J-S66022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHACQAN MCCLENDON

Appellant No. 386 WDA 2015

Appeal from the Judgment of Sentence entered January 21, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No: CP-25-CR-0001969-2013

BEFORE: OLSON, STABILE, and STRASSBURGER,*JJ.

MEMORANDUM BY STABILE, J.: FILED MARCH 8, 2016

Appellant, Shacquan McClendon, appeals from the judgment of 

sentence entered by the Court of Common Pleas of Erie County, following a 

jury trial that convicted Appellant of robbery, recklessly endangering another 

person (2 counts), and theft by unlawful taking.1 Appellant’s counsel filed a 

petition to withdraw, alleging that no non-frivolous grounds exist for appeal, 

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we 

affirm the judgment of sentence and grant counsel’s petition to withdraw.

The trial court summarized the relevant background as follows.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3701(a)(1)(ii), 18 Pa.C.S.A. § 2705 (2 counts), and 18 

Pa.C.S.A. § 3921, respectively.
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On May 31, 2013, at approximately 9:00 p.m., victims 

Chelsea Seyler and Ryan Droney [were] walking home from 

Sanders Market, located on East 6th street in the city of Erie. 

While they [were] walking westward on East 6th street, Appellant 

walked past [sic] them from behind, turned around, and pointed 

a black handgun at them. Appellant stood approximately one 

foot away. Seyler immediately recognized Appellant as they 

both graduated from East High School in 2012 and she knew him 

from music class. Seyler and Appellant were also Facebook 

friends. Although Appellant’s head was covered by his 

sweatshirt’s hood, both Seyler and Droney could see Appellant’s 

entire face.

With his gun pointed at the victims, Appellant told them to 

empty their pockets. Appellant took a cellular phone from 

Seyler, searched Droney’s pockets, and removed $20.00 from 

his sweatshirt pocket. After a moment, Appellant gave the cell 

phone back to Seyler, apologized to them both, and stated that, 

“it’s been hard and tough times.” Appellant then fled the scene 

and the victims walked back home.

Approximately 30 minutes after the robbery, the victims 

called [the] police. Police arrived at their home and Seyler gave 

them Appellant’s name as the assailant. Seyler also identified 

Appellant during a police photo lineup on June 4, 2013.

On January 21, 2014, appellant’s jury trial commenced. 

Both victims unequivocally identified Appellant as their assailant. 

Although Appellant denied robbing the victims, he admitted that 

he knew Seyler from school. Following testimony, the jury found 

Appellant guilty of the foregoing offenses. 

After trial, the Commonwealth filed its notice of intent 

under 42 Pa.C.S.A. § 9712 (a), requesting imposition of a 5-year 

mandatory minimum for robbery. On March 14, 2014, appellant 

was sentenced to a mandatory minimum term of 5 to 10 years’ 

imprisonment at Count 1, robbery. The remaining counts 

merged for sentencing purposes.

On March 24, 2014, Appellant filed a Motion To Reconsider 

Sentence, which this [c]ourt denied on March 26, 2014. 

Appellant filed a timely Notice of Appeal on April 21, 2014. In 

response to this [c]ourt’s 1925(b) Order, Appellant filed a 
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Statement of Matters Complained of on Appeal on June 12, 

2014. 

Trial Court Opinion, 7/7/14, at 1-2 (internal citations and footnotes omitted). 

On January 21, 2015, a re-sentencing hearing was held following the 

decision from this Court vacating Appellant’s prior sentence and remanding 

for a new sentence in light of the Supreme Court’s decision in Alleyne v. 

United States, 133 S.Ct. 2151 (2013). Commonwealth v. McClendon, 

113 A.3d 348 (Pa. Super. 2014). Appellant was re-sentenced to an 

aggregate of thirty-three to one-hundred twenty months of incarceration and 

was credited for time served. Appellant filed a post-sentence motion on 

January 30, 2015, which was denied. Appellant timely appealed. As 

ordered, Appellant filed a Pa.R.A.P. 1925(b) statement, and Appellant’s 

counsel simultaneously filed a statement of intent to file an Anders brief. 

On August 31, 2015, Appellant’s counsel filed an Anders brief and a 

petition for leave to withdraw as counsel. Counsel’s Anders brief raises the 

following issue for our review: “Whether the appellant’s sentence is 

manifestly excessive, clearly unreasonable and inconsistent with the 

objectives of the Sentencing Code?” Anders/Santiago Brief at 3. 

When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first examining counsel’s petition to 

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 

2007) (en banc). In requesting a withdrawal, counsel must satisfy the 

following procedural requirements: 1) petition the court for leave to 

withdraw stating that, after making a conscientious examination of the 
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record, counsel has determined that the appeal would be frivolous; 2) 

provide a copy of the brief to the defendant; and 3) advise the defendant 

that he or she has the right to retain private counsel, proceed pro se or raise 

additional arguments that the defendant considers worthy of the court’s 

attention. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

Instantly, counsel’s petition to withdraw from representation provides 

that counsel reviewed the record and concluded that the appeal is frivolous. 

