J-S16023-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LARRY SHOWALTER,

Appellant No. 1049 WDA 2016

Appeal from the Judgment of Sentence entered June 22, 2016,

in the Court of Common Pleas of Bedford County,

Criminal Division, at No(s): CP-05-CR-0000132-2013.

BEFORE: MOULTON, RANSOM, and PLATT,* JJ.

MEMORANDUM BY RANSOM, J.: FILED MAY 24, 2017

Appellant Larry Showalter appeals from the judgment of sentence 

imposed on June 22, 2016. We remand with instructions.

The pertinent facts and procedural history, as gleaned from our review 

of the certified record are as follows. The multiple charges brought against 

Appellant stem from allegations made by his biological daughter that he 

raped her on multiple occasions when she was between the ages of 8 and 

11. On June 19, 2014, a jury convicted Appellant of two counts of rape of a 

child, two counts of involuntary deviate sexual intercourse (IDSI), two 

counts of aggravated indecent assault, two counts of incest, endangering the 
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welfare children, corruption of minors, and three counts of indecent 

exposure.1 Appellant was found not guilty of an additional fourteen charges. 

After an evidentiary hearing on September 24, 2014, the trial court 

designated Appellant a sexually violent predator and sentenced him to an 

aggregate term of 60-120 years of imprisonment. 

Appellant timely filed an appeal to this Court, in which he asserted trial 

court error in its admission of hearsay statements made by the victim, as 

well as a challenge to the discretionary aspects of his sentence. Although 

we concluded that the trial court erred in admitting the statements as an 

excited utterance, we found the error harmless because the victim had 

already made the same statements in her own testimony at trial. We then 

raised sua sponte the issue of whether Appellant’s sentence, which included 

the application of mandatory minimums, was illegal in light of the United 

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 

2151 (2013), and subsequent Pennsylvania cases applying the Alleyne 

holding, including Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 

2014). Because these cases concluded that the application of the 

mandatory minimums were unconstitutional, we vacated and remanded for 

____________________________________________

1 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(a)(7), 4302, 4304(a)(1), 

6301(a)(i), and 3127(a), respectively.
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resentencing. See Commonwealth v. Showalter, 145 A.3d 770 (Pa. 

Super. 2016) (unpublished memorandum).

Upon remand, Appellant was resentenced on June 22, 2016, to an 

aggregate term of 56-120 years. The trial court denied Appellant’s timelyfiled motion for reconsideration of sentence. This appeal follows. Both 

Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issue:

I. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION IN SENTENCING APPELLANT TO AN 

AGGREGATE TERM OF 56 TO 120 YEARS?

Appellant’s Brief at 6. 

Although not styled as an Anders2 brief, counsel for Appellant 

essentially argues Appellant’s sentencing claim is frivolous. According to 

counsel’s assessment, Appellant is unable to establish that a substantial 

question exists as to the aggregate term imposed upon resentencing:

Meeting the “substantial question” burden, in the 

undersigned counsel’s experience and research is not a huge 

burden to meet. An [a]ppellant needs only to raise a “colorable 

argument” that a substantial question exists. [Commonwealth 

v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)]. See 

Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002). 

However, there must be something in the record to indicate that 

the burden can be met at least for review.

In the instant case, a review of the record shows no 

evidence that the sentence was either inconsistent with a specific 

____________________________________________

2 Anders v. California, 386 U.S. 738 (1967).
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provision of the Sentencing Code or contrary to the fundamental 

norms which underlie the sentencing process and even a 

“colorable argument” that a “substantial questions exists” cannot 

be raised.

[Appellant] in this case was being resentenced; and had 

already experienced getting sentenced to 60 years minimum in 

jail. At his resentencing, which is the subject of the instant 

appeal, [Appellant] himself did not even complain about his first 

sentence or state why it should be less.

Appellant’s Brief at 12-13.

This is this sum total of counsel’s analysis. When court-appointed 

appellate counsel determines that an appeal is wholly frivolous, he or she 

must file a petition to withdraw accompanied by an appellate brief that 

complies with the following:

[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. Super. 2009). 

Here, counsel has done neither. In addition, we note that, in his prior 

appeal, Appellant did complain of the length of his aggregate sentence, but 

the issue was not reached by the panel due to its finding the sentence 

illegal. See Showalter, supra. Thus, we remand for preparation of a

proper advocate brief addressing Appellant’s sentencing issue as reproduced 
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above, or, if in counsel’s assessment the appeal remains frivolous, a 

Anders/Santiago compliant brief accompanied by a petition to withdraw. 

The amended brief shall be submitted within forty-five days. 

Case remanded. Jurisdiction retained.