J. S03009/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JEFFERY L. PATTON, : No. 1227 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, March 19, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0012416-2011

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015

Appellant, Jeffery L. Patton, appeals from the judgment of sentence 

imposed on March 19, 2014. Appellant’s counsel has filed an Anders1 brief 

together with a petition to withdraw as counsel; appellant has filed a pro se

response to the Anders brief. We grant counsel’s petition and affirm.

A review of the record reveals the following facts and procedural 

history. Appellant accosted the victim in the dark, thrust a taser within 

inches of his face, and threatened to use it unless the victim gave him 

money. Appellant took the victim’s money and then threatened to hurt his 

family if the crime was reported. Following his arrest, an omnibus motion 

 

1 Anders v. California, 386 U.S. 738 (1967).
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was filed challenging identification evidence and claiming appellant’s arrest 

was illegal; the omnibus motion was never addressed. (Docket #1.)

Appellant proceeded to a bench trial before the Honorable Angela J. 

Foglietta and was convicted of robbery, use of an incapacitation device, 

theft, simple assault, terroristic threats, recklessly endangering another 

person, and possessing an instrument of crime. Appellant filed a notice of 

appeal, and a panel of this court affirmed his convictions but vacated and 

remanded for resentencing as the trial court failed to merge his convictions 

for theft, simple assault, and REAP with his robbery conviction. On 

March 19, 2014, Judge Foglietta resentenced appellant to concurrent terms 

of three to six years’ incarceration for robbery and use of an incapacitation 

device, to be followed by three years of probation on the non-merged 

offenses. On April 21, 2014, appellant filed an untimely pro se motion for 

reconsideration of sentence.2 (Docket #10.)

On April 21, 2014, defense counsel filed a timely notice of appeal. The 

trial court issued an order to file a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. On July 22, 

2014, counsel filed a statement of intent to file an Anders brief pursuant to 

Rule 1925(c)(4). The trial court filed a Rule 1925(a) opinion on July 29, 

2014, addressing the discretionary aspects of appellant’s sentence. 

 

2

Pennsylvania Rule of Criminal Procedure 720 allows ten days for the filing 

of a post-trial motion.
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Thereafter, on September 4, 2014, counsel filed an Anders brief and an 

application to withdraw as counsel. The sole issue presented for our review 

is a challenge to the discretionary aspects of his sentence. (Appellant’s brief 

at 2.) The Commonwealth filed its brief on December 1, 2014. On 

January 20, 2015, appellant filed his pro se “Answer to Application to 

Withdraw as Counsel (Petition to Challenge Petition to Withdraw),” 

essentially challenging the Anders brief filed by counsel and stating there 

remains a “non-frivolous” issue concerning a motion to suppress his 

identification which his attorney did not present to the trial court. 

As noted above, appellant’s counsel, Jeffrey P. Shender, Esq., has filed 

a petition to withdraw and accompanying Anders brief. “When presented 

with an Anders brief, this Court may not review the merits of the underlying 

issues without first passing on the request to withdraw.” Commonwealth 

v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v. 

Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation 

omitted).

In order for counsel to withdraw from an appeal 

pursuant to Anders, certain requirements must be 

met, and counsel 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;
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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.

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Our review of Attorney Shender’s application to withdraw, supporting 

documentation, and Anders brief reveals that he has complied with all of 

the foregoing requirements. We note that counsel also furnished a copy of 

the brief to appellant, advised him of his right to retain new counsel, 

proceed pro se, or raise any additional points that he deems worthy of this 

court’s attention, and attached to the Anders petition a copy of the letter 

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d 

748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the 

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice 

requirements set forth in Millisock that remain binding legal precedent.”). 

As Attorney Shender has complied with all of the requirements set forth 

above, we now turn to any issues counsel states arguably support the 

appeal.

Again, the issue herein presents a challenge to the discretionary 

aspects of appellant’s sentence. “Challenges to the discretionary aspects of 
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sentencing do not entitle a petitioner to review as of right.” 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Before 

this court can address such a discretionary challenge, an appellant must 

comply with the following requirements:

An appellant challenging the discretionary aspects of 

his sentence must invoke this Court’s jurisdiction by 

satisfying a four-part test: (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).

