J-S10040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID ALLEN VAN HORN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2581 EDA 2022

Appeal from the Judgment of Sentence Entered September 27, 2022

In the Court of Common Pleas of Monroe County 

Criminal Division at No: CP-45-CR-0002834-2021

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JULY 28, 2023

Appellant, David Allen Van Horn, appeals from the judgment of sentence 

imposed on September 27, 2022 in the Court of Common Pleas of Monroe 

County after a jury convicted him of possessing a controlled substance and 

possessing drug paraphernalia.1 On appeal, Appellant contends the trial court 

abused its discretion by imposing an aggregate sentence of 22 to 48 months 

in a State Correctional Institution. Appellant’s counsel seeks permission to 

withdraw and has filed an Anders-Santiago2 brief in which he concludes that 

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1 35 P.S. §§ 780-113(a)(16) and780-113(a)(32), respectively.

2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). 
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all issues lack merit.3 Following review, we grant counsel’s application for 

leave to withdraw and affirm Appellant’s judgment of sentence. 

By way of background, the record reflects that on July 15, 2021, Trooper 

Matthew Lento and two other Pennsylvania State Troopers arrived at a 

residence in Polk Township, Monroe County, intending to apprehend Appellant 

for the simple assault of Betty Lou Van Horn. See Affidavit of Probable Cause, 

8/9/21, at 1. After parking his patrol car in the street, Trooper Lento observed 

Appellant standing in the driveway of the residence next to a silver Jeep with 

its front passenger door open. As a second trooper pulled into the driveway, 

Trooper Lento saw Appellant reach into his pockets and throw items into the 

Jeep. Trooper Lento approached Appellant and took him into custody. 

Appellant closed the door to the Jeep and said he wanted a cigarette. Id.

The second trooper spoke with the assault victim who gave verbal 

consent to search the Jeep. When Trooper Lento opened the Jeep door where 

Appellant was standing, he observed a plastic container containing a baggie 

of suspected Methamphetamine and a blue glass smoking device, both in the 

immediate area where Appellant threw items that were in his pocket. Id.

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3 Appellant’s counsel filed an Anders brief on January 23, 2023 as well as an 

application to withdraw as counsel. Because the filings failed to comply with 

the requirements of Anders and Santiago, on June 22, 2023, we directed 

counsel to file a proper Anders brief and additional documentation with 

evidence of service on Appellant. We now proceed to review the brief and 

application to withdraw filed on June 30, 2023 in response to our directive. 
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Appellant was arrested and charged with possessing a controlled 

substance (Methamphetamine) and possessing drug paraphernalia. At the 

conclusion of his trial, a jury convicted Appellant of both charges. Following 

preparation of a presentence investigation report, the trial court sentenced 

Appellant to 16 to 32 months in a State Correctional Institution for possession 

of a controlled substance, followed by a consecutive sentence of six to 12 

months for possession of drug paraphernalia. See Sentencing Order, 9/27/22 

at 1-2.4 Appellant did not seek reconsideration or file any post-sentence 

motions. He did, however, file a timely pro se notice of appeal, contending 

his sentence was unlawful and constituted an abuse of discretion on the part 

of the trial court, and claiming his prior record score was calculated 

incorrectly.5 

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4 The trial court initially imposed the identical sentence on August 29, 2022 

via Alternative Communication Technology (“ACT”). On September 2, 2022, 

Appellant filed a pro se petition for collateral relief pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, claiming the 

sentence imposed via ACT was illegal. In response, by order entered 

September 19, 2022, the trial court vacated Appellant’s sentence and 

subsequently conducted an in-person proceeding on September 27, 2022, 

again sentencing Appellant to consecutive terms of 16 to 32 months for

possession of a controlled substance and six to 12 months for possession of 

drug paraphernalia. 

5 To the extent Appellant might suggest his sentence was illegal, the trial court 

dispelled any suggestion of illegality in its Rule 1925(a) opinion, in which the 

court acknowledged that the sentence imposed was longer than the six to 12 

months included in the basic sentencing matrix for an ungraded misdemeanor. 

“However, that sentence was authorized by [35 P.S. § 780-113(b)]” as a 

sentence that did not exceed three years in prison for a second conviction

(Footnote Continued Next Page)
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On October 19, 2022, the trial court directed Appellant to file a Rule 

1925(b) statement of errors complained of on appeal. In response, 

Appellant’s counsel filed a notice of intent to file an Anders brief as authorized 

by Pa.R.A.P. 1925(c)(4) and served a copy of the notice on the trial court.6 

In his Anders brief,7 Appellant identifies one issue for this Court’s 

consideration:

A. Whether the trial court abused its discretion when it sentenced 

[Appellant] to a consecutive period of incarceration in a State 

Correctional Institution for a minimum of twenty-two (22) to a 

maximum of forty-eight (48) months with credit for time 

served in the County Jail? 

Anders Brief at 6.

Appellant challenges the discretionary aspects of his sentence. 

However, before we may consider the merits of Appellant’s claim, we must 

address the adequacy of counsel’s compliance with Anders and Santiago. 

Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013); see 

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

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involving the same offense. Further, with regard to the prior record score, as 

counsel explains, Appellant’s extensive record, as detailed in Exhibit E to the 

Anders Brief, supports a prior record score of 5. Anders Brief at 17 (citing 

204 Pa. [Code] § 303.4).

6 Although represented by counsel, Appellant filed a pro se document with this 

Court titled, “Concise statement of matters complained of on appeal,” and 

dated October 26, 2022. The document was forwarded to Appellant’s counsel 

pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). 

7 See n. 3.
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faced with a purported Anders brief, this Court may not review the merits of 

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

(citation omitted). 

As this Court directed in Commonwealth v. Orellana, 86 A.3d 877 

(Pa. Super. 2014):

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, 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.

Id. at 879-80 (citation and internal quotations omitted). 

Counsel’s brief substantially complies with these requirements by (1) 

providing a summary of the procedural history and facts with citations to the 
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record;

8 (2) referring to matters of record relevant to this appeal; and (3) 

explaining why the appeal is frivolous. In addition, counsel sent his brief to 

Appellant with a letter advising him of the rights listed in Orellana. 

Accordingly, all Anders’ requirements are satisfied.

We now proceed to examine the issue counsel identified in the Anders 

brief and then conduct “a full examination of all the proceedings, to decide 

whether the case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 

1190, 1196 (Pa. Super. 2018) (en banc) (quotation omitted). “If the appeal 

is frivolous, we will grant the withdrawal petition and affirm the judgment of 

sentence.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 

2007) (citation omitted). If there are non-frivolous issues, we will deny 

counsel’s petition to withdraw and direct counsel to file an advocate’s brief.

Id. (citation omitted).

By arguing that the trial court’s consecutive sentences are excessive and 

constitute an abuse of discretion, Appellant is challenging the discretionary 

aspects of his sentence. “An appellant must satisfy a four-part test to invoke 

this Court’s jurisdiction when challenging the discretionary aspects of a 

sentence.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), 

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8 Although counsel’s citations to the record refer to “R.R.,” suggesting a 

Reproduced Record, the certified record does not include a Reproduced 

Record. Rather, the pages of the “R.R.” referenced in the Anders brief 

correspond to the pages of the Trial Court Record received and docketed in 

this Court on December 14, 2022
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appeal denied, 117 A.3d 297 (Pa. 2015) (quoting Commonwealth v. 

Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)). As this Court reiterated 

in Zirkle,

[W]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely 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.

Id., 107 A.3d at 132 (quoting Buterbaugh, 91 A.3d at 1265-66) (in turn 

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

Here, although Appellant filed a timely notice of appeal, he did not 

preserve the issue at sentencing or in a motion to reconsider. As such, the 

issue is waived. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. 

Super. 2013) (en banc) (objection to a discretionary aspect of sentence is 

waived if not raised in a post-sentence motion or during sentencing 

proceedings). Further, he did not include a Rule 2119(f) statement in his brief

and, therefore, his brief has a fatal defect. However, even if he had preserved 

the issue and had included a Rule 2119(f) statement, Appellant would not be 

able to satisfy the fourth criteria because he has not presented a substantial 

question for review. As this Court explained in Zirkle, 

We have stated that the imposition of consecutive rather than 

concurrent sentences lies within the sound discretion of the 

sentencing court. Commonwealth v. Lloyd, 878 A.2d 867, 873

(Pa. Super. 2005)[.] Long standing precedent of this Court 

recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court 

discretion to impose its sentence concurrently or consecutively to 
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other sentences being imposed at the same time or to sentences 

already imposed. 

A challenge to the imposition of consecutive rather than 

concurrent sentences does not present a substantial question 

regarding the discretionary aspect of sentence. Lloyd, 878 A.2d 

at 873. 

Id., 107 A.3d at 133 (additional citations omitted). Here, the imposition of 

a six- to 12-month sentence for possession of drug paraphernalia, consecutive 

to the 16- to 32-month sentence imposed for possession of a controlled 

substance, does not result in a sentence “so manifestly excessive” as to create 

a substantial question. Appellant’s stated issue lacks merit. 

Finally, “part and parcel of Anders is our Court’s duty to review the 

record to insure no issues of arguable merit have been missed or misstated.” 

Yorgey, 188 A.3d at 1197 (quoting Commonwealth v. Vilsaint, 893 A.2d

753, 755 (Pa. Super. 2006)). As this Court observed in Yorgey,

this review does not require this Court to act as counsel or

otherwise advocate on behalf of a party. Rather, it requires us 

only to conduct a review of the record to ascertain if on its face, 

there are non-frivolous issues that counsel, intentionally or not, 

missed or misstated. 

Id. at 1197.

We agree with Appellant’s counsel that the discretionary aspect of 

sentencing issue asserted in the Anders brief is wholly frivolous. Further, 

after conducting our own review of the record, we find no arguably meritorious 

issues that counsel missed or misstated. See Yorgey, 188 A.3d at 1197. 
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Therefore, we grant counsel’s application to withdraw and affirm the 

September 27, 2022 judgment of sentence.

Application to withdraw granted. Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2023