J-S27008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY FIGUEROA 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1959 EDA 2017

Appeal from the Judgment of Sentence May 25, 2017

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

No(s): CP-51-CR-0002676-2014, 

CP-51-CR-0004149-2012, CP-51-CR-0005488-2014

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 21, 2018

Anthony Figueroa appeals from the judgment of sentence, imposed in 

the Court of Common Pleas of Philadelphia County, following the revocation 

of his probation at multiple bills. Counsel has moved to withdraw pursuant to 

Anders and Santiago.

1

 Upon review, we affirm and grant counsel’s petition 

to withdraw.

On July 2, 2012, Figueroa was convicted, in a nonjury trial before the 

Honorable Charles E. Ehrlich, of three violations of the Uniform Firearms Act 

____________________________________________

1 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009). 
J-S27008-18

- 2 -

(“2012 case”).2 On August 27, 2012, Judge Ehrlich sentenced him to an 

aggregate sentence of 111⁄2 to 23 months’ imprisonment, followed by a 5-year 

probationary term. This Court affirmed Figueroa’s judgment of sentence, and 

discretionary review was not sought. 

While the 2012 case was pending on direct review, Figueroa was 

arrested on July 24, 2013, and charged with possession of a controlled 

substance3 (“PWID”) and conspiracy4 (“2013 case”). On December 23, 2013, 

Figueroa appeared before Judge Ehrlich for a violation of probation hearing 

with respect to the 2012 case. Judge Ehrlich ordered that probation be 

continued, directed Figueroa to enroll in school, and ordered him to seek and 

maintain employment. 

On April 22, 2014, Figueroa was again arrested and charged with PWID 

(“2014 case”). On May 28, 2014, Figueroa appeared before Judge Ehrlich on 

the 2013 case and pled guilty to PWID and conspiracy. Judge Ehrlich imposed 

an aggregate, negotiated sentence of 111⁄2 to 23 months’ imprisonment, 

followed by 3 years’ probation. Figueroa did not appeal this judgment of 

sentence. On that same date, Figueroa also pled guilty before Judge Ehrlich 

____________________________________________

2 Figueroa was convicted of carrying a firearm without a license, 18 Pa.C.S.A. 

§ 6106; carrying a firearm in Philadelphia, 18 Pa.C.S.A. § 6108; and 

possession of a firearm by a prohibited person, 18 Pa.C.S.A. § 6105. 

3 35 P.S. § 780-113(a)(30).

4 18 Pa.C.S.A. § 903.
J-S27008-18

- 3 -

to PWID in conjunction with the 2014 case. Judge Ehrlich again imposed a 

negotiated sentence of 111⁄2 to 23 months’ imprisonment, followed by 3 years 

of probation. Also on that date, Judge Ehrlich held a probation violation 

hearing with regard to the 2012 case, after which Figueroa was found to be in 

violation. His probation was revoked as to the 2012 case, and Judge Ehrlich 

imposed a sentence of 111⁄2 to 23 months’ imprisonment, followed by 3 years’ 

probation, to be served concurrently to the sentences imposed in the 2013 

and 2014 cases. 

On September 6, 2016, Figueroa was once again arrested and charged 

with PWID (“2016 case”). On May 8, 2017, he appeared before the Honorable 

Stephanie Sawyer and pled guilty. Sentencing was deferred.

On May 25, 2017, Figueroa again appeared before Judge Ehrlich, 

charged with violating his probation in the 2012, 2013 and 2014 cases. During 

that hearing, Judge Ehrlich stated the following:

THE COURT: What I don't understand is when I first sentenced 

you – I’m going back to my original notes -- I think the sentence 

I gave you originally was time in to 23 months. You told me you 

had a job with your uncle doing landscaping, going to get your 

GED, and I talked to you about the issues with the juvenile 

supervision. I think Judge Rebstock had to issue a bench warrant 

for you. You went to Glen Mills, from what I remember, and the 

DA was asking for 11⁄2 to 3 years.

Then comes another possession with intent to deliver case in 

2013, and I resentenced you and kept you in county. Then 

another one in 2014.

So what I don't understand is: I think people, as Mr. Mincarelli 

says, can benefit from programs, can benefit from being in the 

county prison, a little bit closer supervision and contact with the 

judge. But this is the third time you’ve been back before me on a 
J-S27008-18

- 4 -

violation, and it’s the same thing. You were dealing drugs. That’s 

what it is.

. . .

THE COURT: Also possession with the intent to deliver. What I 

had you on originally was a gun case, a constructive possession 

case, violation of the Uniform Firearms Act. 

So what I don't understand is this: We went through this in 2013, 

in 2014, and now we’re in 2016 and 2017. What is it that you 

didn’t get before?

I can understand maybe Glen Mills didn’t impress you or whatever 

it was. But I would have thought when you first came in front of 

me and saw the DA asking for 11⁄2 to 3, you might see that we 

were in a different ballgame here, a different place. And then 

comes the other things, so it seems like nothing will stop the drug 

dealing.