Furthermore, counsel notified Appellant that she was seeking permission to 

withdraw and provided Appellant with copies of the petition to withdraw and 

her Anders brief. Counsel also advised Appellant of his right to retain new 

counsel, to proceed pro se, or to raise any additional points he deems 

worthy of this Court’s attention. Accordingly, we conclude that counsel has 

satisfied the procedural requirements of Anders. 

We next must determine whether counsel’s Anders brief complies with 

the substantive requirements of Santiago, wherein our Supreme 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.
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Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates 

that she has complied with the briefing requirements of Santiago. 

Once counsel has met her obligations, the reviewing court must fully 

examine the proceedings and make an independent judgment as to whether 

the appeal is, in fact, wholly frivolous. Santiago, 978 A.2d at 355 n.5. 

Thus, we now turn to the merits of Appellant’s appeal. 

Appellant argues that, although the trial court sentenced him within 

the guidelines, it failed to consider the factors set out in 42 

Pa.C.S.A. § 9721(b) and imposed a sentence that “is manifestly excessive, 

clearly unreasonable and inconsistent with the objectives of the Pennsylvania 

Sentencing Code.” Anders/Santiago Brief at 6. In support of this 

contention, Appellant only contends that the trial court failed to take into

consideration the mitigating factors in his case, including Appellant’s young 

age at the time of the offense, that Appellant was in his second year at 

Mercyhurst University and majoring in Culinary Arts, that Appellant had no 

prior record, and that Appellant apologized to the victims and returned the 

property taken during the robbery. Id. at 6-7.

When reviewing a challenge to the trial court’s discretion, our standard 

of review is as follows.

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. 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 
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unreasonable, or the result of partiality, prejudice, bias, or illwill.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) 

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 

2002), appeal denied, 64 A.3d 630 (Pa. 2003)).

An appellant’s right to appeal a discretionary aspect of sentence is not 

absolute. Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 

2011). 

Before we reach the merits of this [issue], we must engage in a 

four part analysis to determine: (1) whether the appeal is 

timely; (2) whether Appellant preserved his issue; (3) whether 

Appellant's brief includes a [Pa.R.A.P. 2119(f)] concise 

statement of the reasons relied upon for allowance of appeal 

with respect to the discretionary aspects of sentence; and (4) 

whether the concise statement raises a substantial question that 

the sentence is appropriate under the sentencing code. . . . 

Finally, if the appeal satisfies each of these four requirements, 

we will then proceed to decide the substantive merits of the 

case. 

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014) 

appeal denied, 109 A.3d 678 (Pa. 2015). Appellant has complied with the 

first three of these requirements as he has filed a timely appeal, preserved 

his issue through a post-sentence motion, and his brief includes a Rule 

2119(f) statement. We ordinarily next would determine if Appellant’s Rule 

2119(f) statement presents a substantial question for review. As explained 

below, we need not resolve that question.

Even if Appellant had a raised a substantial question, he still cannot 

obtain relief. Contrary to Appellant’s claim, our review of the transcript of 
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the re-sentencing hearing indicates that the trial court did consider the 

factors set forth in Section 9721(b) as well as the particular mitigating 

circumstances that Appellant points out. See N.T. Sentencing, 1/21/15, 8-

9, 11, 14-16, 22-23. The trial court specifically stated the following at 

Appellant’s re-sentencing hearing.

In this case I’ve considered the Pennsylvania Sentencing 

Code and it’s [sic] various factors. 

 . . . . 

Initially the sentencing of the [c]ourt was 60 months to 10 

years, but I make the following observations: The guidelines are 

40 to 54 months. And normally I pick a sentence here at the 

bottom end of the standard range because he has no prior 

record. Pastor Sanders and his mother made a little headway 

with me. There’s nothing mitigated, nothing at all about this 

offense, okay, but I’m going to go below the standard range, the 

bottom end of the standard range by a little bit because I do 

think that his young man has rehabilitative potential and I don’t’ 

believe every individual is as bad as the worst thing they’ve ever 

done. So I look at crimes but I sentence individuals. 

 . . . .

So here I am going to impose a sentence . . . of 33 months at 

the bottom end, which is seven months below the minimum of 

the guidelines. Not as low as I might have gone. Not as high as 

I was going to go when I came out here. But the people that 

have, participated and I’ve come down on that number, simply 

because I think he has rehabilitative potential. . . . I can’t go 

any lower than that. To impose less of a sentence would be to 

diminish the seriousness of what you did. 

N.T. Sentencing, 1/21/15, at 26-28. Accordingly, Appellant’s argument that 

the trial court failed to consider his mitigating circumstances fails. We 

therefore agree with counsel that the issue Appellant seeks to litigate in this 
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appeal is wholly frivolous. Further, we have reviewed the record and we do 

not discern any non-frivolous issues that Appellant could have raised. As 

such, we affirm the judgment of sentence and grant counsel’s petition to 

withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/8/2016