J-S68016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRIAN SCOTT ELLIS JR.

Appellant No. 1846 WDA 2015

Appeal from the Judgment of Sentence dated October 20, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000649-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRIAN ELLIS

Appellant No. 1847 WDA 2015

Appeal from the Judgment of Sentence dated October 20, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000651-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRIAN ELLIS

Appellant No. 1848 WDA 2015

Appeal from the Judgment of Sentence dated October 20, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000653-2015
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COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRIAN ELLIS 

Appellant No. 1849 WDA 2015

Appeal from the Judgment of Sentence dated October 20, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000693-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRIAN SCOTT ELLIS JR.

Appellant No. 1850 WDA 2015

Appeal from the Judgment of Sentence dated October 20, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000758-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRIAN SCOTT ELLIS JR.

Appellant No. 1851 WDA 2015

Appeal from the Judgment of Sentence dated October 23, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000760-2015
J-S68016-16

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COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRIAN ELLIS 

Appellant No. 1852 WDA 2015

Appeal from the Judgment of Sentence dated October 20, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000767-2015

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 14, 2016

Appellant, Brian Scott Ellis, Jr., appeals from the judgment of sentence 

of 7-21 years’ incarceration, which was imposed after he pleaded guilty to 

criminal trespass, theft by unlawful taking, burglary, criminal conspiracy to 

commit burglary, and receiving stolen property.1 With this appeal, 

Appellant’s counsel has filed a petition to withdraw and an Anders2 brief, 

stating that the appeal is wholly frivolous. After careful review, we affirm 

and grant counsel’s petition to withdraw.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3503(a)(1)(i), 18 Pa.C.S. § 3921(a), 18 Pa.C.S. § 3502(a)(2), 

18 Pa.C.S. § 903(c), 18 Pa.C.S. § 3925(a), respectively.

2 Anders v. California, 386 U.S. 738 (1967).
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In August and November 2014, Appellant entered two private 

residences in Erie and stole items from each house that were valued at 

between $2,500 and $3,000. N.T., 9/8/15, at 11, 14; N.T. 10/20/15, at 25, 

27. Later in November, he conspired with two other individuals to burglarize 

and steal items from a third house; the stolen items from this house were 

valued at $12,800. N.T., 9/8/15, at 13; N.T. 10/20/15, at 26. He entered 

two more houses in December; the stolen items from one of these houses 

were valued at $3,239.40. N.T., 9/8/15, at 12, 15; N.T. 10/20/15, at 25.3 

Appellant entered another house in January 2015 and stole property there 

that was valued at between $500 and $1,000. N.T., 9/8/15, at 16-17; N.T., 

10/20/15, at 27. Also in December, he received property that he knew was 

likely stolen. N.T., 9/8/15, at 16.4

On September 8, 2015, Appellant appeared before the trial court and 

entered a guilty plea to each of these charges. On October 20, 2015, the 

trial court held a sentencing hearing, during which Appellant’s trial counsel 

explained, by way of mitigation, that, although Appellant was only 20 years 

old, he already had “a very pervasive heroin addiction.” N.T., 10/20/15, at 

10. Appellant’s sister confirmed Appellant’s long history of drug addiction 

____________________________________________

3 The value of the stolen items from the second house was not entered on 

the record. N.T., 10/20/15, at 27.

4 The total value of the stolen property that Appellant received was not 

entered on the record. N.T., 10/20/15, at 27.
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and explained that members of their entire family including their parents, 

have battled addiction. Id. at 12-16. Appellant’s sister added that their 

mother “is on her death bed” and that their grandparents are elderly and 

have always tried to help Appellant and her. Id. at 13, 16.

One victim provided impact testimony, stating that “[s]ince [she] 

live[s] alone it was all the more devastating” to have her home burglarized, 

and that Appellant stole “precious family heirlooms that [she] can never 

replace coming from [her] great-grandmother.” N.T., 10/20/15, at 6. This 

victim said she felt violated and constantly thought about how anybody 

could break into her home; her sense of safety had been compromised. Id.

at 7. During her testimony, she repeatedly asked the trial court to impose 

the maximum sentence allowable. 

At the end of the sentencing hearing, the trial court imposed an 

aggregate sentence of 9-23 years’ incarceration. The trial court explained 

its reasoning for imposing this sentence on the record, as follows:

In this case I’ve done the following: I’ve considered the 

Pennsylvania Sentencing Code and its various factors. I’ve got 

the benefit of a presentence report. I have a victim impact 

statement. I have letters from [Appellant] and accompanying 

documents, and I’ve talked to the parties here today as well as 

the family, and the one victim spoke.

