J-S08005-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOJAN CASANOVA-CRUZ, :

:

Appellant : No. 656 EDA 2014

Appeal from the Judgment of Sentence January 22, 2013,

Court of Common Pleas, Lehigh County,

Criminal Division at No. CP-39-CR-0002741-2012

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 27, 2015

Jojan Casanova-Cruz (“Casanova-Cruz”) appeals from the judgment of 

sentence imposed following his conviction, by virtue of guilty plea, of 

involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123. His courtappointed counsel (“Counsel”) has filed a motion seeking permission to 

withdraw and a brief in support thereof pursuant to Anders v. California, 

386 U.S. (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009). Following our review, we affirm the judgment of sentence and grant 

Counsel’s petition to withdraw. 

Counsel seeking to withdraw pursuant to Anders must fulfill certain 

requirements. These requirements and the significant protection they 

provide to an Anders appellant arise because a criminal defendant has a 

constitutional right to a direct appeal and to counsel on that appeal. 
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Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). We 

have summarized these requirements as follows: 

Direct appeal counsel seeking to withdraw under 

Anders must file a petition averring that, after a 

conscientious examination of the record, counsel 

finds the appeal to be wholly frivolous. Counsel must 

also file an Anders brief setting forth issues that 

might arguably support the appeal along with any 

other issues necessary for the effective appellate 

presentation thereof. 

Anders counsel must also provide a copy of the 

Anders petition and brief to the appellant, advising 

the appellant of the right to retain new counsel, 

proceed pro se or raise any additional points worthy 

of this Court's attention. 

Id. (citations omitted). 

Moreover, there are requirements as to precisely what an Anders

brief must contain: 

[T]he Anders brief that accompanies court-appointed 

counsel’s petition to withdraw ... 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. If counsel has met these obligations, “it then 

becomes the responsibility of the reviewing court to make a full examination 

of the proceedings and make an independent judgment to decide whether 
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the appeal is in fact wholly frivolous.” Id. at 354 n.5; see also 

Commonwealth v. Harden 103 A.3d 107, 111 (Pa. Super. 2014) (“We now 

must conduct an independent review of the record to determine whether the 

issues identified by Harden in this appeal are, as counsel claims, wholly 

frivolous, or if there are any other meritorious issues present in this case.”). 

We conclude that Counsel has complied with these requirements. He 

has filed an application with this Court stating that after reviewing the 

record, he finds this appeal to be frivolous and without merit. In 

conformance with Santiago, the brief filed by Counsel includes a summary 

of the procedural history and sets forth one issue that could arguably support 

an appeal. Counsel also discusses why it would be frivolous to raise this 

issue on appeal and states his conclusions to that effect. Counsel states that 

he can find no non-frivolous issues that could be raised on appeal. Finally, 

Counsel has appended to his petition the letter that he sent to CasanovaCruz, which enclosed his application to withdraw and Anders brief, and 

advised Casanova-Cruz that he may proceed pro se or with private counsel. 

Accordingly, we undertake our independent review to determine whether this 

appeal is wholly frivolous. 

The trial court summarized the facts underlying Casanova-Cruz’s 

conviction as follows: 

On April 17, 2012, Allentown Police Department 

detectives received a report that a twenty-one yearold male, [Casanova Cruz], was engaging in sexual 
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intercourse with a fifteen-year-old female, G.P. The 

same day, G.P.’s mother took her to Sacred Heart 

Hospital in Allentown to be examined upon learning 

that G.P. was having sexual contact with [CasanovaCruz]. A sexual assault kit was utilized and G.P.'s 

underwear was obtained from the hospital.

Theresa Rentko, a child interview specialist, 

interviewed G.P. During the interview, G.P. admitted 

that she and [Casanova-Cruz] had a “relationship” 

throughout the course of which they engaged in anal 

intercourse approximately ten times between 

February 7, 2012 and April 16, 2012. She indicated 

that after the anal intercourse, she had “white stuff” 

in her underwear, and noted that on two occasions, 

she experienced anal bleeding. She also indicated 

that [Casanova-Cruz] digitally penetrated her vagina 

and had her perform oral sex on him, after which he 

ejaculated in her mouth. G.P. reported that these 

incidents occurred at her residence. She portrayed 

the contact as consensual. [Casanova-Cruz] is G.P.'s 

step-cousin. When G.P. explained the existence of 

the relationship to her mother, her mother did not 

want them together and reported [Casanova-Cruz’s] 

activities to the police.