I understand why you’re doing it. You’re doing it for money. It’s 

why most people do. The problem is it puts poison in the 

community. That’s the problem.

I understand sometimes people do it and then they stop. But you 

had -- this is your fifth PWID, if I'm correct. Two as a juvenile 

and three as an adult, right?

MS. ROSARIO: Yes.

THE COURT: I mean, is there something I’m not aware of, Mr. 

Figueroa?

THE DEFENDANT: I was -- I was doing what I was supposed to do 

at first. But I was out there working. I was doing what I was 

doing. I got my job again. If I go home now, I go straight home 

and go straight to work. I got my uncle that got me my job.

THE COURT: You told me this before. You were going to go into 

landscaping with your uncle.

THE DEFENDANT: I got pay stubs and everything, my income tax.

THE COURT: Then why are you dealing drugs? Why is this the 

fifth drug dealing conviction if you have a job and you have people 

helping you and pay stubs and everything else? You’re paying 

fines and costs, but you're out there drug dealing. You know, at 

some point it sort of has to stop.
J-S27008-18

- 5 -

What was negotiated with Judge Sawyer?

MR. MINCARELLI: 111⁄2 to 23 plus, I believe, 3 or 4 years. I forget.

MS. ROSARIO: I think it was actually like 3 to 23 or something 

like that, like a time-in sentence. I spoke with the DA on that case 

who indicated it was a weak case and that was the reason for 

making that offer, and because he had these VOPs in front of Your 

Honor.

THE COURT: Look, I don't know what’s going to stop it, and I try 

to give people chances, but when we’re on the fifth PWID, I have 

to look at things differently than I did when were [sic] in 2013 and 

2014.

N.T. Resentencing, 5/25/17, at 9-13.

After the hearing, Judge Ehrlich found Figueroa to be in violation of his 

probation and revoked him on all three cases. The court sentenced Figueroa 

to an aggregate of 30 to 60 months’ incarceration, followed by 5 years’ 

probation. Figueroa filed timely post-sentence motions, which were not ruled 

upon,5followed by a timely notice of appeal. On June 30, 2017, counsel filed 

a notice of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). 

In order to withdraw pursuant to Anders, counsel must: (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) 

____________________________________________

5 Pursuant to Pa.R.Crim.P. 708(E), the filing of a motion to modify sentence 

imposed after a revocation of probation will not toll the 30-day appeal period, 

unless the trial court expressly grants reconsideration. See Pa.R.Crim.P. 708, 

Comment. Thus, because the deadline to appeal was to expire on or about 

June 24, 2017 and Judge Ehrlich had not yet ruled upon Figueroa’s timelyfiled motion to modify, counsel filed a notice of appeal on June 20, 2017 in 

order to preserve Figueroa’s appellate rights. 
J-S27008-18

- 6 -

file a brief referring to anything in the record that might arguably support an 

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 raising any additional 

points that the appellant deems worthy of review. Commonwealth v. 

Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009), the Pennsylvania Supreme Court held 

that, in order to withdraw under Anders, counsel must also state his reasons 

for concluding his client’s appeal is frivolous.

Instantly, counsel’s petition states that he has made an examination of 

the record and concluded the appeal is wholly frivolous. Counsel indicates

that he supplied Figueroa with a copy of the brief and a letter explaining his 

right to proceed pro se, or with privately-retained counsel, and to raise any 

other issues he believes might have merit.6 Counsel has also submitted a 

brief, setting out the single issue raised by Figueroa and, pursuant to the 

dictates of Santiago, explains in his petition to withdraw why he believes the 

appeal to be frivolous. Thus, counsel has substantially complied with the 

requirements for withdrawal. 

Counsel having satisfied the procedural requirements for withdrawal, 

this Court must conduct its own review of the proceedings and render an 

____________________________________________

6 Figueroa has not submitted any additional or supplemental filings to this 

Court. 
J-S27008-18

- 7 -

independent judgment as to whether the appeal is, in fact, wholly frivolous. 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

Figueroa claims that his sentence was manifestly excessive. This claim 

raises a challenge to the discretionary aspects of sentencing. Such a claim 

does not entitle an appellant to review as a matter of right. Commonwealth 

v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather, before this Court 

can address such a challenge, an appellant must comply with the following 

requirements:

An appellant challenging the discretionary aspects of his sentence 

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

(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. 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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 

2011). 

Here, Figueroa filed a post-sentence motion to modify sentence, filed a 

timely appeal, and includes in his brief a statement of reasons in support of 

allowance of appeal pursuant to Pa.R.A.P. 2119(f). Figueroa having complied 

with the procedural requirements, we must now determine if he has raised a 

substantial question for our review. 

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. A substantial question 

exists “only when the appellant advances a colorable argument 

that the sentencing judge’s actions were either: (1) inconsistent 
J-S27008-18

- 8 -

with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015), quoting 

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal 

citations omitted).

