T., 6/23/16, at 15-17.]
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Appellant’s allegation that this [c]ourt did not adequately 

consider the aggregate sentence is without merit. During our 

deliberations, in arriving at the length of sentence, we dutifully 

considered Appellant’s delinquent history and the severity of the 

crime. Considering these factors, amongst others, in respect to 

the Commonwealth’s sentencing guidelines, our sentence was 

not manifestly excessive. Instead, this [c]ourt showed mercy, 

as the sentence the Appellant received was well below the 

bottom of the standard range.

Trial Court Opinion, 9/21/16, at 2-3. Therefore, if we had addressed this 

issue, we would have concluded Appellant failed to establish that the trial 

court abused its discretion in fashioning Appellant’s sentence.

We also have independently reviewed the record in order to determine 

whether there are any non-frivolous issues present in this case that 

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. 

Super. 2014). Having determined that there are no meritorious issues, we 

grant Appellant’s counsel permission to withdraw, and we affirm the 

judgment of sentence.

Petition of counsel to withdraw is granted. Judgment of sentence 

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/19/2017