Id.

Our review of the record reveals that appellant did not object at the 

sentencing hearing on March 19, 2014, or file a motion for reconsideration of 

sentence.3 Thus, it is clear appellant first raised his challenge to the 

discretionary aspects of the sentence in his appellate brief. As such, the 

issue is waived. Pa.R.A.P. 302(a) (issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal).

 

3 Appellant did file a pro se post-sentence motion. However, that motion 

failed to preserve his discretionary sentencing claim for two reasons. First, 

the motion was untimely filed. Second, appellant had no right to file a 

pro se motion because he was represented by counsel; his pro se

post-sentence motion was a nullity, having no legal effect. Commonwealth 

v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007).
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Having determined that the instant appeal is wholly frivolous, and 

after our own independent review, there are no issues of arguable merit 

apparent from the record; we will grant Attorney Shender’s petition to 

withdraw. We now consider the issues raised in appellant’s pro se

response. 

Appellant appears to argue that trial counsel was ineffective for failing 

to litigate a motion to suppress challenging his identification. This claim 

must be deferred until collateral review. Commonwealth v. Barnett, 25 

A.3d 371, 377 (Pa.Super. 2011) (en banc) (holding that this court cannot 

review ineffective assistance of counsel claims on direct appeal absent 

defendant’s waiver of PCRA review). As this court recently explained:

In Commonwealth v. Grant, 572 Pa. 48, 813 

A.2d 726 (2002), our Supreme Court announced a 

general rule providing a defendant “should wait to 

raise claims of ineffective assistance of trial counsel 

until collateral review” pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Grant, at 738. Nevertheless, in 

Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 

831 (2003), reargument denied, July 17, 2003, 

cert. denied, Bomar v. Pennsylvania, 540 U.S. 

1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), our 

Supreme Court recognized an exception to Grant

and found that where ineffectiveness claims had 

been raised in the trial court, a hearing devoted to 

the question of ineffectiveness was held at which 

trial counsel testified, and the trial court ruled on the 

claims, a review of an ineffectiveness claim was 

permissible on direct appeal. See Bomar, 826 A.2d 

at 853-854; See also Commonwealth v. Fowler, 

893 A.2d 758, 763-764 (Pa.Super.2006); 

Commonwealth v. Wright, 599 Pa. 270, 319-320, 

961 A.2d 119, 148 (2008).
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. . . .

However, most recently, in [Barnett, supra at 

376-378] this Court concluded our Supreme Court 

has limited the applicability of Bomar and that 

Barnett’s assertions of counsel’s effectiveness are 

appropriately raised only on collateral review. We 

ultimately determined that “[w]ith the proviso that a 

defendant may waive further PCRA review in the trial 

court, absent further instruction from our Supreme 

Court, this Court, pursuant to Wright and Liston, 

will no longer consider ineffective assistance of 

counsel claims on direct appeal.” Id. at 377. As 

such, we dismiss Appellant’s first issue without 

prejudice to her ability to raise it in a subsequent 

PCRA petition, if she so chooses.

Commonwealth v. Quel, 27 A.3d 1033, 1036-1037 (Pa.Super. 2011) 

(footnote omitted).4

Herein, there is no indication in the record that appellant made an 

express waiver of PCRA review. Accordingly, we are unable to reach the 

merit of this issue on direct appeal. Thus, we dismiss this claim without 

prejudice to appellant’s right to present it in a subsequent PCRA petition. 

Furthermore, this underlying issue cannot be raised in this appeal as only 

resentencing was the subject of this appeal.

 

4 Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), decided 

October 30, 2013, our supreme court addressed the continued viability and 

limited scope of the Bomar exception. The exceptions discussed in Holmes

do not apply to the facts in this case.
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Judgment of sentence affirmed. Counsel’s application to withdraw is 

granted. Appellant’s pro se “Answer to Application to Withdraw as Counsel 

(Petition to Challenge Petition to Withdraw)” is denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2015