J-S30006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SEAN LONGBOTTOM

Appellant No. 23 EDA 2014

Appeal from the Judgment of Sentence November 22, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006930-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 17, 2015

Appellant, Sean Longbottom, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his 

negotiated guilty plea to possessing instruments of crime (“PIC”) and 

terroristic threats. We affirm and grant counsel’s petition to withdraw.1 

The relevant facts and procedural history of this appeal are as follows. 

On the afternoon of May 9, 2013, Richard Barr was washing his vehicle in 

the driveway at 6611 Hegerman Street in Philadelphia. Appellant, a nextdoor neighbor, appeared on his own porch and began to yell at Mr. Barr. 

After yelling at Mr. Barr, Appellant briefly left the porch. When Appellant 

returned, he pointed a firearm at Mr. Barr and said, “I’m going to get you, 

____________________________________________

1 18 Pa.C.S.A. §§ 907, 2706, respectively. 
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I’ve got something for you, this is the beginning.” (N.T. Plea and Sentencing 

Hearing, 11/22/13, at 7). At the same time, Mr. Barr’s family dog entered 

the driveway. Appellant saw the dog and said, “I got something for that dog 

too.” (Id.) 

On November 22, 2013, Appellant executed a written guilty plea 

colloquy. That same day, Appellant pled guilty to PIC and terroristic 

threats.2 In exchange, the Commonwealth recommended a time-served 

sentence, followed by two (2) years of probation. The Commonwealth also 

agreed to withdraw additional charges. Following an oral colloquy, the court 

accepted Appellant’s plea. Pursuant to the plea agreement, the court 

immediately sentenced Appellant to time served to six (6) months’ 

imprisonment for terroristic threats. For the PIC conviction, the court 

imposed a consecutive term of two (2) years’ probation. The court also 

granted immediate parole. Appellant did not file post-sentence motions. 

Appellant timely filed a notice of appeal on Monday, December 23, 

2013. On May 8, 2014, the court ordered Appellant to file a concise 

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). 

On May 29, 2014, counsel filed a statement of intent to file a brief pursuant 

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 

____________________________________________

2 The offenses of PIC and terroristic threats were graded as first degree 

misdemeanors. 
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(1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 

(1981). 

As a preliminary matter, appellate counsel seeks to withdraw his 

representation pursuant to Anders and Commonwealth v. Santiago, 602 

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) 

petition the Court for leave to withdraw, certifying that after a thorough 

review of the record, counsel has concluded the issues to be raised are 

wholly frivolous; 2) file a brief referring to anything in the record that might 

arguably support the appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se 

brief to raise any additional points the appellant deems worthy of review. 

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance 

with these requirements is sufficient. Commonwealth v. Wrecks, 934 

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent 

requirements have been met, this Court must then make an independent 

evaluation of the record to determine whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 

(Pa.Super. 1997)). 

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation: 
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Neither Anders nor McClendon requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are 

references to anything in the record that might arguably 

support the appeal. 

* * * 

Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held: 

[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. 

Id. at 178-79, 978 A.2d at 361. 

Instantly, appellate counsel filed a petition for leave to withdraw. The 

petition states counsel performed a conscientious examination of the record 

and determined the appeal would be wholly frivolous. Counsel also supplied 

Appellant with a copy of the withdrawal petition, the brief, and a letter 

explaining Appellant’s right to proceed pro se or with new privately retained 

counsel to raise any additional points Appellant deems worthy of this Court’s 

consideration. In his Anders brief, counsel provides a summary of the facts 

and procedural history of the case. Counsel refers to facts in the record that 
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might arguably support the issues raised on appeal and offers citations to 

relevant law. The brief also provides counsel’s conclusion that the appeal is 

wholly frivolous. Thus, counsel has substantially complied with the 

requirements of Anders and Santiago. 

As Appellant has filed neither a pro se brief nor a counseled brief with 

new privately retained counsel, we review this appeal on the basis of the 

issues raised in the Anders brief: 

WAS [APPELLANT’S] GUILTY PLEA VALID? 

WAS [APPELLANT] COMPETENT TO ENTER A PLEA IN THAT 

HE HAD NOT TAKEN HIS REQUIRED DOSAGE OF 

MEDICATION PRIOR TO ENTRY OF THE PLEA? 

WAS THE SENTENCE IMPOSED BY THE COURT VALID IN 

LIGHT OF THE FACT THAT [APPELLANT] WAS NOT 

AFFORDED ALLOCUTION PRIOR TO SENTENCING? 