In his Rule 2119(f) statement, Figueroa asserts that his sentence was 

excessive and that the trial court abused its discretion by failing to order a 

pre-sentence investigation (“PSI”) report prior to imposing sentence. We have 

previously held that a court’s failure to order a PSI upon resentencing raises 

a substantial question. See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 

724 (Pa. Super. 2013). Accordingly, we will review the merits of Figueroa’s 

claim.

We begin by noting that trial courts enjoy broad discretion with respect 

to sentencing. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). The 

court’s sentence will not be disturbed absent a manifest abuse of discretion. 

“An abuse of discretion is more than just an error in judgment and, on appeal, 

the trial court will not be found to have abused its discretion unless the record 

discloses that the judgment exercised was manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will.” Commonwealth v. Smith, 673 

A.2d 893, 895 (Pa. 1996), citing Commonwealth v. Lane, 424 A.2d 1325, 

1328 (Pa. 1981). 

Under Pennsylvania's Sentencing Code, a trial court must “follow the 

general principle that the sentence imposed should call for confinement that 
J-S27008-18

- 9 -

is consistent with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). 

The Pennsylvania Rules of Criminal Procedure vest a sentencing judge 

with the discretion to order a PSI as an aid in imposing an individualized 

sentence. Specifically, Rule 702 provides, in relevant part, the following:

702. Aids in Imposing Sentence

(A) Pre-sentence Investigation Report

(1) The sentencing judge may, in the judge’s discretion, 

order a pre-sentence investigation report in any case.

(2) The sentencing judge shall place on the record the 

reasons for dispensing with the pre-sentence investigation 

report if the judge fails to order a pre-sentence report in any 

of the following instances:

(a) when incarceration for one year or more is a 

possible disposition under the applicable sentencing 

statutes[.]

Pa.R.Crim.P. 702(A). We have previously held that a sentencing judge must 

either order a PSI report or conduct sufficient presentence inquiry such that, 

at a minimum, the court is apprised of the particular circumstances of the 

offense, not limited to those of record, as well as the defendant’s personal 

history and background. Commonwealth v. Goggins, 748 A.2d 721, 728 

(Pa. Super. 2000) (en banc). Although Rule 702(A)(2) requires the court to 

document the reasons for not ordering a pre-sentence report, this Court has 

held that sentencing courts have some latitude in how this requirement is 

fulfilled. Specifically, “technical noncompliance with the requirements of Rule 
J-S27008-18

- 10 -

702(A)(2) might have been rendered harmless had the court elicited sufficient 

information during the colloquy to substitute for a PSI report, thereby allowing 

a fully informed sentencing decision[.]” Commonwealth v. Flowers, 950 

A.2d 330, 333 (Pa. Super. 2008). 

Here, the sentencing court did not state its reasons for dispensing with 

a PSI. However, the record demonstrates that Judge Ehrlich was wellacquainted with Figueroa and his circumstances. Figueroa first appeared 

before Judge Ehrlich in 2012, when he was convicted of three VUFA charges. 

Prior to sentencing in that case, Judge Ehrlich ordered a PSI. Over the ensuing 

five years, Figueroa appeared before Judge Ehrlich three additional times as 

a result of probationary violations. By the May 2017 resentencing hearing, 

Judge Ehrlich was very familiar with Figueroa and his extensive criminal 

history, noting that Figueroa had five convictions for PWID and that all 

attempts to rehabilitate him had failed. In addition, the record reflects that a 

Gagnon II7 hearing summary was prepared for Judge Ehrlich prior to 

Figueroa’s resentencing, reflecting his most recent violations, a supervision 

summary, and a sentencing recommendation from the department of 

probation. In sum, we conclude that the trial court possessed more than 

sufficient information about Figueroa’s history and circumstances to enable it 

to arrive at a fully informed, individualized sentencing decision.

____________________________________________

7 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
J-S27008-18

- 11 -

Moreover, given Figueroa’s recidivism and apparent inability to 

rehabilitate, the court was within its discretion to impose the instant sentence 

that is, in any event, far below the statutory maximum.8 The court believed

that Figueroa was in need of programming only available in a state institution. 

As the court noted: 

I hope the state will focus you differently. I hope when you get 

out, you’ll be different; otherwise, you’ll wind up back in front of 

other judges and you’ll end up spending a good part of your life in 

jail. 

Whatever keeps bringing you to this -- whether it’s job training, 

counseling -- I don’t know what it is. You’ve been through the 

juvenile system, in county prison, all the other programs. 

Hopefully this will focus you.

N.T. Resentencing, 5/5/17, at 14. 

Accordingly, we can discern no abuse of discretion on the part of the 

trial court in imposing its sentence. Figueroa is entitled to no relief. 

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/21/18

____________________________________________

8 The maximum penalty for PWID is a term of not more than 15 years, or 180 

months. See 35 P.S. § 780-113(f)(1). Figueroa received an aggregate term 

of imprisonment of 30 to 60 months.