J. S030 09/15

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. Pa tton, appeals from the judgment of sentence imposed on March 19, 2014. Appellant’s counsel has filed an Anders 1 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 vic tim’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).J. S03009/15

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was filed challenging identification evidence and claiming appellant’s arrest was illegal; the omnibus motion was never addressed. (Doc ket #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 inst rument 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 convi ction. 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 ap peal 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.J. S03009/15

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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 fil ed 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 procedu ral history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal;J. S03009/15

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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 (P a. 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, advi sed 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. Millisoc k , 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 Milliso ck 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 discretion ary aspects of appellant’s sentence. “Challenges to the discretionary aspects ofJ. S03009/15

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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 discretionar y 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 r ight 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).J. S03009/15

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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 Shen der’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 co urt 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 t o 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. 105 3, 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, an d 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).J. S03009/15

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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 c onsider 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 clai m 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.J. S03009/15

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Judgment of sentence affirmed. Counsel’s appli cation 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