J-S94020-16

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

DEVIN MCNEAR

Appellant No. 1039 MDA 2016

Appeal from the Judgment of Sentence May 17, 2016

in the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0000018-2016

BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.: FILED APRIL 21, 2017

Appellant, Devin McNear, appeals from the judgment of sentence, 

imposed May 17, 2016, following a guilty plea resulting in his conviction for 

theft by unlawful taking. Appellant’s counsel, Donna M. De Vita, Esq., seeks 

to withdraw her representation of Appellant pursuant to Anders v. 

California, 87 S. Ct. 1936 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.

We adopt the following statement of facts, garnered from the trial 

court’s opinion, which in turn is supported by the record. 

The victim[, Tara Flannery,] stated that she allowed [Appellant] 

to stay overnight in her home on October 18, 2015. The next 

morning, she noticed that a jar containing change was empty, 

but she wasn't concerned. However, on October 20, 2015, the 

victim noticed that a gun case containing two (2) rifles, a Mauser 

rifle stamped 1938 and an Enfield Savage rifle, was missing from 

the spare bedroom. Attempts to reach the [Appellant] were 

unanswered. On October 22, 2015, the victim notified police 
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that [Appellant] was in the hospital as a result of a car accident. 

[Sergeant] Cotillo contacted the Scranton Police Depart [sic] who 

responded to the scene of the accident and discovered that the 

rifles were in the vehicle at the time of the accident. The owner 

of the car did not know how the rifles got in her car and told 

police that her daughter was driving. The daughter stated 

[Appellant] brought the change, clothes, and the gun case into 

her vehicle ... 

Trial Ct. Op., 8/22/16, at 1-2 (internal citations omitted).

Appellant was charged with two counts of theft by unlawful taking and 

two counts of receiving stolen property.1 In February 2016, Appellant 

entered a guilty plea to one count of theft by unlawful taking; the remaining 

charges were nolle prossed. Appellant completed a written and oral guilty 

plea colloquy.

In May 2016, the trial court sentenced Appellant to one to two years of 

incarceration followed by three years of probation to be served consecutively 

to a prior conviction by the trial court.2 At sentencing, the trial court 

specifically noted that Appellant was ineligible to participate in a state or 

county intermediate punishment program as he had prior sexual assault 

adjudications. Notes of Testimony (N.T.), 5/17/2016, at 3-5; see 42 

Pa.C.S. § 9721(a.1) and 42 Pa.C.S. § 9802. Appellant timely filed a motion 

for reconsideration of sentence solely on the ground that a sentence served 

____________________________________________

1 18 Pa.C.S. § 3921(a), and 3925(a), respectively.

2

In December 2015, Appellant was sentenced to six to twenty-four months 

of incarceration for one count of false report to law enforcement- falsely 

incriminating another, under docket number CP-35-CR-0001587-2015. Trial 

Ct. Op. at 2 n.1; see 18 Pa.C.S. § 4906(a).
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in intermediate punishment would be more beneficial to him as an individual 

who habitually abused drugs. Petition for Reconsideration of Sentence, 

5/18/2016. This motion was denied by the trial court. 

In June 2016, Appellant timely filed a notice of appeal and a courtordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive 

opinion. 

In October 2016, appellate counsel filed in this Court an Anders brief 

and application to withdraw as counsel. The brief sets forth the following 

issue Appellant seeks to raise on appeal:

1. Whether the sentences imposed were harsh and unreasonable 

and a manifest abuse of discretion?

Appellant’s Brief at 4.

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

the merits of any possible underlying issues without first examining 

counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d 

287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on 

direct appeal under Anders, counsel must file a brief that meets the 

requirements established by the Pennsylvania Supreme Court in Santiago, 

namely:

(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;
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(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 also must provide a copy of the Anders brief to his 

client. Attending the brief must be a letter that advises the 

client of his 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, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014). 

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “conduct an independent 

review of the record to discern if there are any additional, non-frivolous 

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

In the instant matter, Attorney De Vita’s Anders brief complies with 

the above-stated requirements. Namely, she includes a summary of the 

relevant factual and procedural history, she refers to the portions of the 

record that could arguably support Appellant’s claims, and she sets forth her 

conclusion that Appellant’s appeal is frivolous. She explains her reasoning 

and supports her rationale with citations to the record as well as pertinent 

legal authority. Attorney De Vita avers she has supplied Appellant with a 
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copy of her Anders brief and a letter explaining the rights enumerated in 

Nischan.