I’ve already spoke at length about my view of burglary.[5] It 

literally can destroy communities. And [Appellant] here is part 

____________________________________________

5 Earlier during the sentencing hearing, the trial court had stated: 

(Footnote Continued Next Page)
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of a sophisticated ring that was stealing from houses in a 

planned and calculated manner for his and other people’s 

purposes to get money for drugs. Heedless then, although not 

now, of the consequences here. This sentence is going to hurt 

his family, but it’s required.

The balance here on this sentence is not to give [Appellant] a 

sentence so long that he never gets out of prison. The 

Guidelines probably allow that. Nevertheless, a substantial 

sentence is required and there is no bargain discount for doing 

multiple burglaries.

N.T., 10/20/16, at 30-31. On October 23, 2015, the court filed a written 

order correcting the sentence on two counts, resulting in a final aggregate 

sentence of 7-21 years’ incarceration.

On November 23, 2015, Appellant filed this timely direct appeal. On 

December 17, 2015, Appellant’s trial counsel, Attorney Horton, filed a 

“Statement of Intent to File an Anders Brief.” On December 18, 2015, the 

trial court entered an order stating that, in light of Attorney Horton’s 

Statement of Intent to File an Anders Brief, “there are no non-frivolous 

issues for appeal” and “no Opinion is necessary.” On February 1, 2016, 

(Footnote Continued) _______________________

[W]hen [people] find out they have been burglarized, they will 

have a monetary loss, sure. Sometimes they have insurance. 

But beyond that, you violate their sense of security. . . . And

that upsets them. A burglary can upset a neighborhood. 

Enough burglaries on a block can upset whole parts of the 

community. People move. They no longer sleep at night. They 

sometimes buy burglary alarms. Far beyond the property 

damage, far beyond the property damage, every burglary . . . 

involves the destruction of a community.

N.T., 10/20/15, at 7-8.
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Attorney Horton filed a petition for leave to withdraw as counsel. On 

February 2, 2016, this Court granted Attorney Horton leave to withdraw and 

appointed new appellate counsel, Attorney Merski. Order, 2/2/16.

Attorney Merski filed an Anders Brief on June 13, 2016, in which she 

presented the following issue:

Whether the Appellant’s sentence is manifestly excessive, clearly 

unreasonable and inconsistent with the objectives of the 

Sentencing Code?

Anders Brief, at 3. On the same day, Attorney Merski sent a letter to

Appellant, informing him that she intended to file a petition for leave to 

withdraw. She filed her petition to withdraw on June 22, 2016, and 

Appellant has not filed a pro se response to that petition. On June 23, 2016, 

the Commonwealth sent a letter to this Court stating that it did not intend to 

file a responsive 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) (internal citation omitted). An Anders brief shall comply with the 

requirements set forth by the Supreme Court of Pennsylvania in 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009):

[W]e hold that in the Anders brief that accompanies courtappointed counsel’s petition to withdraw, 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; (3) set forth 
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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. at 361. 

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 

2005), and its progeny, counsel seeking to withdraw on direct appeal must 

meet the following obligations to his or her client:

Counsel must also 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 the 

Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal 

quotation marks and citation omitted). “Once counsel has satisfied the 

above requirements, it is then this Court’s duty to conduct its own review of 

the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally, 

“this Court must conduct an independent review of the record to discern if 

there are any additional, non-frivolous issues overlooked by counsel.” 

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) 

(footnotes and citations omitted).
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In this appeal, we observe that Attorney Merski’s June 13, 2016 

correspondence to Appellant provided a copy of the Anders Brief to 

Appellant and advised Appellant of his right either to retain new counsel or 

to proceed pro se on appeal to raise any points he deems worthy of the 

court’s attention. Further, the Anders Brief complies with prevailing law in 

that counsel has provided a procedural and factual summary of the case with 

references to the record. Counsel additionally advances relevant portions of 

the record that could arguably support Appellant’s claims on appeal. 

Ultimately, counsel cites her reasons and conclusion that Appellant’s “case 

presents no non-frivolous issues for review.” Anders Brief, at 12. We 

therefore conclude that counsel’s Anders brief complies with the 

requirements set forth in Santiago. As a result, we proceed to conduct an 

independent review to ascertain if the appeal is indeed wholly frivolous.

