J-S56012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LAWRENCE SPADA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 101 EDA 2019

Appeal from the Judgment of Sentence Entered December 3, 2018

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0000358-2015

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 31, 2019

Lawrence Spada appeals from the judgment of sentence entered in the 

Lehigh County Court of Common Pleas on December 3, 2018. After two days 

of hearings, the trial court found that Spada violated the terms of his 

probation. Subsequently, it resentenced Spada to twelve to twenty-four 

months of imprisonment. Additionally, Spada’s court-appointed counsel seeks 

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant 

counsel permission to withdraw.

Spada’s initial incarceration stemmed from his guilty plea to one count 

of terroristic threats, see 18 Pa.C.S.A. § 2706. For this offense, Spada was 

sentenced to eighteen to thirty-six months’ incarceration to be followed by 

twenty-four months of probation. After serving his maximum term of 

incarceration, Spada was admitted to the Horsham Clinic in Montgomery 
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County, Pennsylvania, for mental health services. However, shortly after his 

admission and while still on probation, Spada assaulted another patient at the 

clinic. Faced with new criminal charges from this fracas, Spada pleaded guilty 

to the summary offense of harassment, see 18 Pa.C.S.A. § 2709, in exchange 

for a “time served” sentence.

After a two-day Gagnon II1 hearing, wherein Spada admitted that he 

“lost it. [He] hit [the victim] like five or six times,” N.T., 11/19/18, at 22, the 

trial court found that he had violated the terms of his probation, revoked it, 

and sentenced him to an additional term of incarceration. In support of its 

sentence, the trial court considered, among other things, the “assaultive 

behavior” of Spada’s actions, the myriad time he spent in disciplinary 

segregation while incarcerated, and the minimal amount of time he had been 

successful while on probation. See id., 12/3/18, at 47-48. The trial court 

concluded its sentence was warranted because “Spada is an extremely 

dangerous individual.” Id., at 49.

After sentencing, Spada filed a timely post-sentence motion, which the 

trial court denied. Immediately thereafter, Spada filed a timely notice of 

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1 Referencing Gagnon v. Scarpelli, 411 U.S. 778 (1973). “When a ... 

probationer is detained pending a revocation hearing, due process requires a 

determination at a pre-revocation hearing, a Gagnon I hearing, that probable 

cause exists to believe that a violation has been committed. Where a finding 

of probable cause is made, a second, more comprehensive hearing, a Gagnon 

II hearing, is required before a final revocation decision can be made.” 

Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000). At the 

hearings, Spada conceded that he pleaded guilty to harassment. See N.T., 

11/19/18, at 9.
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appeal to this Court. Moreover, both Spada and the trial court have complied 

with the dictates of Pa.R.A.P. 1925.

With the appeal now properly before us, we must first turn to counsel’s 

petition to withdraw. To withdraw pursuant to Anders, counsel must:

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a 

copy of the [Anders] brief to the [appellant]; and 3) advise 

the [appellant] that he or she has the right to retain private 

counsel or raise additional arguments that the [appellant] 

deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc) (citation omitted). In further illuminating the third requirement of 

Anders, that counsel inform the appellant of his or her rights in light of 

counsel’s withdrawal, this Court has held that counsel must “attach to their 

petition to withdraw a copy of the letter sent to their client advising him or 

her of their rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. 

Super. 2005).

An Anders brief must comply with the following requirements:

(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.
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“[I]f counsel’s petition and brief satisfy Anders, we will then undertake 

our own review of the appeal to determine if it is wholly frivolous.” 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets 

added) (citation omitted).

Counsel filed a petition to withdraw as counsel, certifying that he has 

“thoroughly reviewed the record ... and the applicable law” and “believes that 

[Spada’s] appeal is wholly frivolous.” Petition to Withdraw as Counsel, ¶¶ 7-

8. Further, counsel attached to his petition a copy of his letter to Spada, 

advising that he may retain new counsel, proceed pro se, or raise any points 

not raised by counsel in the Anders brief. See id., at ¶ 11. Counsel also filed 

a brief, which includes a summary of the history and facts of the case, 

potential issues Spada could utilize to support his appeal, and counsel’s 

assessment as to why those issues are meritless, including citations to 

relevant legal authority.

Accordingly, counsel has complied with the requirements of Anders and 

Santiago. Spada has not responded to counsel’s petition to withdraw as 

counsel. We proceed to review the issues identified in the Anders brief.

Spada raises two issues for our consideration:

1) Was sentencing Spada to total confinement upon revocation of 

his probation an error of law because: (1) Spada was not 

convicted of another crime as defined by 18 Pa.C.S.A. § 106; 

(2) the evidence was insufficient to demonstrate that Spada is 

likely to commit another crime if not imprisoned; and (3) the 

evidence was insufficient to prove that confinement is 

essential?
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2) Did the trial court err in crafting his sentence where the 

sentence was: (1) manifestly unreasonable; (2) greater than 

required to protect the public, (3) not in proportion to the 

gravity of the underlying violation; and (4) not in consideration 

of Spada’s rehabilitative needs?

See Appellant’s Brief, at 3.

While Spada’s first issue contends that his sentence following probation 

revocation was legally erroneous, it appears undisputed that revocation, itself, 

was warranted. “The Commonwealth establishes a probation violation 

meriting revocation when it shows, by a preponderance of the evidence, that 

the probationer’s conduct violated the terms and conditions of his probation, 

and that probation has proven an ineffective rehabilitation tool incapable of 

deterring probationer from future antisocial conduct.” Commonwealth v. 

Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation omitted). “Conviction 

of a new crime is a sufficient basis for a court to revoke a sentence of

probation.” Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 

2008) (citation omitted). At his first revocation hearing, Spada conceded that 

he had been convicted of a new crime. See N.T., 11/19/18, at 9. On this basis, 

the court revoked Spada’s probation. See id., 12/3/18, at 43.

However, for the court to sentence an individual to “total confinement” 

upon revocation of probation, it would need to find that: 1) the defendant was 

convicted of another crime; 2) commission of another crime by the defendant 

is likely; or 3) total imprisonment is essential “to vindicate the authority of the 

court.” 42 Pa.C.S.A. § 9771(c).
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Here, the court found not only that Spada had been convicted of another 

crime, but also that he was likely to commit another crime or crimes in the 

future. See N.T., 12/3/18, at 46-49. Spada contends that a summary offense 

does not qualify as a crime. However, summary offenses are considered 

crimes so long as they can be punished by a sentence of incarceration. See 

Commonwealth v. Matty, 619 A.2d 1383, 1385-86 (Pa. Super. 1993). 

Therefore, because of Spada’s admission to his harassment conviction, the 

court did not commit an error of law when it sentenced Spada to incarceration.

Furthermore, the court concluded that Spada was likely to commit more 

crimes if he remained at liberty. In coming to this conclusion, the court

considered: 1) the nature of Spada’s willful probation violation, occurring 

fewer than two months after his release from incarceration; 2) his extensive 

history of misconduct while incarcerated; 3) the character of his initial 

terroristic threats offense; and 4) his inability to properly address his mental 

health and substance issues. See N.T., 12/3/18, at 46-49. This reasoning is 

well supported by the record and is clearly reasonable.

Accordingly, as either rationale employed by the court is sufficient, we 

find no basis to conclude that the court somehow committed an error of law 

or abused its discretion when it sentenced Spada to incarceration in 

accordance with 42 Pa.C.S.A. § 9771(c).

Spada’s second issue challenges the discretionary aspects of his 

sentence. To dispute the discretionary aspects of his sentence, Spada was 
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required to “set forth in his brief a concise statement of the reasons relied 

upon for allowance of appeal with respect to the discretionary aspects of a 

sentence.” Pa.R.A.P. 2119(f).

The concise statement must specify where the sentence falls in 

relation to the sentencing guidelines and what particular provision 

of the code it violates. Additionally, the statement must specify 

what fundamental norm the sentence violates and the manner in 

which it violates that norm. If the statement meets these 

requirements, we can decide whether a substantial question 

exists.

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.2004) (internal 

quotations and citations omitted).

Spada’s brief does not contain a 2119(f) statement. Therefore, Spada 

has failed to raise a substantial question. Ordinarily, this would result in waiver 

of the issue. However, in light of counsel’s petition to withdraw, we address 

Spada’s discretionary sentencing arguments. See Commonwealth v. Lilley, 

978 A.2d 995, 998 (Pa. Super. 2009) (establishing that, in conjunction with a 

Anders brief, a defective 2119(f) statement is not inherently fatal), citing

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) 

(concluding that Anders “requires review of issues otherwise waived on 

appeal”).

Spada contends, among other things, that his sentence was 

unreasonable. See Appellant’s Brief, at 3. We disagree. “This Court’s scope of 

review in an appeal from a revocation sentencing includes discretionary 

sentencing challenges.” Cartrette, 88 A.3d at 1034. While imposing sentence 
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following revocation of probation, a court must disclose a statement of reasons 

for the sentence imposed. See id., at 1041. This disclosure need not be a 

lengthy discourse, but must adequately reflect the court’s consideration of the 

facts of the case and the defendant’s character. See Commonwealth v. 

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010). As always, the court must 

follow the general principle underlying sentencing in the Commonwealth: “the 

sentence imposed should call for confinement that is consistent with the 

protection of the public, the gravity of the offense as it relates to the impact 

on the life of the victim and on the community, and the rehabilitative needs 

of the defendant.” See Cartrette, 83 A.3d at 1040-41 (citation omitted).

Here, the court went into great detail explaining why it crafted the 

sentence the way that it did. See N.T., 11/19/18, at 46-49. The trial court

read Spada’s presentence report. See id., at 48. Where the sentencing court 

had the benefit of a presentence investigation report (“PSI”), we can assume 

the sentencing court “was aware of relevant information regarding the 

defendant's character and weighed those considerations along with mitigating 

statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Furthermore, the court noted that Spada “has now been convicted 36 

different times.” N.T., 11/19/18, at 48. The court also observed that the 

probation violation involved “assaultive behavior within two months of his 

release from a state correctional institution.” Id., at 47. Based upon these 

statements, we conclude the court properly considered all the necessary 
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circumstances. Accordingly, we find there has been no error of law or abuse 

of discretion in the fashioning of Spada’s sentence.

Having reviewed the issues raised in counsel’s Anders brief, we agree 

with counsel for Spada that the within appeal is wholly frivolous.2 As such, we 

affirm the judgment of sentence and grant counsel’s motion to withdraw.

Judgment of sentence affirmed. Petition for leave to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/19

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2 We additionally note that our independent review of the record did not reveal 

any additional, non-frivolous issues that were overlooked by counsel.