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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BARRY LEE CRESPO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 623 WDA 2023

Appeal from the Judgment of Sentence Entered May 1, 2023

In the Court of Common Pleas of Bedford County 

Criminal Division at No(s): CP-05-CR-0000343-2008

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY PANELLA, P.J.E.: FILED: September 13, 2024

Barry Lee Crespo appeals from the judgment of sentence imposed for 

his convictions of involuntary deviate sexual intercourse, unlawful contact with 

a minor, statutory sexual assault, five counts of aggravated indecent assault, 

six counts of corruption of minors, and six counts of indecent assault.1

Crespo’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 

738 (1967), and a petition to withdraw as counsel. We grant counsel’s petition 

to withdraw and affirm the judgment of sentence.

Before we address the merits of this appeal, we note with extreme 

displeasure the Commonwealth’s failure to file an appellee’s brief. “An 

appellee is required to file a brief that at minimum must contain a summary 

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1 18 Pa.C.S.A. §§ 3123(a)(7), 6301(a)(1), 3122.1, 3125(a)(8), 6301(a)(1), 

and 3126(a)(8), respectively.
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of argument and the complete argument for appellee.” Commonwealth v. 

Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (internal quotation marks and 

citation omitted). In Pappas, the panel referred to the Commonwealth’s 

failure to file a proper appellee’s brief as “unacceptable.” Id. We echo that 

opinion and remind the Commonwealth of its obligation to file an advocate’s 

brief in future appeals. In light of the extremely serious charges and 

convictions, it is entirely unacceptable that the Commonwealth did not file an 

advocate’s brief in this case.2

The facts of this case were aptly summarized by a previous panel of this 

Court:

The facts leading to [Crespo’s] conviction involved his engaging in 

sex acts with a fourteen-year[-]old female. Specifically, [Crespo] 

was a youth advocate counselor employed by the Somerset Youth 

Advocate Program, a non-profit agency providing youth 

counseling services for Bedford County Children and Youth 

Services. As part of his employment, [Crespo] provided 

counseling services to the victim, N.N. On November 20, 2007, 

N.N. reported to Pennsylvania State Police that [Crespo] had

sexually assaulted her. When confronted by police, [Crespo] 

provided a false alibi, including altered phone records. [Crespo] 

also doctored work time sheets, relative to the time admittedly 

spent with the victim. The time sheets were doctored prior to the 

allegations coming forward.

At trial, the victim related that on two occasions [Crespo] 

placed his finger in her vagina. She also testified that during a 

separate incident [Crespo] performed oral sex on her and placed 

his fingers in her vagina while in his car. The victim further 

reported that [Crespo] took her to a Super 8 motel where he 

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2 By way of a letter dated January 26, 2024 from the Deputy Prothonotary of 

the Superior Court, the Commonwealth was advised that the Brief for the 

Appellee was due by February 26, 2024. 
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engaged in oral sex and digital penetration. Finally, the victim 

testified to an incident that occurred when [Crespo] took her to 

get a tattoo covered.

[a] On this occasion, [Crespo] and the victim 

stayed at a motel together. Police confirmed that [Crespo] paid 

for the motel and traveled together with the victim and met with 

[Crespo’s] cousin, who was a tattoo artist. The victim provided 

that at the motel [Crespo] had sexual intercourse with her after 

they smoked marijuana and consumed beer. The following day, 

[Crespo] attempted to have sex with the victim again, and also 

made her manually stimulate him. The victim indicated that 

[Crespo] did not penetrate her vagina during this incident. In 

addition, the victim acknowledged during direct examination that 

she had been in a sexual relationship with an eighteen-year[-]old 

boy, and that [Crespo] did not approve. According to the victim, 

[Crespo] was jealous of this relationship. The victim further 

accurately informed the jury that [Crespo] had undergone a 

vasectomy.

[a] The victim’s tattoo was below her waist and 

consisted of the name of a boy she had previously run 

away with at the age of thirteen. She admitted telling 

[Crespo] that she wanted it covered.

Commonwealth v. Crespo, 788 WDA 2012, *1-3 (Pa. Super. filed Aug. 28, 

2013) (unpublished memorandum).

The jury found Crespo guilty as noted above. The trial court sentenced 

Crespo to 20 to 40 years’ incarceration. Crespo filed his first direct appeal and 

this Court affirmed on July 27, 2010. Crespo filed multiple PCRA petitions in 

the ensuing years and received relief in the form of a new sentencing hearing 

on May 1, 2023.3 Crespo was eventually sentenced to 9 to 20 years’ 

incarceration.

