J-S64027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILLIP SHEPPARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3696 EDA 2016

Appeal from the Judgment of Sentence November 21, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0007072-2015

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 09, 2018

Appellant, Phillip Sheppard, appeals from the judgment of sentence 

entered on November 21, 2016. In this direct appeal, Appellant’s courtappointed counsel filed both an application to withdraw as counsel and an 

accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d 

1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386 U.S. 

738 (1967). We conclude that Appellant’s counsel complied with the 

procedural requirements necessary to withdraw. Furthermore, after 

independently reviewing the record, we conclude that the appeal is wholly 

frivolous. We, therefore, grant counsel’s application to withdraw and affirm 

the judgment of sentence. 

The factual background and procedural history of this case are as 

follows. On May 6, 2015, Appellant chased William Seaglass down the street 
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while wielding a machete. On November 21, 2016, Appellant pled guilty to 

simple assault1 and possessing an instrument of crime.2 The trial court

immediately sentenced him to an aggregate term of 9 to 23 months’ 

imprisonment. This timely appeal followed.3

Appellant’s counsel raises three issues in her Anders brief:

1. Was [Appellant’s] guilty plea valid? 

2. Was [Appellant] competent to enter a plea? 

3. Was [Appellant’s] sentence legal? Was the sentence imposed 

upon [Appellant] by the [trial] court manifestly excessive?

Anders Brief at 3. 

Before reviewing the merits of this appeal, we must first determine 

whether counsel has fulfilled the necessary procedural requirements for 

withdrawing as counsel. See Commonwealth v. Blauser, 166 A.3d 428, 

431 (Pa. Super. 2017) (citation omitted). To withdraw under Anders, courtappointed counsel 

must file a petition averring that, after a conscientious 

examination of the record, counsel finds the appeal to be wholly 

frivolous. Counsel must also file an Anders brief setting forth 

issues that might arguably support the appeal along with any 

other issues necessary for the effective appellate presentation 

thereof. Anders counsel must also provide a copy of the Anders

petition and brief to the appellant, advising the appellant of the 

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1 18 Pa.C.S.A. § 2701(a)(3).

2 18 Pa.C.S.A. § 907.

3 Appellant and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925. 
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right to retain new counsel, proceed pro se, or raise any additional 

points worthy of this Court’s attention.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (cleaned up).

If counsel meets all of the above 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.” Commonwealth v. Santiago, 978 A.2d 349, 355 

n.5 (Pa. 2009), quoting McClendon, 434 A.2d at 1187. It is only when both 

the procedural and substantive requirements are satisfied that counsel will be 

permitted to withdraw. In the case at bar, counsel has met all of the above 

procedural obligations.4 We now turn to whether this appeal is wholly 

frivolous.

The first issue raised in counsel’s Anders brief is whether Appellant 

entered a knowing, intelligent, and voluntary plea. The trial court conducted 

a full colloquy with Appellant at the guilty plea hearing. Appellant stated, 

under oath, that he was pleading guilty of his own free will. N.T., 11/21/16, 

at 7. He further stated that no one had threatened or coerced him into 

pleading guilty. Id. Appellant stated that he was not promised anything for 

his guilty plea. Id. at 6-7. He stated that he had reviewed the case with his 

attorney and that he was satisfied with his attorney’s representation. Id. at 

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4 Although we gave Appellant additional time, he did not file a response to 

counsel’s Anders brief.
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12-13. Appellant stated that he reviewed the written guilty plea colloquy with 

his attorney and understood its contents, including the rights he was giving 

up by pleading guilty. Id. at 11-12. He stated he was not under the influence 

of drugs or alcohol. Id. at 5. He stated that he did not currently suffer from 

any mental illness. Id. The trial court apprised him of the maximum penalty 

he could face. Id. at 10-11. Appellant thereafter pled guilty to simple assault 

and possessing an instrument of crime. Thus, Appellant knowingly, 

voluntarily, and intelligently pled guilty. Therefore, the first issue raised in 

counsel’s Anders brief is frivolous. 

The second issue raised in counsel’s Anders brief is whether Appellant 

was competent to plead guilty. Our Supreme Court has explained that “a 

defendant must be competent to be tried, convicted, or sentenced. A 

defendant is legally incompetent if he is substantially unable to understand 

the nature or object of the proceedings against him or to participate and assist 

in his defense.” Commonwealth v. Bomar, 826 A.2d 831, 860 (Pa. 2003)

(cleaned up). In this case, the record reflects that Appellant was able to 

understand the nature and object of the proceedings against him and to assist 

with his defense. Although Appellant suffered from post-traumatic stress 

disorder when he was in the armed forces over 20 years ago, he does not 

currently suffer from any mental abnormalities. Moreover, he was able to 

consult with his attorney prior to the combined plea and sentencing hearing. 

He also consulted with counsel during that hearing. There is no evidence 
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indicating that Appellant failed to understand the nature of the proceedings 

and its object. There is similarly no evidence that Appellant was unable to 

assist with his own defense. Accordingly, the second issue in counsel’s 

Anders brief is frivolous. 

The final issues presented in counsel’s Anders brief are whether the 

sentence imposed was illegal and/or manifestly excessive. We review an 

illegal sentencing claim de novo and our scope of review is plenary. 

Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa. Super. 2017), 

appeal denied, 186 A.3d 941 (Pa. 2018) (citation omitted). Possessing an 

instrument of crime is a first-degree misdemeanor for which the maximum 

penalty is five years’ imprisonment. 18 Pa.C.S.A. §§ 907, 1104(1). Simple 

assault is a second-degree misdemeanor for which the maximum penalty is 

two years’ imprisonment. 18 Pa.C.S.A. §§ 2701, 1104(2). As Appellant 

received an aggregate prison term less than the maximum sentences for both 

offenses to which he pled guilty, the illegal sentencing claim is frivolous. 

The second portion of Appellant’s final issue challenges the discretionary 

aspects of his sentence. Pursuant to statute, Appellant does not have an 

automatic right to appeal the discretionary aspects of his sentence. See 42 

Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for 

permission to appeal the discretionary aspects of his sentence. Id. 

In order to reach the merits of a discretionary aspects claim, 

we must engage in a four part analysis to determine: (1) whether 

the appeal is timely; (2) whether the appellant preserved his or 
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her issue; (3) whether the appellant’s brief includes a 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.

Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned 

up). Appellant filed a timely notice of appeal; however, he did not preserve a 

challenge to the discretionary aspects of his sentence at the sentencing 

hearing or via a post-sentence motion. Hence, the discretionary aspects 

challenge is frivolous. 

In sum, we conclude that the issues raised in counsel’s Anders brief are 

wholly frivolous. Furthermore, after an independent review of the entire 

record, we conclude that no other issue of arguable merit exists. Therefore, 

we grant counsel’s request to withdraw. Having determined that the issues 

raised on appeal are wholly frivolous, we affirm the judgment of sentence. 

Application to withdraw as counsel granted. Judgment of sentence 

affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/18
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