J-S08032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN MATTHEW POLEGA

Appellant No. 2244 EDA 2014

Appeal from the Judgment of Sentence June 26, 2014

In the Court of Common Pleas of Pike County

Criminal Division at No(s): CP-52-CR-0000011-2014

BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED JANUARY 26, 2015

Appellant John Matthew Polega appeals from the judgment of sentence 

entered in the Pike County Court of Common Pleas following his negotiated 

guilty plea to delivery of a controlled substance and criminal conspiracy to 

commit delivery of a controlled substance.1 After careful review, we affirm 

and grant counsel’s petition to withdraw.

The trial court sets forth the relevant facts of this appeal as follows:

Appellant was charged with eight (8) offenses, including 

[m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent 

to [m]anufacture or [d]eliver; [c]riminal attempt -

[m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent 

to [m]anufacture or [d]eliver; [c]onspiracy –

[m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent 

to [m]anufacture or [d]eliver; [m]anufacture, [d]elivery, 

____________________________________________

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(c), respectively.
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or [p]ossession [w]ith [i]ntent to [m]anufacture or 

[d]eliver; [c]riminal [u]se of a [c]ommunication [f]acility; 

[t]heft by [u]nlawful [t]aking – [m]ovable [p]roperty; 

[i]ntentional [p]ossession of a [c]ontrolled [s]ubstance by 

[p]erson [n]ot [r]egistered; and [u]se/[p]ossession of 

[d]rug [p]araphernalia.1 On June 26, 2014, Appellant 

entered a negotiated plea of guilty to Count I (1), 

[d]elivery of a [c]ontrolled [s]ubstance, and Count III (3), 

[c]riminal [c]onspiracy to [c]ommit [d]elivery of a 

[c]ontrolled [s]ubstance. All remaining [c]ounts contained 

in Criminal Information Number 11-2014 were dismissed. 

Appellant was sentenced in accordance with the agreement 

to a term of incarceration of not less than eighteen (18) 

months but not more than thirty-six (36) months to be 

served in a State Correctional Facility, was credited with 

108 days time served between December 16, 2013 and 

April 3, 2014, and was approved for RRRI minimum 

sentence of thirteen and one-half (13.5) months.

1 35 [P.]S. [§] 780-113([a])(30), 18 Pa.C.S. [§§] 

901([a]), [903(c)], 35 Pa.C.S. [§] 780-113([a])(30), 

18 Pa.C.S. [§§] 7512[(a),] 3921([a]), 35 [P.]S. [§§] 

780-113([a])(16)[, (32),] respectively.

Trial Court Opinion, filed September 19, 2014, at 1-2 (some footnotes 

omitted).

On July 1, 2014, Appellant timely filed a post sentence motion for 

modification of sentence, which the court denied the next day. On July 29, 

2014, Appellant filed a notice of appeal. On July 30, 2014, the court ordered 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and he timely complied on August 19, 2014. 

On October 29, 2014, Appellant’s counsel filed a petition for leave to 

withdraw along with an Anders brief.
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As a preliminary matter, appellate counsel seeks to withdraw her 

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 978 A.2d 

349 (Pa.2009). Prior to withdrawing as counsel on a direct appeal under 

Anders, counsel must file a brief that meets the requirements established 

by our Supreme Court in Santiago. The brief 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. 

Santiago, 978 A.2d at 361. Counsel must also provide a copy of the 

Anders brief to the appellant, together with a letter that advises the 

appellant of his or her 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, 936 A.2d 40 (Pa.2007). Substantial 

compliance with these requirements is sufficient. Commonwealth v. 

Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the 

antecedent requirements have been met, this Court must then make an 

independent evaluation of the record to determine whether the appeal is, in 
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fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 

(Pa.Super.2006).