WAS [APPELLANT’S] SENTENCE LEGAL? 

(Anders Brief at 3). 

In his first and second issues, Appellant baldly asserts he did not enter 

a valid guilty plea. Further, Appellant claims he was under a psychiatrist’s 

care at the time of the plea hearing, and he failed to take his last two doses 

of prescription medication before entering the plea. Appellant, however, 

failed to preserve these claims by objecting during the plea colloquy or filing 

a post-sentence motion to withdraw the plea. See Commonwealth v. 

Lincoln, 72 A.3d 606 (Pa.Super. 2013), appeal denied, ___ Pa. ___, 87 

A.3d 319 (2014) (explaining defendant wishing to challenge voluntariness of 
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guilty plea on direct appeal must either object during plea colloquy or file 

motion to withdraw plea within ten days of sentencing; failure to employ 

either measure results in waiver). Moreover, Appellant cites nothing to 

demonstrate how the absence of medication rendered him incompetent to 

enter his plea.3 See Commonwealth v. Prendes, 97 A.3d 337 (Pa.Super. 

2014), appeal denied, ___ Pa. ___, 105 A.3d 736 (2014) (stating 

Pennsylvania law presumes defendant who entered guilty plea was aware of 

what he was doing, and defendant bears burden of proving otherwise). 

Therefore, Appellant’s first two issues are waived. 

In his third issue, Appellant argues the court denied his right to 

allocution prior to the imposition of sentence. Significantly, “a denial of the 

right of allocution does not create a non-waivable challenge to the legality of 

the sentence.” Commonwealth v. Jacobs, 900 A.2d 368, 376 (Pa.Super. 

2006) (en banc), appeal denied, 591 Pa. 681, 917 A.2d 313 (2007). “[L]ike 

most legal errors, it is nevertheless waivable under Pennsylvania law.” Id.

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3 The record shows that Appellant was an active participant in the plea 

proceedings. Specifically, the prosecutor informed the court that the parties 

had negotiated a “stay away order,” prohibiting Appellant from contacting 

Mr. Barr or Mr. Barr’s girlfriend. (See N.T. Plea and Sentencing Hearing at 

8.) Appellant interjected, “Can I ask you a question, does that stay away 

order work both ways?” (Id. at 11). The court responded that it did, and 

Mr. Barr and his girlfriend could not antagonize Appellant. The court and 

Appellant also discussed the consequences of violating the stay away order, 

and the need for Appellant to take his medication as prescribed. At the 

conclusion of this discussion, Appellant thanked the court for its concern. 
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at 377. Here, Appellant failed to raise this issue with the trial court in the 

first instance, so it is waived.4 See id. 

In his fourth issue, Appellant claims the offenses of PIC and terroristic 

threats were graded as first degree misdemeanors. Appellant also insists 

the court imposed illegal sentences. We disagree. 

“Issues relating to the legality of a sentence are questions of law....” 

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal 

denied, 598 Pa. 755, 955 A.2d 356 (2008). “The defendant or the 

Commonwealth may appeal as of right the legality of the sentence.” 42 

Pa.C.S.A. § 9781(a). See also Commonwealth v. Edrington, 780 A.2d 

721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be 

waived, where reviewing court has proper jurisdiction). When the legality of 

a sentence is at issue on appeal, our “standard of review over such 

questions is de novo and our scope of review is plenary.” Diamond, supra

at 256. “If no statutory authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. An illegal sentence must be 

vacated....” Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super. 

2011) (quoting Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super. 

2011)). 

The Crimes Codes governs the sentencing of first degree 

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4 The court imposed the sentence recommended as part of the plea 

agreement. 
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misdemeanors as follows: 

§ 1104. Sentence of imprisonment for misdemeanors 

A person who has been convicted of a misdemeanor 

may be sentenced to imprisonment for a definite term 

which shall be fixed by the court and shall be not more 

than: 

(1) Five years in the case of a misdemeanor of 

the first degree. 

* * * 

18 Pa.C.S.A. § 1104(1). 

Instantly, the court sentenced Appellant to time served to six (6) 

months’ imprisonment for terroristic threats. For the PIC conviction, the 

court imposed a consecutive term of two (2) years’ probation. Neither 

sentence exceeded the statutory maximum allowed for a first degree 

misdemeanor. See id. Therefore, Appellant is not entitled to relief on this 

issue. See Pombo, supra. Following our own independent evaluation of 

the record, we affirm and grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/17/2015