J-A03009-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN W. SPANGENBERG 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1295 MDA 2019

Appeal from the Judgment of Sentence Entered April 23, 2019

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0001590-2010

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 14, 2021

Brian W. Spangenberg (Appellant) appeals from the judgment of 

sentence imposed following revocation of his probation and resentencing for 

robbery.

1

 Additionally, Appellant’s counsel (Counsel), seeks to withdraw from 

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

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, 

we grant Counsel’s petition to withdraw and affirm Appellant’s judgment of 

sentence.

The trial court summarized the factual and procedural history of this 

case as follows: 

On November 16, 2009, McCarthy Taxi company reported 

a robbery by a masked male, later determined to be Appellant. 

Upon arrival, the Scranton Police found the McCarthy dispatcher 

covered in blood due to blunt-force head trauma. Police learned 

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1 18 Pa.C.S.A. § 3701(a)(1).
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that the Appellant, a former McCarthy employee, smashed 

surveillance cameras and assaulted the dispatcher by repeatedly 

hitting him in the head and face with a tire iron, causing severe 

injuries and hospitalization. Later, the Appellant utilized the same 

tire iron to pry open a metal safe, stealing cash deposits. The 

injured dispatcher fear[ed] for his life and begged the Appellant 

to take the money and leave. The Appellant fled the scene. 

During the police investigation, the Appellant’s girlfriend, Amber 

Lewis, and her daughter, confessed that the Appellant committed 

the robbery and assault at McCarthy Taxi Cab Company. . . . 

Subsequently, on July 29, 2010, the Appellant entered a 

guilty plea to one count of Robbery, 18 Pa.C.S.A. § 3701(a)(1). 

After completion of a pre-sentence investigative report, this 

[c]ourt sentenced the Appellant on October 19, 2010, to four (4) 

to eight (8) years of state incarceration, followed by two (2) years 

of state supervised probation. While serving parole for the instant 

offense, and prior to commencement of the two (2) years state 

supervised probation, the Appellant re-offended on January 17, 

2018. In a sixteen (16) count criminal information the 

Commonwealth alleged that the Appellant burglarized a VFW post 

and an American Legion post between November 26, 2017 and 

November 29, 2017. 

On December 10, 2018, the Appellant entered a negotiated 

guilty plea to one (1) count of Burglary and three (3) counts of 

Criminal Trespass. The Appellant’s conviction violated the 

probationary term of his original sentence. Thereafter, on April 

23, 2019, this [c]ourt revoked the two (2) year probationary 

sentence on 10 CR 1590 and re-sentenced the Appellant to 

twenty-four (24) – forty-eight (48) months state incarceration. 

On May 1, 2019, the Appellant filed a Motion for Reconsideration 

of Sentence, alleging an improperly calculated prior record RFEL 

score, absence of a Gagnon I [hearing], improper probation 

revocation, and challenging the discretionary aspects of the 

Appellant’s consecutive sentence. The Commonwealth filed a 

response, and this [c]ourt conducted a hearing on June 10, 2019. 

Subsequently, this [c]ourt denied the Appellant’s motion in its 

entirety on June 28, 2019.

Trial Court Opinion, 8/5/20, at 1-3 (citations omitted).
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Timeliness of Appeal

At the outset, we must determine whether this appeal is properly before 

us. “The question of timeliness of an appeal is jurisdictional.” 

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000) (citation 

omitted). “In order to preserve the right to appeal a final order of the trial 

court, a notice of appeal must be filed within thirty days after the date of entry 

of that order.” Id. (citing, inter alia, Pa.R.A.P. 903(a)). 

Rule 708(E) of the Pennsylvania Rules of Criminal Procedure provides 

that “[a] motion to modify a sentence imposed after a revocation shall be filed 

within 10 days of the date of imposition.” Id. “The filing of a motion to modify 

sentence will not toll the 30-day appeal period.” Id. “Under this rule, the 

mere filing of a motion to modify sentence does not affect the running of the 

30-day period for filing a timely notice of appeal. Any appeal must be filed 

within the 30-day appeal period unless the sentencing judge within 30 days 

of the imposition of sentence expressly grants reconsideration or vacates the 

sentence.” Pa.R.Crim.P. 708 (comment) (citing Commonwealth v. 

Coleman, 721 A.2d 798, 799 n.2 (Pa. Super. 1998); Pa.R.A.P. 1701(b)(3)). 