Here, counsel filed a petition for leave to withdraw as counsel. The 

petition states counsel made a “conscientious examination of the record and 

determined that the appeal would be wholly frivolous.” Petition to Withdraw 

as Counsel, filed October 29, 2014, p. 1. The petition explains counsel 

notified Appellant of the withdrawal request, supplied him with a copy of the 

Anders brief, and sent Appellant a letter explaining his right to proceed pro 

se or with new, privately-retained counsel to raise any additional points or 

arguments that Appellant believed had merit. Id. In the Anders brief, 

counsel provides a summary of the facts and procedural history of the case 

with citations to the record, refers to evidence of record that might arguably 

support the issue raised on appeal, provides citations to relevant case law, 

and states her conclusion that the appeal is wholly frivolous and her reasons 

therefor. See Anders Brief, pp. 5-10. Accordingly, counsel has 

substantially complied with the requirements of Anders and Santiago.

As Appellant filed neither a pro se brief nor a counseled brief with new, 

privately-retained counsel, we review this appeal based on the issues raised 

in the Anders brief:

WHETHER THE TRIAL COURT ERRED IN DENYING 

[APPELLANT’S] POST-SENTENCE MOTION ALLEGING THAT 

[APPELLANT] RECEIVED A SENTENCE NOT APPROPRIATE 

UNDER THE APPLICABLE GUIDELINES, THAT HIS 

SENTENCE SHOULD HAVE TAKEN INTO CONSIDERATION 

MITIGATING FACTORS AND [APPELLANT] WAS UNDULY 
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PREJUDICED BY UNVERIFIED INFORMATION RECEIVED BY 

HIS PROBATION OFFICER AND/OR CONTAINED IN THE 

PRE-SENTENCE REPORT[?]

WHETHER THE TRIAL COURT IMPROPERLY DENIED 

[APPELLANT’S] MOTION TO MODIFY SENTENCE WITHOUT 

HOLDING A HEARING THEREON[?]

Anders Brief at 4.2 

In his first issue, Appellant challenges the discretionary aspects of his 

sentence. Appellant claims his aggregate sentence was too harsh, the trial 

court failed to consider mitigating factors, and the court considered 

unverified information about his involvement in current drug sales. In the 

Anders brief, counsel states she found nothing that arguably supports this 

challenge. We agree. 

When reviewing a challenge to the discretionary aspects of sentencing, 

we determine whether the trial court has abused its discretion. 

Commonwealth v. Seagraves, ___ A.3d ___, 2014 PA Super 252, *3 

(Nov. 6, 2014). “Challenges to the discretionary aspects of sentencing do 

not entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 

A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a 

discretionary challenge, an appellant must comply with the following 

requirements:

____________________________________________

2

In the Anders Brief, the first question listed is: “Whether there are any 

non-frivolous issues preserved on appeal.” We will address this issue as we 

discuss Appellant’s other claims.
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An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (1) whether appellant has filed a timely notice of 

appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was 

properly preserved at sentencing or in a motion to reconsider 

and modify sentence, see Pa.R.Crim.P. [720]; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) 

whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code.

Id.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 

526, 533 (Pa.Super.2011). Further:

A substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the 

fundamental norms which underlie the sentencing process.

Id. (internal citations omitted). A court’s exercise of discretion in imposing 

a sentence concurrently or consecutively does not ordinarily raise a 

substantial question. Commonwealth v. Mastromarino, 2 A.3d 581, 587 

(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011). In fact, the 

imposition of consecutive rather than concurrent sentences will only present 

a substantial question in “the most extreme circumstances, such as where 

the aggregate sentence is unduly harsh, considering the nature of the crimes 

and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d 

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).
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Presently, Appellant filed a timely notice of appeal and preserved his 

issues in a post sentence motion. Appellant’s brief, however, does not 

include a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f). Nevertheless, in light of Counsel’s 

petition to withdraw, we will proceed to address whether Appellant raises a 

substantial question. See Commonwealth v. Lilley, 978 A.2d 995, 998 

(Pa.Super.2009) (observing that Anders requires review of issues otherwise 

waived on appeal).

After Appellant pled guilty pursuant to a negotiated plea agreement, 

the trial court sentenced Appellant to 18-36 months’ incarceration.3 The 

plea agreement provided that Appelant’s sentences would be within the 

standard range of the guidelines, and that the trial court would have 

discretion to run the sentences consecutively or concurrently. Thus, 

Appellant’s sentence is not “inconsistent with a specific provision of the 

sentencing code” or “contrary to the fundamental norms which underlie the 

sentencing process.” See Prisk, supra. Further, the imposition of 

consecutive rather than concurrent sentences is not unduly harsh, 

considering the nature of the crimes and the length of imprisonment. See 

Lamonda, supra. 