3

 Accordingly, counsel has complied with the technical 

requirements for withdrawal. Thus, we may independently review the record 

to determine if the issue Appellant raises is frivolous and to ascertain if there 

are other, non-frivolous issues he may pursue on appeal.

Appellant challenges the discretionary aspects of his sentence. A 

challenge to the discretionary aspects of a sentence must be considered a 

petition for permission to appeal. See Commonwealth v. Coulverson, 34 

A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P. 2119(f). This Court 

conducts a four-part analysis to determine: (1) whether Appellant has timely 

filed a notice of appeal; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence; (3) whether 

Appellant’s brief has a fatal defect; 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. Leatherby, 

116 A.3d 73, 83 (Pa. Super. 2015) (citation omitted).

In the instant case, Appellant has timely filed a notice of appeal. 

However, Appellant did not preserve his challenge to the discretionary 

aspects of his sentence at sentencing or in his motion to reconsider. This 

constitutes a fatal defect. Commonwealth v. Cartrette, 83 A.3d 1030, 

____________________________________________

3 Appellant has not filed a response to counsel’s Anders brief.
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1043 (Pa. Super. 2013) (en banc) (finding waiver of a challenge to 

discretionary aspects of a sentence, in the context of an Anders brief, 

where the appellant had not properly preserved the claim). Accordingly, 

Appellant’s claim is waived on appeal. Id.

Additionally, Appellant claims that the trial court’s sentence was harsh, 

unreasonable, and a manifest abuse of discretion. Appellant’s Brief at 7-10. 

Essentially, this is a bald claim of excessiveness, which does not establish a 

substantial question. Commonwealth v. Malovich, 903 A.2d 1247, 1252 

(Pa. Super. 2006) (citing Commonwealth v. Mouzon, 812 A.2d 626, 627 

(Pa. 2002) (“Appellant must support his assertions by articulating the way in 

which the court's actions violated the sentencing code”). Accordingly, on 

this ground, too, Appellant’s claim does not warrant review. Id.

Nevertheless, we briefly note the following. In fashioning an 

appropriate sentence, “the court shall follow the general principle that 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.” 42 Pa.C.S. § 9721(b).

Here, the court sentenced Appellant to one to two years of 

incarceration followed by three years of probation. N.T. 5/17/2016, at 5. 

The court (1) expressly prohibited Appellant from using drugs or consuming 

alcohol, (2) ordered an alcohol assessment upon Appellant’s release, and (3) 
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ordered a mental health evaluation. Viewed in tandem with the facts

presented to the court, Appellant’s individualized sentence established that 

the court considered the factors required under 42 Pa.C.S. § 9721(b). At 

the sentencing hearing, the court was apprised of Appellant’s addiction to 

drugs, including heroin. N.T. 5/17/2016, at 3-5. The court was also aware 

that Appellant had mental health issues and was a victim of sexual abuse. 

Id. The court previously adjudicated a matter concerning Appellant earlier 

that year, and considered Appellant’s presentence report.4 Id. At the time 

of sentencing, Appellant’s counsel also specifically requested that Appellant 

be placed in an intermediate punishment facility and the court lamented that 

Appellant would be ineligible for these structured programs due to his sexual 

assault adjudication.5 Id. The court then sentenced Appellant within the 

sentencing guidelines’ standard range. See 204 Pa.Code § 303.16. 

Accordingly, we discern no abuse of discretion. See, e.g., Commonwealth 

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4

“[W]here the sentencing judge had the benefit of a presentence 

investigation report, it will be presumed that he or she was aware of the 

relevant information regarding the defendant's character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013).

5

In her brief, counsel also references Appellant’ potential to be placed in 

intermediate punishment, an issue properly preserved for review in 

Appellant’s motion to reconsider sentence. Appellant’s Brief at 5-6. This 

issue is meritless as the record reflects that the court clearly considered the 

possibility of placing Appellant in one of these programs but concluded that 

Appellant was not an “eligible offender” pursuant to 42 Pa.C.S. § 9802. See 

also 42 Pa.C.S. § 9721(a.1).
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v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (“[W]here a sentence is 

within the standard range of the guidelines, Pennsylvania law views the 

sentence as appropriate under the Sentencing Code.”).

We agree with Attorney De Vita that Appellant’s claim is frivolous. We 

have independently reviewed the record, and find no other issues of 

arguable merit that Appellant could pursue on appeal. Accordingly, we 

affirm Appellant’s judgment of sentence and grant counsel’s petition to 

withdraw.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2017