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3 Crespo’s original sentence was vacated because Crespo was sentenced to a 

mandatory minimum sentence under 42 Pa.C.S.A. § 9718. The version in 

(Footnote Continued Next Page)
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Crespo filed a timely post-sentence motion and direct appeal. Counsel 

filed a timely statement of intent to file an Anders brief. See Pa.R.A.P. 

1925(c)(4). On appeal, counsel has filed an Anders brief. Counsel raises one 

claim, that the court abused its discretion in imposing an excessive sentence 

by running count 1 and count 9 consecutive to each other. See Anders brief, 

at 11. Counsel also filed a petition to withdraw as counsel. Crespo filed a pro 

se brief raising one claim: “Whether [Crespo] was prejudiced by counsel’s act 

or omission.” Pro Se brief, at iii (unnecessary capitalization omitted).

“When faced with a purported Anders brief, this Court may not review 

the merits of any possible underlying issues without first examining counsel’s 

request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. 

Super. 2007) (en banc) (citation omitted). 

Court-appointed counsel who seek to withdraw from 

representing an appellant on direct appeal on the basis that the 

appeal is frivolous 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 wholly frivolous; (2) file a brief referring to 

anything that arguably might support the appeal but 

which does not resemble a “no-merit” letter or amicus 

curiae brief; and (3) furnish a copy of the brief to the 

defendant and advise the defendant of his or her right 

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effect at the time of Crespo’s original sentencing hearing was found 

unconstitutional in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). The 

Commonwealth agreed that Crespo was serving an illegal sentence and did 

not oppose the court vacating his sentence and resentencing him. See Order, 

12/6/22 (single page).
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to retain new counsel or raise any additional points 

that he or she deems worthy of the court’s attention.

Id. (citations omitted).

Our Supreme Court further detailed the requirements counsel must 

meet to withdraw from representation:

[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.

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

Counsel complied with the dictates of Anders and its progeny. Counsel 

filed a petition to withdraw as counsel that sets forth his “thorough review of 

the record” and determined “that no non-frivolous issues exist[.]” Petition to 

Withdraw as Counsel, 1/26/24, at 3 (unpaginated). Counsel filed a brief that 

refers to anything that might support the appeal and the brief does not 

resemble a no-merit letter or amicus curiae brief. See Anders brief, at 14-

15. Finally, counsel provided to this Court a copy of the letter he sent to Crespo 

wherein he advises Crespo that he may retain new counsel or raise any 

additional points he believes may be worthy of this Court’s attention and notes 

that he enclosed a copy of his Anders brief. See Letter to Appellant (single 

page). Finally, counsel’s brief provides a summary of the procedural history 

and facts, sets forth his conclusion that the appeal is frivolous and provides
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his reasons for concluding the appeal is frivolous with citations to controlling 

case law and statutes. See Anders brief, at 7-8, 15-16.

We now turn to the issue raised by counsel in the Anders brief: an 

abuse of discretion in sentencing. See Commonwealth v. Bennett, 124 A.3d 

327, 333 (Pa. Super. 2015) (“[W]hen an appellant, either acting pro se or 

through private counsel, files a response to the Anders brief, our independent 

review is limited to those issues raised in the Anders brief. We then review 

the subsequent pro se or counseled filing as we do any advocate’s brief.”).

A challenge to the discretionary aspects of sentence must be set forth 

as a petition for allowance of appeal. See 42 Pa.C.S.A. § 9781(b) (“The 

defendant ... may file a petition for allowance of appeal of the discretionary 

aspects of a sentence[.]”). 

To invoke this Court’s jurisdiction to review a challenge to the 

discretionary aspects of a sentence, an appellant must satisfy a 

four-part test:

(1) the appellant preserved the issue either by raising 

it at the time of sentencing or in a post-sentence 

motion; (2) the appellant filed a timely notice of 

appeal; (3) the appellant set forth a concise statement 

of reasons relied upon for the allowance of his appeal 

pursuant to Pa.R.A.P. 2119(f); and (4) the appellant 

raises a substantial question for our review.

Commonwealth v. Rivera, 312 A.3d 366, 376-77 (Pa. Super. 2024) 

(internal brackets and citation omitted).

Crespo filed a timely post-sentence motion and notice of appeal. Counsel 

included in his Anders brief a Rule 2119(f) statement. See Anders brief, at 
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11. However, counsel asserts that the claim does not raise a substantial 

question and therefore the appeal is frivolous. See id. at 16. Counsel notes 

that Crespo believes his claim has merit because two counts were run 

consecutive, and his sentence was therefore excessive. See id. at 11.

