J-S55031-16

*Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

JOHN A. FELICIANO,

Appellant No. 3259 EDA 2015

Appeal from the Judgment of Sentence October 2, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0003298-2014

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.* 

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 29, 2016

Appellant appeals from the judgment of sentence entered in the Court 

of Common Pleas of Northampton County following the revocation of his 

probation. Counsel has filed a petition to withdraw from representation and 

a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 

(1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 

(2009). We affirm the judgment of sentence and grant counsel’s petition to 

withdraw. 

The relevant facts and procedural history are as follows: On December 

29, 2014, Appellant pled guilty to theft of a motor vehicle and possession of 

a controlled substance.1 The trial court sentenced Appellant to time served 

____________________________________________

1 18 Pa.C.S.A. § 3934(a) and 35 P.S. § 780-113(a)(16), respectively.
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to two months in prison, to be followed by ten months of probation, for theft 

of a motor vehicle, and ten months of probation for possession of a 

controlled substance. The sentences were to run concurrently.

On or about June 29, 2015, while he was on probation with regard to 

the instant case, Appellant was charged with several offenses in an 

unrelated matter, which was docketed in the lower court at CP-48-CR0001983-2015. On August 20, 2015, he entered a guilty plea in the 

unrelated matter to one count of robbery, 18 Pa.C.S.A. § 3701, and he was 

sentenced to fifteen months to thirty-six months in prison. 

With regard to the instant case, due to his conviction at Docket CP-48-

CR-0001983-2015, as well as other technical violations, Appellant, who was 

represented by counsel, proceeded to a Gagnon II2 hearing on October 2, 

2015. At the hearing, the trial court determined Appellant was in willful 

violation of his probation, and accordingly, the trial court revoked Appellant’s 

probation. The trial court then imposed a sentence of six months to twelve 

months in prison for theft of a motor vehicle, and six months to twelve 

months in prison for possession of a controlled substance. The sentences 

were imposed concurrently to each other, but consecutively to Appellant’s 

sentence imposed at Docket CP-48-CR-0001983-2015. 

____________________________________________

2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973).
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Appellant filed a timely motion seeking reconsideration of his sentence. 

Specifically, he baldly asserted the trial court should have directed that his 

sentence for the instant matter be made concurrent to his sentence at 

Docket CP-48-CR-0001983-2015. The trial court denied Appellant’s postsentence motion, and this timely appeal followed. The trial court directed 

Appellant to file a Pa.R.A.P. 1925(b) statement, and counsel filed a 

statement indicating his intent to file an Anders brief. As indicated supra, 

on appeal, counsel has filed a petition to withdraw, as well as a brief

pursuant to Anders. 

When faced with a purported Anders brief, this Court may not review 

the merits of the issues raised therein without first passing on the request to 

withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005). 

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, 602 Pa. at 178-79, 978 A.2d at 361. Counsel must also provide 

the appellant with a copy of the Anders brief, together with a letter that 

advises the appellant of his or her right to “(1) retain new counsel to pursue 
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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). 

Instantly, counsel provided a summary of the history of the case, 

referred to anything in the record that counsel believed arguably supports 

the appeal, set forth his conclusion that the appeal is frivolous, and stated in 

detail his reasons for so concluding. Moreover, counsel has provided this 

Court with a copy of the letter, which counsel sent to Appellant informing 

him of his right to retain new counsel, proceed pro se, or raise any points 

Appellant deems worthy of this Court’s attention.3 Accordingly, we conclude 

counsel has substantially complied with the requirements of Anders and 

Santiago. We, therefore, turn to the issue of arguable merit counsel 

presented in his Anders brief to make an independent judgment as to 

whether the appeal is, in fact, wholly frivolous. Commonwealth v. BynumHamilton, 135 A.3d 179 (Pa.Super. 2016). 

Appellant challenges the discretionary aspects of his sentence. 

Specifically, he avers the trial court should have directed that his sentence in 

____________________________________________

3 We note Appellant has filed neither a pro se brief nor a counseled brief with 

new, privately-retained counsel.
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the instant matter be made concurrent to his sentence at Docket CP-48-CR0001983-2015. 

A challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136 (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.A. § 9781(b).

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

omitted). 

Here, Appellant filed a timely notice of appeal and a timely postsentence motion in which he preserved his discretionary aspect of 

sentencing claim. Counsel did not include a separate Pa.R.A.P. 2119(f) 

statement in his Anders brief; however, this Court has held that such a 

failure does not preclude review of whether Appellant’s issue is frivolous. 

See Bynum-Hamilton, supra. As to whether Appellant has presented a 

substantial question, we note the following:

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 
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(2) contrary to the fundamental norms which underlie the 

sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation, 

quotation marks, 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 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) 

(quotation omitted). As this Court has emphasized, “the key to resolving 

the preliminary substantial question inquiry is whether the decision to 

sentence consecutively raises the aggregate sentence to, what appears upon 

its fact to be, an excessive level in light of the criminal conduct at issue in 

the case.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011) 

(quotation marks and quotation omitted). 
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In the case sub judice, Appellant does not contend that his aggregate 

sentence for the instant matter is unduly harsh, given the nature of his 

crimes and the length of imprisonment. Rather, Appellant baldly suggests 

the trial court's imposition of his current sentence to run consecutively to the 

sentence he received at Docket CP-48-CR-0001983-2015 is excessive. We 

conclude that Appellant has not presented a substantial question permitting 

our review. See Commonwealth v. Pass, 914 A.2d 442, 446 (Pa.Super. 

2006) (“The [a]ppellant's claim that the trial court erred in ordering his 

sentences imposed on August 9, 2005[,] to run consecutively, instead of 

concurrently, to a previously imposed sentence does not raise a substantial 

question.”).

For all of the foregoing reasons, and after an independent review, we 

conclude Appellant is not entitled to relief and we grant counsel's petition to 

withdraw his representation.

Judgment of Sentence Affirmed. Petition to Withdraw as Counsel 

Granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/29/2016
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