Here, the trial court resentenced Appellant on April 23, 2019, and

Appellant filed a timely post-sentence motion which the court denied on June 

28, 2019. Appellant filed an untimely notice of appeal on July 8, 2019. See 

Pa.R.A.P. 903(a); Pa.R.Crim.P. 708(E). However, in its June 28, 2019 order 

denying Appellant’s post-sentence motion, the trial court incorrectly stated 

that Appellant had the “right to file a notice of appeal within 30 days of the 
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entry of this Order.” Order, 6/28/19. As the order misstated the law and 

improperly advised Appellant of his appeal rights, we decline to quash. See 

Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001) 

(declining to quash untimely appeal where trial court misstated appeal 

period); Commonwealth v. Larkin, 235 A.3d 350, 353 (Pa. Super. 2020) 

(“[T]his Court [has] noted that we have many times declined to quash an 

appeal when the defect resulted from an appellant’s acting in accordance with 

misinformation relayed to him by the trial court.”).

Anders

On October 22, 2020, Counsel filed an Anders brief, in which she avers 

that Appellant’s appeal is frivolous, and requests permission from this Court 

to withdraw from representation. Appellant did not file a response to the 

Anders brief or raise any additional claims.

It is well settled that when presented with an Anders brief, we may not 

review the merits of the underlying issues without first determining whether 

counsel has properly requested permission to withdraw. Commonwealth v. 

Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). 

Therefore, we address the particular mandates that counsel seeking to 

withdraw pursuant to Anders must follow. These mandates and the 

protection they provide arise because a criminal defendant has a constitutional 

right to a direct appeal and to counsel on appeal. Commonwealth v. Woods, 

939 A.2d 896, 898 (Pa. Super. 2007).

We have explained:
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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.

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and remand 

the case with appropriate instructions (e.g., directing counsel 

either to comply with Anders or file an advocate’s brief on 

Appellant’s behalf).

Id. (citations omitted).

Additionally, there are requirements as to the content of the Anders

brief:

[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 satisfied the above requirements, 

it is this Court’s duty to review the trial court proceedings to determine 

whether there are any non-frivolous issues that the appellant could raise on 

appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) 

(en banc).
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Instantly, Counsel has complied with the requirements of Anders. 

Counsel filed a petition with this Court stating that after reviewing the record, 

she finds the appeal to be wholly frivolous. Petition to Withdraw as Counsel, 

10/22/20, ¶ 7. In conformance with Santiago, Counsel included in the 

Anders brief summaries of the facts and procedural history, as well as 

discussion of the issues she believes may arguably support Appellant’s appeal. 

See Anders Brief at 5-26. Also, Counsel sets forth her conclusion that the 

appeal is frivolous with citation to relevant authority. Id. Finally, Counsel has 

attached to her petition to withdraw the letter she sent to Appellant, along 

with Counsel’s petition and Anders brief. Petition to Withdraw as Counsel, 

10/22/20, Ex. A. Counsel’s letter advised Appellant of his right to proceed pro 

se or with private counsel, and raise any additional issues he deems worthy 

of this Court’s consideration. Accordingly, we proceed to Appellant’s 

substantive claims.

Issues

Appellant presents the following questions for our consideration:

A. WHETHER THE [TRIAL] COURT ERRED WHEN IT FAILED TO 

HOLD A GAGNON II HEARING AS REQUIRED BY 42 PA. C.S. 

§ 9771, AND PA. R. CRIM. P. 908?

B. WHETHER THE [TRIAL] COURT FAILED TO STATE ON THE 

RECORD THE REASONS FOR THE SENTENCE IMPOSED ON 

HIS GAGNON VIOLATION AS REQUIRED BY 42 PA. C.S. § 

9721(B)?

C. WHETHER THE SENTENCE ON APPELLANT’S PROBATION 

VIOLATION IS EXCESSIVE, HARSH, ARBITRARY AND 
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CONTRARY TO THE FUNDAMENTAL NORMS OF SENTENCING 

IN THIS COMMONWEALTH?

D. WHETHER THE IMPOSITION OF THE 24 TO 48 MONTHS 

SENTENCE OF CONFINEMENT ON APRIL 23, 2019 

FOLLOWING THE REVOCATION OF APPELLANT’S 

PROBATION VIOLATED THE DOUBLE JEOPARDY CLAUSE OF 

THE FIFTH AMENDMENT AS APPLIED TO THE STATES 

THROUGH THE FOURTEENTH AMENDMENT?