____________________________________________

3 The court imposed consecutive sentences of 9-18 months’ incarceration for 

delivery of a controlled substance and 9-18 months’ incarceration for 

criminal conspiracy to commit delivery of a controlled substance, namely 

heroin, for an aggregate sentence of 18-36 months’ incarceration.
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Regarding Appellant’s claim that the court failed to consider mitigating 

factors, “this Court has held on numerous occasions that a claim of 

inadequate consideration of mitigating factors does not raise a substantial 

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 

(Pa.Super.2013) (internal citation omitted). However, “prior decisions from 

this Court involving whether a substantial question has been raised by 

claims that the sentencing court ‘failed to consider’ or ‘failed to adequately 

consider’ sentencing factors has been less than a model of clarity and 

consistency.” Seagraves, supra, at *3 (internal citations omitted). 

“Further, reliance on impermissible sentencing factors can raise a substantial 

question.” Commonwealth v. Dodge, 77 A.3d 1263, 1273 

(Pa.Super.2013), reargument denied (Nov. 21, 2013), appeal denied, 91 

A.3d 161 (Pa. 2014).

Thus, Appellant has presented a substantial question, and we shall 

address the merits of his claim. 

When the trial court has the benefit of a pre-sentence report, “we 

presume that the court was aware of relevant information regarding the 

defendant’s character and weighed those considerations along with any 

mitigating factors.” Seagraves, supra, at *3. Regarding this issue, the 

trial court reasoned:

While [Appellant] claims that this [c]out failed to consider 

mitigating factors of record in assessing the sentence, the 

[c]ourt notes that the [c]ourt took into consideration all 

matters contained in the [pre-sentence report (]PSI[)] and 
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the information presented in [c]ourt at the sentencing 

proceeding. That information was evaluated fairly and 

completely in contemplation of the sentence imposed. In 

review of the PSI, there is no reference to [Appellant] still 

being involved in drug sales or drug use. In fact, the 

report indicates [Appellant] tested negative for drugs at 

the PSI interview. Further, [Appellant] claims he was 

prejudiced by unverified information received by the 

Probation Officer or contained in the PSI report. However, 

Appellant fails to indicate [the] nature of that information 

other than a claim that the Probation Officer heard that the 

Appellant was still involved in drug sales. As previously 

indicated, such information was not included in the PSI 

report.

Trial Court Opinion, at 5. 

After considering mitigating factors and abstaining from relying upon 

impermissible information, the trial court sentenced Appellant well within the 

sentencing guidelines. Thus, the trial court did not abuse its discretion in 

imposing Appellant’s sentence.

In his second issue, Appellant argues the court should have conducted 

a hearing before denying his post sentence motion. In the Anders brief, 

counsel concludes that this issue is also frivolous because “no case law 

indicates that a trial court must hold a hearing regarding a post-sentence 

motion.” We agree. 

The Rules of Criminal Procedure provide, in relevant part:

Rule 720. Post-Sentence Procedures; Appeal

* * *

(B) Optional Post-Sentence Motion.

* * *
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(2) Trial Court Action.

* * *

(b) Hearing; Argument. The judge shall also determine 

whether a hearing or argument on the motion is required, 

and if so, shall schedule a date or dates certain for one or 

both.

Pa.R.Crim.P. 720(B)(2)(b).

The Comment to Rule 720 explains, in pertinent part:

Paragraph (B)(1)(b) permits the trial judge to entertain a 

supplemental post-sentence motion at his or her 

discretion, as long as the decision on the supplemental 

issue(s) is made within the time limits[.]

* * *

There is no requirement that oral argument be heard on 

every post-sentence motion.

Pa.R.Crim.R. 720, Comment.

In this case, the judge determined that a hearing on Appellant’s 

motion was not required. We find no abuse of discretion in this 

determination. Thus, Appellant’s claim is without merit.

We agree with counsel that Appellant’s claim is wholly frivolous. 

Moreover, our independent review of the record has revealed no other 

preserved issues of arguable merit. Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed. Counsel’s petition to withdraw 

granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/26/2015