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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DYSHAN T. AURSBY, : No. 40 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, November 21, 2013,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0002354-2010

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

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 03, 2015

This is an appeal from the judgment of sentence entered in the Court 

of Common Pleas of Philadelphia County following appellant’s violation of 

probation hearing. Appointed counsel, Jennifer A. Santiago, Esq., has filed a 

petition to withdraw, alleging that the appeal is wholly frivolous, 

accompanied by an Anders brief.1 We grant counsel’s withdrawal petition 

and affirm.

The record indicates appellant pled guilty to the charge of possession 

with intent to deliver on April 19, 2010, and was sentenced to 12 months of 

intermediate punishment followed by two years of probation. While on 

probation, appellant was charged and later convicted of attempted murder, 

 

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

Santiago, 978 A.2d 349 (Pa. 2009).
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aggravated assault, robbery, and conspiracy. Appellant was sentenced to an 

aggregate term of incarceration of 121⁄2 to 25 years. As a result of these 

convictions, appellant was found in direct violation of his probation. On 

November 21, 2013, at a violation of probation hearing, appellant was 

sentenced to 4 to 8 years of confinement to be served consecutive to his 

121⁄2 to 25-year sentence. Appellant failed to file a post-sentence motion. 

However, on December 20, 2013, appellant’s counsel appeared before the 

trial court seeking reconsideration of appellant’s 4 to 8-year sentence. The 

trial court denied reconsideration. (Notes of testimony, 12/20/13 at 3.)

Appellant filed an appeal to this court. The trial court ordered 

appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal. After receiving an extension of time, instead of filing a 

court-ordered Pa.R.A.P. 1925(b) statement, appellant’s counsel filed a 

statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4) on 
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June 18, 2014.2 As a consequence of Rule 1925(c)(4) statement of intent, 

the trial court declined to issue a Pa.R.A.P. 1925(a) opinion.

On September 29, 2014, appellant’s counsel filed in this court a 

motion to withdraw as counsel and an Anders brief, wherein counsel states 

there are no non-frivolous issues preserved for our review. “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. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing 

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) 

(en banc) (citation omitted). 

In order for counsel to withdraw from an appeal 

pursuant to Anders, certain requirements must be 

met, and counsel must:

(1) provide a summary of the procedural 

history and facts, with citations to the 

record;

 

2 Rule 1925(c)(4) provides:

In a criminal case, counsel may file of record and 

serve on the judge a statement of intent to file an 

[Anders] brief in lieu of filing a Statement. If, upon 

review of the [Anders] brief, the appellate court 

believes that there are arguably meritorious issues 

for review, those issues will not be waived; instead, 

the appellate court may remand for the filing of a 

Statement, a supplemental opinion pursuant to 

Rule 1925(a), or both. Upon remand, the trial court 

may, but is not required to, replace appellant’s 

counsel.

Pa.R.A.P. 1925(c)(4).
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(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., quoting Santiago, 978 A.2d at 361.

Our review of Attorney Santiago’s application to withdraw, supporting 

documentation, and Anders brief reveals that she has complied with all of 

the foregoing requirements. We note that counsel also furnished a copy of 

the brief to appellant, advised him of his right to retain new counsel, 

proceed pro se, or raise any additional points that he deems worthy of this 

court’s attention, and attached to the Anders petition a copy of the letter 

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d 

748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the 

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice 

requirements set forth in Millisock that remain binding legal precedent.”). 

As Attorney Santiago has complied with all of the requirements set forth 

above, we conclude that counsel has satisfied the procedural requirements 

of Anders.
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Once counsel has met her obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 

proceedings and make an independent judgment to decide 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.

In her Anders brief, counsel points out that there is no dispute that 

appellant was in direct violation of his sentence. (See notes of testimony, 

11/23/13 at 4.) The law is clear that once probation or parole has been 

revoked, a sentence of total confinement may be imposed if any of the 

following conditions exist: the defendant has been convicted of another 

crime; the conduct of the defendant indicates that it is likely that he will 

commit another crime if he is not imprisoned; or such a sentence is essential 

to vindicate the authority of the court. 42 Pa.C.S.A. § 9771(c); 

Commonwealth v. McAfee, 849 A.2d 270 (Pa.Super. 2004), appeal 

denied, 860 A.2d 122 (Pa. 2004). Here, a sentence of total confinement 

was appropriate since appellant had been convicted of two other crimes. 

Additionally, we note appellant was sentenced to 4 to 8 years’ incarceration. 

The maximum sentence appellant could have received was 10 years; 

consequently, appellant’s sentence was within the statutory limits.

The appeal is wholly frivolous, and our independent review of the 

entire record has not disclosed any other potentially non-frivolous issues. 
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Consequently, we grant counsel’s petition to withdraw, and we affirm the 

judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/2015