[Casanova-Cruz] was interviewed and admitted to 

having sexual relations with G.P. He claimed she was 

still a virgin because he only penetrated her anally. 

He later asserted that he thought she was seventeen 

at first, and learned during their second sexual 

encounter that she was only fifteen. He learned that 

G.P. liked him and the two of them had a 

relationship.

On May 2, 2012, [Casanova-Cruz] was charged with 

[i]nvoluntary [d]eviate [s]exual [i]ntercourse with a 

[p]erson [l]ess than [sixteen] [y]ears of [a]ge, 

graded as a [f]elony of the [f]irst [d]egree[;] 

[s]tatutory [s]exual [a]ssault, graded as a [f]elony 

of the [s]econd [d]egree[;] [a]ggravated [i]ndecent 

[a]ssault, graded as a [f]elony of the [s]econd 

[d]egree[;] [i]ndecent [a]ssault on a [p]erson less 
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than [sixteen] [y]ears of [a]ge, graded as a 

[m]isdemeanor of the [s]econd [d]egree, and 

[c]orruption of [m]inors, graded as a [f]elony of the 

[t]hird [d]egree. The charges were bound over to the 

Court of Common Pleas on June 19, 2012. 

[Casanova-Cruz] was represented by Attorney 

Gregory R. Noonan, privately retained counsel for all 

relevant proceedings.

On October 19, 2012, [Casanova-Cruz] entered a 

negotiated guilty plea to [c]ount [o]ne, [i]nvoluntary 

[d]eviate [s]exual [i]ntercourse. On January 22, 

2013, following a sentencing hearing, the Court 

sentenced [him] to a period of six-and-a-half (61⁄2) 

to fifteen (15) years [of incarceration] in a State 

Correctional Institute, an aggravated range 

sentence. [Casanova-Cruz] did not file any postsentence motions or an appeal.

Trial Court Opinion, 3/20/14, at 1-3 (footnotes omitted). 

Casanova-Cruz filed a pro se PCRA petition and counsel was appointed. 

By virtue of an agreement with the Commonwealth, Casanova-Cruz’s postsentence and direct appeal rights were reinstated. Casanova-Cruz filed a 

post-sentence motion challenging his sentence as excessive and arguing that 

the trial court failed to state sufficient reasons for the sentence on the record 

at the time of sentencing. Corrected Motion to Modify Sentence, 2/4/14, at 

3. The trial court denied Casanova-Cruz’s motion, and this timely appeal 

follows. 

Counsel presents only one issue of potential merit: Whether the 

sentence imposed was manifestly excessive and unreasonable. Anders

Brief at 7. This claim is addressed to the discretionary aspects of Casanova-
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Cruz’s sentence. The discretionary aspects of a sentence are not appealable 

as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 

2000). Before we may review the merits of a challenge to the discretionary 

aspects of a sentence, we must 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, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Evans, 901 

A.2d 528, 533 (Pa. Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 

(2006).

The record reveals that Casanova-Cruz’s notice of appeal was timely 

filed and that he raised this claim in a post-sentence motion, and so the first 

two requirements as set forth above have been satisfied. We further 

conclude that Casanova-Cruz’s brief does not suffer from a fatal defect, as 

Counsel has included the requisite statement pursuant to Pa.R.A.P. 2119(f) 

in the brief he has filed on appeal. The fourth factor of the Evans test as 

set forth above requires that we consider whether the issue presented by 

Counsel raises a substantial question requiring us to review the discretionary 

aspects of the sentence. “The determination of what constitutes a 

substantial question must be evaluated on a case-by-case basis.” 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). A 
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substantial question exists only when an appellant advances a colorable 

argument that the sentence is either inconsistent with a specific provision of 

the Sentencing Code or contrary to the fundamental norms which underlie 

the sentencing process. Id. Presently, Counsel alleges that CasanovaCruz’s sentence is inappropriate because the trial court imposed his sentence 

without giving “meaningful consideration to any of the relevant factors as is 

[sic] set forth in [§ 9721(b) of] the Sentencing Code or set[ting] forth 

reasons to justify the length of the minimum sentence.” Anders Brief at 10. 

