J-S52038-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT MALPASSE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1269 EDA 2020

Appeal from the Judgment of Sentence Entered April 30, 2020

In the Court of Common Pleas of Wayne County Criminal Division at 

No(s): CP-64-CR-0000301-2018

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT MALPASSE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1270 EDA 2020

Appeal from the Judgment of Sentence Entered April 30, 2020

In the Court of Common Pleas of Wayne County Criminal Division at 

No(s): CP-64-CR-0000383-2018

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT MALPASSE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1271 EDA 2020

Appeal from the Judgment of Sentence Entered April 30, 2020

In the Court of Common Pleas of Wayne County Criminal Division at 

No(s): CP-64-CR-0000419-2018
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BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: JANUARY 25, 2021

Appellant, Robert Malpasse, appeals1from the Judgment of Sentence 

entered on April 30, 2020, in the Wayne County Court of Common Pleas. 

Herein, he challenges the discretionary aspects of his sentence. In addition, 

Appellant's counsel has filed an Anders 2 Brief, together with a Petition to 

Withdraw as Counsel. After careful review, we affirm Appellant's Judgment of 

Sentence and grant counsel's Petition to Withdraw.

From approximately May 22, 2018, through June 3, 2018, Appellant

engaged in a course of conduct comprising two distinct conspiracies to harass 

his ex-wife and her boyfriend. Aided by one cohort, Appellant searched his 

ex-wife’s garbage, tracked her location, photographed her without her 

knowledge and texted from fake names and phone numbers. With a second 

cohort, he stalked his ex-wife and her boyfriend by taking photographs of

them without their permission or knowledge and driving past her home and 

place of work numerous times to check on her location. When Appellant’s exwife learned of Appellant’s actions, she contacted authorities.

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* Former Justice specially assigned to the Superior Court.

1 By this Court’s Order of August 26, 2020, and upon consideration of the trial 

court dockets, the notices of appeal, and the criminal docketing statements 

filed at Docket Numbers 1269 EDA 2020, 1270 EDA 2020, and 1271 EDA 

2020, the above-captioned appeals were consolidated. See Pa.R.A.P. 513.

2 Anders v. California, 386 U.S. 738 (1967).
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Based on the complaints against Appellant, authorities obtained a search 

warrant of his residence. On June 13, 2018, detectives executed the search 

warrant and recovered a 12-gauge shotgun inside the premises. Because 

Appellant had previously been convicted of burglary, his possession of the 

firearm constituted a violation of 18 Pa.C.S.A. § 6105, Persons not to Possess.

On March 5, 2020, Appellant entered a guilty plea to one count of felony 

Criminal Conspiracy-Stalking, one count of misdemeanor Criminal ConspiracyStalking, and one count of misdemeanor Persons Not to Possess.3

 On April 

30, 2020, Appellant was sentenced to an aggregate sentence of incarceration 

of not less than 32 months nor more than 120 months in a state correctional 

institution.4 Appellant filed a timely post-sentence motion challenging the 

imposition of consecutive sentences and requesting that he serve his 

sentences in Wayne County Correctional Facility. By order of May 18, 2020, 

the trial court denied Appellant’s motion. This timely appeal followed.

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3 Specifically, Appellant pleaded guilty under CP-64-CR-0000301-2018 to one 

count Criminal Conspiracy-Stalking (18 Pa.C.S. § 903) graded as a Felony 3,

under CP-64-CR-0000383-2018 to one count Criminal Conspiracy-Stalking 

(18 Pa.C.S. § 903) graded as a Misdemeanor 1, and under CP-64 CR0000419-2018 to one count possession of a firearm by a prohibited person 

(18 Pa.C.S. § 6105(a)(a)) graded as a Misdemeanor 1.

4

 The Court sentenced Appellant to not less than 18 months nor more than

60 months under CR-301-2018; under CR-383-2018 not less than 14 months 

nor more than 60 months consecutive to CR-301-2018; and under CR-419-

2018 not less than 32 months not more than 120 month concurrent to CR301 2018. The Court credited time served from June 12, 2019, to April 30, 

2020, for case 301-2018.
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The trial court ordered Appellant to comply with Pa.R.A.P. 1925, and 

counsel filed a Rule 1925(b) statement raising the sentencing issues preserved 

in Appellant’s post-sentence motion. On July 13, 2020, the trial court filed a 

Rule 1925(a) Opinion rejecting Appellant’s sentencing issues on the rationale 

espoused in its prior opinion of May 18, 2020. 

On September 22, 2020, counsel filed the Anders Brief and Petition to 

Withdraw as Counsel. Appellant filed a pro se response5 ostensibly challenging 

the voluntariness of his guilty plea by baldly asserting that counsel assured 

him he would receive concurrently-run sentences and serve his time in the 

Wayne County Correctional Facility.6

As a preliminary matter, we address counsel's Petition to Withdraw. 

“When presented with an Anders brief, this Court may not review the merits 

of the underlying issues without first passing on the request to withdraw.” 

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation 

omitted). In order for counsel to withdraw from an appeal pursuant to 

Anders, our Supreme Court has determined that counsel must meet certain 

requirements, including:

(1) provide a summary of the procedural history and facts, with 

citations to the record;

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5 Pursuant to Anders, supra, an appellant may file a pro se brief raising 

points in addition to those in counsel's Anders brief. Commonwealth v. 

Burwell, 42 A.3d 1077, 1078–1079 (Pa. Super. 2012).