Anders Brief at 4.

Appellant first claims “his due process rights . . . were violated” because 

the trial court erred in failing to hold a Gagnon II2 hearing prior to revoking 

his original sentence. Anders Brief at 14. This issue is waived and frivolous. 

It is well-settled that “issues not raised in the lower court are waived 

and may not be raised for the first time on appeal.” Pa.R.A.P. 302(a).3 

Our Pennsylvania Rules of Appellate Procedure and our case 

law provide the well-established requirements for preserving a 

claim for appellate review. It is axiomatic that “[i]ssues not raised 

in the lower court are waived and cannot be raised for the first 

time on appeal.” Pa.R.A.P. 302(a). “The absence of a 

contemporaneous objection below constitutes a waiver” of the 

claim on appeal. Commonwealth v. Powell, [] 956 A.2d 406, 

423 ([Pa.] 2008); Tindall v. Friedman, 970 A.2d 1159, 1174 

(Pa. Super. 2009) (“On appeal, we will not consider assignments 

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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. 

Starr, 234 A.3d 755, 762 (Pa. Super. 2020) (explaining when probationer is 

detained based on an alleged probation violation, due process requires a 

Gagnon I hearing to determine if there is probable cause that probationer 

committed a violation of his probation, followed by a second more 

comprehensive Gagnon II hearing where the court determines whether to 

revoke probation). 

3 “[T]he mere filing of an Anders brief and petition to withdraw will not serve 

to resuscitate claims that were already waived upon the filing of the notice of 

appeal.” Commonwealth v. Cox, 231 A.3d 1011, 1016-17 (Pa. Super. 2020) 

(citing Pa.R.A.P. 302(a)). 
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of error that were not brought to the tribunal’s attention at a time 

at which the error could have been corrected or the alleged 

prejudice could have been mitigated.”) (citation omitted)).

Commonwealth v. Rodriguez, 174 A.3d 1130, 1144–45 (Pa. Super. 2017). 

Furthermore, when an appellant includes an issue in his Pa.R.A.P. 1925(b) 

statement, such inclusion does not “resurrect” a waived claim. Id. at 1145 

n.6 (citing Steiner v. Markel, 968 A.2d 1253 (Pa. 2009)). 

As a result of Appellant pleading guilty to new crimes and thus incurring 

new convictions, the trial court revoked Appellant’s probation and resentenced 

him to 24 to 48 months of incarceration. At the April 23, 2019 hearing, 

Appellant’s counsel did not mention or object to the court’s alleged failure to 

conduct a Gagnon II hearing prior to revoking Appellant’s probation. See 

N.T., 4/23/19, at 1-9. Further, and as Counsel notes, Appellant failed to raise 

the issue in his post-sentence motion with the trial court.4 See Appellant’s 

Petition for Reconsideration of Sentence, 5/1/19; Anders Brief at 14. 

Consequently, we agree with the trial court that Appellant’s issue is waived

and therefore frivolous. See Trial Court Opinion, 8/5/20, at 9 (“Appellant’s 

claim is waived as he did not object at the time of revocation and re-sentence 

or in any post-sentence motion.”) (footnote omitted). See also

Commonwealth v. Montalvo, 956 A.2d 926, 936 (Pa. 2008) (recognizing 

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4 While Appellant challenges the trial court’s alleged failure to conduct a 

Gagnon I hearing in his post-sentence motion, he subsequently abandons 

the issue in his Rule 1925(b) concise statement. See Appellant’s Concise 

Statement, 9/25/19. Accordingly, this issue was also waived. See Pa.R.A.P. 

1925 (b)(4)(vii) (“Issues not included in the [concise statement of errors 

complained of on appeal] . . . are waived.”). 
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“general rule that, in order to preserve a claim on appeal, a party must lodge 

a timely objection”) (citing, inter alia, Commonwealth v. May, 887 A.2d 750, 

758 (Pa. 2005) (“To the extent the claims would sound in trial court error, 

they are waived due to the absence of contemporaneous objections.”); 

Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be 

raised for the first time on appeal.”).

In his second and third issues, Appellant challenges the discretionary 

aspects of his sentence. “The right to appellate review of the discretionary 

aspects of a sentence is not absolute, and must be considered a petition for 

permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 

(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this 

Court’s jurisdiction when challenging the discretionary aspects of a sentence.” 