These claims raise substantial questions so as to invoke our review. See 

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012); 

Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003). 

Section 9721(b) of the Sentencing Code provides, in relevant part, as 

follows: 

In selecting from the alternatives set forth in 

subsection (a), 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. The court shall also consider any 

guidelines for sentencing and resentencing adopted 

by the Pennsylvania Commission on Sentencing and 

taking effect under section 2155 (relating to 

publication of guidelines for sentencing, resentencing 

and parole and recommitment ranges following 

revocation). In every case in which the court 

imposes a sentence for a felony or misdemeanor, ... 

the court shall make as a part of the record, and 

disclose in open court at the time of sentencing, a 
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statement of the reason or reasons for the sentence 

imposed.

42 Pa.C.S.A. § 9721(b) (footnote omitted). The transcript reveals that the 

mother of the victim provided a victim impact statement which indicated 

that because of Casanova-Cruz’s actions, the victim and her family have 

been in therapy; the victim’s father abandoned the victim and her family; 

and the family moved because “of the constant reminder because everything 

happened in our home.” N.T., 1/22/13, at 6-7. The trial court considered 

the sentencing guideline ranges, as agreed upon by both parties, as well as 

the pre-sentence investigation report and the fact that the SOAB Board 

determined that Casanova-Cruz is not a sexually violent predator. Id. at 9, 

34. The record also reveals the following:

[Trial court]: Mr. Casanova-Cruz, your casualness 

with how you address the way you victimized the 

young girl [as expressed in the pre-sentence 

investigation report], who is a family member, is so 

disturbing that it is without a doubt a case where you

do not deserve a mitigated[-]range sentence. For 

you to justify your anal rape of a [fifteen] year old 

girl on the grounds that she was still a virgin 

because of a lack of vaginal penetration is 

astounding and shows a lack of your comprehension 

of how wrong your behavior was. 

[Casanova-Cruz]: May I say something?

[Trial court]: All right. 

[Casanova-Cruz]: Everything that happened there –

every time I arrived in the evening – she was not an 

innocent girl. She enticed me all the time. Every 

time that she arrived home, she was wearing [] long 
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pants, and then she would go up to her bedroom and 

change that – wearing a skirt with no pants 

underneath, and she was always getting close to me, 

like, all the time wanting to be with me. And I told 

her that the mother wasn’t going to take this lightly 

because she was a minor, and that I was a cousin of 

her husband, and I appreciate the help she gave me 

allowing me to stay in her house, but on my part, if 

she wouldn’t have provoked me, nothing would have 

happened. That’s all. 

[Trial court]: I think you just confirmed my earlier 

statement. You are a grown man; and to describe 

yourself as being incapable of sexually violating a 

[fifteen][-]year[-]old girl – not once, but as many as 

ten times – leads me to conclude that nothing but an 

aggravated[-]range sentence can convey to you the 

seriousness of what you did. I was going to grant 

you some deference that you spared the victim from 

having to testify at trial, but had you gone to trial, 

you’d probably be going to jail for most of your 

natural life. 

Id. at 10-11. 

In this statement, we can discern that the trial court imposed an 

aggravated range sentence precisely because of the gravity of the offense as 

it relates to the victim, as well as the need to protect the public and what 

the trial court perceived as Casanova-Cruz’s incapacity for rehabilitation, in 

that Casanova-Cruz attempted to blame the victim for his actions. The trial 

court considered the factors it was required to pursuant to § 9721(b), and it 

also expressly explained why it imposed a minimum sentence in the 

aggravated range of the sentencing guidelines. Accordingly, we agree with 

Counsel that these challenges are without merit. 
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Finally, our independent review of the record does not reveal any issue 

that would arguably support an appeal. Accordingly, we grant Counsel’s 

petition and affirm Casanova-Cruz’s judgment of sentence. 

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2015