6 The remainder of Appellant’s pro se response contains a narrative unrelated 

to his guilty plea and sentence.
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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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

In the instant case, counsel has complied with all of the requirements 

of Anders as articulated in Santiago. Additionally, counsel confirms that he 

sent Appellant a copy of the Anders Brief, as well as a letter explaining to 

Appellant that he has the right to proceed pro se or the right to retain new 

counsel. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 

2005) (describing notice requirements). Counsel appended a copy of the 

letter to his Petition to Withdraw.

Because counsel has satisfied the above requirements, it is this Court's 

duty to conduct an independent review of the record to discern if there are 

any additional, non-frivolous issues overlooked by counsel and render an 

independent judgment as to whether the appeal is, in fact, wholly frivolous. 

See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en 

banc) (noting that Anders requires the reviewing court to “review ‘the case’ 

as presented in the entire record with consideration first of issues raised by 

counsel.”).

We first address the issue raised by counsel in the Anders Brief:
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Is Defendant's appeal after his guilty plea and sentence within the 

applicable sentencing guidelines wholly frivolous and without 

arguable merit within the meaning of Anders v. California, 386 

U. S. 728 (1967)?

Anders Brief, at 4.

The issue presented in the Anders Brief challenges the discretionary 

aspects of Appellant's sentence. See Commonwealth v. GonzalezDejesus, 994 A.2d 595, 597-98 (Pa. Super. 2010) (explaining that a 

challenge to the imposition of consecutive sentences implicates the 

discretionary aspects of sentencing). A challenge to the discretionary aspects 

of sentencing is not automatically reviewable as a matter of right. 

Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001).

Prior to reaching the merits of a discretionary sentencing issue:

We conduct a four[-]part analysis to determine: (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, 42 Pa.C.S.[ ] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations 

omitted).

In the instant case, Appellant met the first two elements by properly 

preserving the issue in a Post-Sentence Motion to modify his sentence and 

filing a timely notice of appeal. In his post-sentence motion, Appellant 

challenged both the imposition of consecutive sentences and the order that 

Appellant serve them in a state correctional institution. The Anders brief does
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not, however, include a statement raising these issues in his brief pursuant to 

Rule 2119(f). Nevertheless:

Where counsel files an Anders brief, this Court has reviewed the 

matter even absent a separate Pa.R.A.P. 2119(f) statement. See 

Commonwealth v. Wilson, 396 Pa. Super. 296, 578 A.2d 523 

(1990); see also Commonwealth v. Lilley, 978 A.2d 995 (Pa. 

Super. 2009). Hence, we do not consider counsel's failure to 

submit a Rule 2119(f) statement as precluding review of whether

Appellant's issue is frivolous.

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015); see also 

Commonwealth v. Bynum-Hamilton, 135 A.3d 179 (Pa. Super 2016) (the 

appellant's failure to file a separate Rule 2119 statement where counsel has 

sought to withdraw does not preclude review of whether the appellant's issue 

is frivolous). Thus, we consider whether Appellant has raised a substantial 

question.

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. 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. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) 

(citations and quotation omitted).

With regard to the imposition of consecutive sentences, this Court has 

held:

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 
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581, 587 (Pa. Super. 2010)[.] Rather, the imposition of 

consecutive rather than concurrent sentences will present a 

substantial question in only “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)[(en banc)].

[An appellant] may raise a substantial question where [s]he 

receives consecutive sentences within the guideline ranges if the 

case involves circumstances where the application of the 

guidelines would be clearly unreasonable, resulting in an 

excessive sentence; however, a bald claim of excessiveness due 

to the consecutive nature of a sentence will not raise a substantial 

question.

Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015) 

(citation and quotation omitted, emphasis in original). 

In the instant case, Appellant's bald challenge to the imposition of a 

consecutive sentence does not raise a substantial question permitting our 

review. 

With respect to Appellant’s remaining challenge to the order directing 

that he serve his sentence in a state correctional facility, we agree with the 

position taken in the Anders Brief that the court had no discretion to order 

otherwise. Specifically, Section 9762(b)(1) of the Sentencing Code mandates 

that all persons sentenced to total confinement of five or more years after the 

2012 effective date of the statute shall be committed to the Pennsylvania 

Department of Corrections for confinement. 42 Pa.C.S. § 9762(b)(1). 

Appellant's total maximum sentence of 120 months (10 years) thus required 

that he be committed to a state correctional institution. Accordingly, we agree 
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with counsel and conclude that the issues raised in the Anders Brief are wholly 

frivolous.

Appellant’s pro se response, in which he states counsel indicated prior 

to entering his guilty plea that he would receive concurrent sentences, fails to

support this claim with meaningful argument or citation to authority. For that 

reason, alone, we may deny relief. See Commonwealth v. Johnson, 985 

A.2d 915 (Pa. 2009) (explaining appellant waives issue on appeal where he 

fails to present claim with citations to relevant authority or develop issue in 

meaningful fashion capable of review).

Even if we were to review Appellant’s response on the merits, we would 

find it conflicts with his written and oral guilty plea colloquies, wherein he 

confirmed he was entering his guilty plea voluntarily, intelligently, knowingly, 

and without the influence of any promises. N.T., 3/5/20, at 8-9. In addition, 

Appellant indicated he understood the court had the authority to run each 

sentence from the three docketed cases consecutively, which, if done, would 

result in an aggregate sentence of 17 to 35 years in prison. N.T. at 10. 

Finally, our independent review of the record, conducted in accordance 

with Yorgey, supra, confirms counsel's assertion that there are no issues of 

merit to be considered by this Court and this appeal is, thus, wholly frivolous. 

Thus, we grant counsel's Petition to Withdraw and affirm Appellant's Judgment 

of Sentence.

Judgment of Sentence affirmed. Petition to Withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/21