We recognize, as did counsel, that “Pennsylvania law makes clear that 

by entering a guilty plea, the defendant waives his right to challenge on 

direct appeal all non[-]jurisdictional defects except the legality of the 

sentence and the validity of the plea.” Commonwealth v. Lincoln, 72 

A.3d 606, 609 (Pa. Super. 2013) (internal citation omitted), appeal denied, 

87 A.3d 319 (Pa. 2014); see also Anders Brief, at 6. Appellant has not 

challenged the validity of his guilty plea, and the oral colloquy conducted by 

the trial court at the time of Appellant’s plea was sufficient to assure that the 

plea was properly made. See N.T., 9/8/15, at 3-17.
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Appellant challenges only a discretionary aspect of his sentence — its 

length. “Challenges to the discretionary aspects of sentencing do not entitle 

an appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d 

720, 726 (Pa. Super. 2012). Instead, this Court has set forth an analytical 

framework under which we determine whether we may exercise our 

discretion to hear such an appeal:

Before we reach the merits of this issue, we must engage in a 

four part analysis to determine: (1) whether the appeal is 

timely; (2) whether Appellant preserved his issue; (3) whether 

Appellant's brief includes a concise statement of the reasons 

relied upon for allowance of appeal with respect to the 

discretionary aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the sentence is 

appropriate under the sentencing code. . . . [I]f the appeal 

satisfies each of these four requirements, we will then proceed to 

decide the substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–1043 (Pa. Super. 2014), 

appeal denied, 109 A.3d 678 (Pa. 2015). The determination of what 

constitutes a substantial question must be evaluated on a case-by-case 

basis. Glass, 50 A.3d at 727. 

In the current case, Appellant filed a timely notice of appeal and 

properly preserved this issue in his post-sentence motion. Additionally, the 

Anders brief contains a concise statement of the reasons for which he seeks 

allowance of an appeal, in compliance with Rule 2119(f) of the Rules of 

Appellate Procedure. See Anders Brief, at 5-9. The Rule 2119(f) statement 

sets forth the claim that the sentencing court sentenced within the 

guidelines but failed to consider the factors set forth in 42 Pa.C.S. § 
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9721(b). Section 9721(b) requires the sentencing court to “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.” Appellant’s argument therefore 

raises a substantial question. See Commonwealth v. Buterbaugh, 91 

A.3d 1247, 1266 (Pa. Super. 2014) ( “[a]rguments that the sentencing court 

failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a 

substantial question”; quotations and citation omitted), appeal denied, 104 

A.3d 1 (Pa. 2014). Hence, we will consider the substantive merits of his 

sentencing claim.

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law,

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

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

reargument denied (2015), appeal denied, 117 A.3d 297 (Pa. 2015)

(citation omitted). “A sentencing court need not undertake a lengthy 

discourse for its reasons for imposing a sentence or specifically reference the 

statute in question, but the record as a whole must reflect the sentencing 
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court's consideration of the facts of the crime and character of the offender.” 

Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012).

As the record demonstrates, prior to imposing sentence, the trial court 

explained that Appellant was “part of a sophisticated ring that was stealing 

from houses in a planned and calculated manner,” N.T., 10/20/15, at 31.6 

The court therefore clearly considered the need to protect the public, the 

gravity of the offenses, and the specific facts of Appellant’s crimes. See 42 

Pa.C.S. § 9721(b); Schutzues, 54 A.3d at 96.

The trial court also stated that it evaluated the victim impact 

statement and victim testimony during the sentencing hearing. N.T., 

10/20/15, at 30-31. The court stated in this regard that burglary “literally 

can destroy communities.” Id. at 31. The trial court therefore kept in mind 

the impact on the victim and the community. See 42 Pa.C.S. § 9721(b).

Finally, the trial court considered the testimony of Appellant’s sister, 

N.T., 10/20/15, at 31, who attested to his rehabilitative needs, id. at 12-17. 

The trial court therefore considered this factor. See 42 Pa.C.S. § 9721(b).

Accordingly, the trial court properly reviewed all of the requisite 

factors and did not abuse its discretion when imposing Appellant’s sentence. 

____________________________________________

6 Because Appellant pleaded guilty, no additional details about the 

“sophisticated burglary ring” were entered on the record, but the charges 

made clear that he burglarized homes as part of a conspiracy with others.
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Consequently, Appellant’s sentence is not manifestly excessive or 

unreasonable.

Based on the foregoing, we agree with appellate counsel that the 

sentencing issue raised by Appellant lacks merit. In addition, we have 

reviewed the certified record consistent with Flowers, 113 A.3d at 1250, 

and have discovered no additional arguably meritorious issues. Accordingly, 

we grant appellate counsel’s petition to withdraw and affirm the trial court’s 

judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2016