Id. We conduct this four-part test to determine whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted). 

Here, we declined to quash Appellant’s notice of appeal for untimeliness 

due to trial court error; Appellant preserved his sentencing issues in a postsentence motion; and Appellant has included in his brief a Pa.R.A.P. 2119(f) 
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statement. See Anders Brief at 10-11. Therefore, we examine whether 

Appellant presents a substantial question for review. 

Appellant argues his sentence is excessive and the trial court “failed to 

state on the record the reasons for the sentence imposed on his Gagnon

violation as required by 42 PA. C.S. § 9721(B).” Anders Brief at 20 (boldtype and capitalization omitted). We have held that such a challenge presents 

a substantial question for our review. See Commonwealth v. Derry, 150 

A.3d 987, 994-95 (Pa. Super. 2016) (claim that VOP sentencing court failed 

to consider factors under 42 Pa.C.S.A. § 9721(b) raises a substantial 

question). 

With regard to the merits of Appellant’s claims, we recognize: 

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. . . . 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 statement of the reason or reasons 

for the sentence imposed.

42 Pa.C.S.A. § 9721(b). 

“Revocation of a probation sentence is a matter committed to the sound 

discretion of the trial court and that court’s decision will not be disturbed on 

appeal in the absence of an error of law or an abuse of discretion.” 

Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation 

omitted). Following revocation, a sentencing court need not undertake a 
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lengthy discourse for its reasons for imposing a sentence of total confinement, 

but the record as a whole must reflect the sentencing court’s consideration of 

the facts of the crime and character of the offender. Commonwealth v. 

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010). 

In imposing sentence, the trial court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. The trial court should refer to the defendant’s prior 

criminal record, age, personal characteristics, and potential for 

rehabilitation. However, where 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. Additionally, the sentencing 

court must state its reasons for the sentence on the record. 42 

Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the 

requirement that reasons for imposing sentence be placed on the 

record by indicating that he or she has been informed by the presentencing report; thus properly considering and weighing all 

relevant factors.

Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (citations 

omitted).

At sentencing, the trial court stated that it reviewed Appellant’s presentence investigation report. N.T., 4/23/19, at 4. The court further 

emphasized Appellant’s repeated failure to accept responsibility for his 

criminal conduct, his prior but unsuccessful opportunities for rehabilitation, 

and his lack of remorse. See id. at 4-7. We discern no error. “[W]here the 

sentencing court imposed a standard-range sentence with the benefit of a presentence report, we will not consider the sentence excessive.” 
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Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). 

Additionally, “[i]n those circumstances, 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.” Id. 

We agree with Counsel that Appellant’s sentencing claims are frivolous. 

In his fourth issue, Appellant argues the trial court violated the double 

jeopardy clause of the United States Constitution by revoking his probation

and resentencing him. “[T]he question of whether a defendant’s constitutional 

right against double jeopardy was infringed is a question of law.” 

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010). “Hence, 

our scope of review is plenary and our standard of review is de novo.” Id. 

Our Supreme Court has explained that “probation and parole are not 

part of the criminal prosecution[.]” Commonwealth v. Mullins, 918 A.2d

82, 85 (Pa. 2007). “Revocation of probation and resentencing does not 

implicate double jeopardy precisely because revocation is not a second 

punishment for the original conviction, but rather is an integral element of the 

original conditional sentence.” Commonwealth v. Johnson, 967 A.2d 1001, 

1005 (Pa. Super. 2005) (citation omitted). 

Instantly, the trial court revoked Appellant’s probation and resentenced 

him to 24 to 48 months of incarceration. Because the trial court’s revocation 

“is not a second punishment,” but part of Appellant’s original sentence, there 

was no double jeopardy violation, and we agree with Counsel that this issue 
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is frivolous. Anders Brief at 26 (“Counsel concedes that the [trial] court had 

the authority to revoke the previously imposed sentence for robbery and to 

impose a new sentence[.] . . . Consequently, [C]ounsel acknowledges that the 

sentence imposed on April 23, 2019 does not constitute an illegal sentence.”). 

Finally, our independent review reveals no other non-frivolous issues 

Appellant could raise on appeal. See Dempster, 187 A.3d at 272. We 

therefore grant Counsel’s petition to withdraw and affirm Appellant’s judgment 

of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/14/2021