J-S80032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JOSEPH MICHAEL BLACK

Appellant No. 700 MDA 2016

Appeal from the Judgment Entered September 18, 2015

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0000944-2015, CP-35-CR-0001216-

2014

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 22, 2016

Appellant, Joseph Michael Black, appeals from the September 18, 2015 

judgment of sentence of forty-five to ninety-six months’ incarceration 

followed by ten years of probation. Appellant challenges the discretionary 

aspects of his sentence. Additionally, Appellant’s counsel, Donna M. DeVita, 

Esq., seeks to withdraw her representation of Appellant pursuant to Anders 

v. California, 87 S. Ct. 1936 (1967) and Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to 

withdraw.

We adopt the following statement of facts, garnered from the trial 

court’s opinion, which in turn is supported by the record. See Trial Court 

Opinion (TCO), 6/29/16, at 1-6. As a result of a Lackawanna County 

investigating grand jury, Appellant, a prison guard, was charged with 

numerous crimes related to his sexual misconduct and mistreatment of 
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female inmates in the Lackawanna County Prison. Five victims testified that 

Appellant pressured or forced them into having sexual relations with him. 

As a result of the grand jury’s recommendation, Appellant was arrested and 

charged.

At criminal information CP-35-CR-001216-2014, Appellant was 

charged with two counts of unlawful restraint/involuntary servitude, one 

count of indecent exposure, four counts of official oppression, one count of 

indecent assault, two counts of involuntary deviate sexual intercourse (IDSI) 

– person substantially impaired, two counts of IDSI – threat of forcible 

compulsion, and four counts of institutional sexual assault.1

At criminal information CP-35-CR-000944-2015, Appellant was 

charged with one count of indecent exposure, two counts of official 

oppression, one count of IDSI – forcible compulsion, one count of 

institutional sexual assault, and one count of criminal attempt – rape by 

forcible compulsion.2

On September 18, 2015, Appellant entered a guilty plea. At criminal 

information 1216-2014, Appellant pleaded guilty to two counts of unlawful 

restraint, one count of indecent exposure, and two counts of official 

oppression. At criminal information 944-2015, Appellant pleaded guilty to 

one count of indecent exposure and one count of official oppression. 

____________________________________________

1 18 Pa.C.S. § 2902(a)(2), 3127(a), 5301(1), 3126(a)(1), 3123(a)(4), 

3123(a)(2), 3124.2(a), respectively.

2 18 Pa.C.S. § 901(a).
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Appellant underwent a guilty plea colloquy and moved for an immediate 

sentence, waiving his right to a presentence investigation.

The trial court sentenced Appellant to an aggregate sentence of fortyfive to ninety-six months’ incarceration followed by ten years of special 

probation. Appellant timely filed a motion for reconsideration of sentence, 

which was denied by operation of law. 

Appellant timely filed a notice of appeal pro se; the trial court 

appointed appellate counsel, who timely filed a concise statement pursuant 

to Pa.R.A.P. 1925(b). The trial court issued a responsive opinion. 

On August 8, 2016, appellate counsel filed in this Court an Anders

brief and application to withdraw as counsel. The brief sets forth the 

following two issues Appellant seeks to raise on appeal:

A. Whether the sentences imposed were harsh and unreasonable 

and a manifest abuse of discretion?

B. Whether the sentencing court erred and committed an abuse 

of discretion when it imposed sentences in or above the 

aggravated ranges where there were no aggravating 

circumstance[s] on the official oppression charges, the indecent 

assault charges, and the unlawful restraint charges?

Ander’s Brief at 4.

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). Prior to withdrawing as counsel on 

direct appeal under Anders, counsel must file a brief that meets the 
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requirements established by the Pennsylvania Supreme Court in Santiago, 

namely:

(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.

Santiago, 978 A.2d at 361. 

Counsel also must provide a copy of the Anders brief to his 

client. Attending the brief must be a letter that advises the 

client of his right to: “(1) retain new counsel to pursue the 

appeal; (2) proceed pro se on appeal; or (3) raise any points 

that the appellant deems worthy of the court[’]s attention in 

addition to the points raised by counsel in the Anders brief.” 