A substantial question is presented when the appellant shows “that the 

sentence imposed was inappropriate and contrary to the fundamental norms 

underlying the sentencing code.” Commonwealth v. Gonzalez-Dejusus, 

994 A.2d 595, 597 (Pa. Super. 2010) (citation omitted).

The general rule in Pennsylvania is that in imposing a sentence, 

the court has discretion whether to make it concurrent with or 

consecutive to other sentences then being imposed or other 

sentences previously imposed. That has led to the standard that 

in most cases, the court’s exercise of discretion in imposing 

consecutive as opposed to concurrent sentences is not viewed as 

raising a substantial question that would allow the granting of 

allowance of appeal. However, each case is to be looked at 

individually and 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.

Commonwealth v. Morrobel, 311 A.3d 1153, 1157 (Pa. Super. 2024) 

(quotation marks and citations omitted).

Here, the aggregate sentence is 9 to 20 years’ incarceration. The 

criminal conduct at issue is numerous counts of sexual assault of a 14-yearold child victim. Only two counts were run consecutive to each other, and the 

remainder were run concurrently. Given the criminal conduct at issue, the age 

of the victim, and Crespo’s conduct following the notice of investigation by the 
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police, on its face this is not an excessive sentence. We agree with counsel 

that this does not raise a substantial question and is frivolous.

Furthermore, our independent review reveals that there would be no 

other basis to raise a substantial question that the sentencing norms were 

ignored at the time of resentencing. Crespo received half of his original 

sentence (9 to 20 years’ incarceration versus the original 20 to 40 years’ 

incarceration), all sentences were within the standard range of the guidelines, 

and all but two counts were run concurrent.4

Even if a substantial question were raised, Crespo would not be entitled 

to relief. “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. Laughman, 314 A.3d 569, 

572 (Pa. Super. 2024) (citation omitted). As the sentences here were all within 

the standard guideline ranges, we may only vacate the sentence where 

“application of the guidelines would be clearly unreasonable[.]” 42 Pa.C.S.A. 

§ 9781(c)(2).

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4

In the pro se response, Crespo asserts a claim of judicial vindictiveness 

because counts 9 through 14 were increased. See Pro Se brief, at 10. 

However, where a lesser aggregate term of incarceration is imposed upon 

resentencing, there is no basis to claim judicial vindictiveness. See 

Commonwealth v. Cook, 175 A.3d 345, 350 n.2 (Pa. Super. 2017) 

(“Because [a]ppellant received a lesser aggregate term of incarceration upon 

resentencing, our independent review does not reveal any suggestion of 

judicial vindictiveness regarding his new sentence.”) (citation omitted). 
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The court had the benefit of a pre-sentence investigation, therefore, “we 

presume that the court was aware of the relevant information regarding the 

defendant’s character and weighed those considerations along with any 

mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. 

Super. 2014) (citation omitted). The court “heard testimony regarding 

[Crespo’s] background, and his positive impact on his peers during his time in 

prison.” Trial Court Opinion, 9/18/23, at 1. The court also noted that it

considered Crespo’s “good conduct, remorse and rehabilitation” but “could not 

ignore the gravity of the offenses.” Id. at 3. Upon a thorough review of the 

sentencing hearing and court’s opinion, we do not find the sentence clearly 

unreasonable. Accordingly, Crespo’s claim lacks all forms of merit.

However, that does not end our inquiry, as Crespo filed a responsive 

brief in which he appears to challenge the discretionary aspects of sentence. 

However, Crespo does not include a Rule 2119(f) statement in his brief. As 

such, Crespo has not raised a substantial question in his pro se brief either.

Turning to Crespo’s pro se claims, we note that Crespo’s brief is not a 

model of clarity. It appears Crespo is also raising claims of ineffective 

assistance of counsel. See Pro Se brief, at 1, 2, 9 (noting the three prongs of 

the “Strickland/Pierce”

5

test and claiming he was prejudiced by counsel’s 

act or omission). Claims of ineffective assistance of counsel are only 

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5 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v. 

Pierce, 527 A.2d 973 (Pa. 1987).
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cognizable in a Post-Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. 

§§ 9541-9546; Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).

The Holmes Court noted there are two exceptions to the general rule that 

such claims are only cognizable in a PCRA petition: (1) where the claim of 

ineffective assistance of counsel is apparent from the record and meritorious 

to the extent that immediate consideration of the claim would serve the 

interests of justice, or (2) where there is good cause shown and the defendant 

has expressly and knowingly waived his right to seek PCRA review. See id. at 

563-64. Crespo has not asserted either exception. Therefore, we will not 

address Crespo’s claims of ineffective assistance of counsel at this stage.

The only other issue we can discern from Crespo’s pro se brief is the 

aforesaid discretionary aspects of sentencing claim. Notwithstanding Crespo’s 

noncompliance with Rule 2119(f), that claim was disposed of during our 

review of counsel’s Anders brief. As there are no other issues to consider, we 

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

Petition to withdraw granted. Judgment of sentence affirmed.
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DATE: 09/13/2024