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 

2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014). 

After determining that counsel has satisfied these technical requirements of 

Anders and Santiago, only then may this Court “conduct an independent 

review of the record to discern if there are any additional, non-frivolous 

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

In the instant matter, Attorney De Vita’s Anders brief complies with 

the above-stated requirements. Namely, she includes a summary of the 
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relevant factual and procedural history, she refers to the portions of the 

record that could arguably support Appellant’s claims, and she sets forth her 

conclusion that Appellant’s appeal is frivolous. She explains her reasoning 

and supports her rationale with citations to the record as well as pertinent 

legal authority. Attorney De Vita avers she has supplied Appellant with a 

copy of her Anders brief and a letter explaining the rights enumerated in 

Nischan.

3

 Accordingly, counsel has complied with the technical 

requirements for withdrawal. Thus, we may independently review the record 

to determine if the issues Appellant raises are frivolous and to ascertain if 

there are other non-frivolous issues he may pursue on appeal.

Both of Appellant’s issues challenge the discretionary aspects of his 

sentence. In his first issue, Appellant argues that the trial court’s sentence 

was harsh, unreasonable, and a manifest abuse of discretion. In his second 

issue, Appellant argues that the court erred in imposing sentences above the 

aggravated ranges where there were no aggravating circumstances on the 

charges of official oppression, indecent assault, and unlawful restraint. 

A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal. See Commonwealth v. 

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P. 

2119(f). This Court conducts a four-part analysis to determine: (1) whether 

Appellant has timely filed a notice of appeal; (2) whether the issue was 

____________________________________________

3 Appellant has not filed a response to counsel’s Anders brief.
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properly preserved at sentencing or in a motion to reconsider and modify 

sentence; (3) whether Appellant’s brief has a fatal defect; and (4) whether 

there is a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). 

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation 

omitted). 

A claim that the sentencing court imposed an unreasonable sentence 

by sentencing outside the guideline ranges may raise a substantial question, 

which is reviewable on appeal. See Commonwealth v. Rodda, 723 A.2d 

212, 213-14 (Pa. Super. 1999). However, where the trial court sufficiently 

states it reasons for imposing a sentence outside of the guidelines and 

acknowledges its awareness of the guidelines on the record, an appellant 

has not raised a substantial question. See Commonwealth v. Davis, 737 

A.2d 792, 798 (Pa. Super. 1999); see also Commonwealth v. Gibson, 

716 A.2d 1275, 1277 (Pa. Super. 1998). 

Appellant’s brief contains the requisite statement of reasons relied 

upon in support of appeal as required by 42 Pa.C.S. § 9781(b) and Pa.R.A.P. 

2119(f). We acknowledge that he preserved his issue by arguing, in his 

motion for reconsideration of sentence, that his sentence was illegal, 

oppressive, and unjust. See Motion for Reconsideration of Sentence, 

9/29/15, at 1-3 (citing trial court’s departure from the sentencing 

guidelines). 
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In the instant case, however, the sentencing court demonstrated its 

awareness of the guidelines on the record. See Notes of Testimony (N. T.), 

9/18/15, at 25-27. Further, it offered reasons for sentencing outside of the 

guidelines, namely: the duration and length of time in which the crimes 

occurred; the number of victims; the need to deter similarly situated 

authority figures; the harm Appellant had done to the criminal justice 

system as a whole; and that Appellant had taken advantage of helpless 

women. These reasons are sufficient to sentence outside of the guidelines 

and in the aggravated range. Thus, we decline to find that Appellant has 

raised a substantial question.

In short, we agree with Attorney De Vita that Appellant’s two issues 

are frivolous. We have independently reviewed the record, and find no other 

issues of arguable merit that he could pursue on appeal. Accordingly, we 

affirm Appellant’s judgment of sentence and grant counsel’s petition to 

withdraw.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016