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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIONNE PAYNE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 370 EDA 2019

Appeal from the Judgment of Sentence Entered December 18, 2018

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

No(s): CP-23-CR-0002014-2013

COMMONWEALTH OF PENNSYLVANIA

v.

BRIONE PAYNE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 371 EDA 2019

Appeal from the Judgment of Sentence Entered December 18, 2018

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

No(s): CP-23-CR-0000566-2008

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED AUGUST 29, 2019

Appellant, Brione Payne, appeals from judgments of sentence imposed 

by the Court of Common Pleas of Delaware County (trial court) on December 

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* Retired Senior Judge assigned to the Superior Court.
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18, 2018 for his violation of parole and probation in two criminal cases, CP23-CR-0000566-2008 (No. 566-2008) and CP-23-CR-0002014-2013 (No. 

2014-2013).

1

 Appellant’s appellate counsel has filed applications to withdraw 

and Anders2 briefs, stating that the appeals are wholly frivolous. After careful 

review, we grant counsel’s applications to withdraw and affirm.

In No. 566-2008, Appellant pled guilty on May 15, 2018 to charges of 

simple assault and reckless endangerment3 and was sentenced to 10 days to 

23 months’ imprisonment for the simple assault conviction and a consecutive 

two years’ probation for reckless endangerment. No. 566-2008 Guilty Pleas; 

No. 566-2008 Certificate of Imposition of Judgment of Sentence, 5/15/08. 

Appellant was immediately paroled, but on July 28, 2009, that parole was 

revoked and he was sentenced to serve the full 682 days of backtime on the 

simple assault conviction, extending his maximum date for that conviction to 

June 19, 2011 and the date that his probation would end on the reckless 

endangerment conviction to June 19, 2013. No. 566-2008 Certificate of 

Imposition of Judgment of Sentence, 7/28/09; No. 566-2008 Request for 

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1 Appellant’s name appears as “Brionne Payne” in 370 EDA 2019 and the 

record in No. 2014-2013 and as “Brione Payne” in 371 EDA 2019 and the 

record in No. 566-2008. The transcript of the consolidated sentencing at issue 

here states his name as “Brione Payne.” 

2 Anders v. California, 386 U.S. 738 (1967).

3 18 Pa.C.S. §§ 2701 and 2705, respectively.
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Bench Warrant, 1/9/13. After Appellant had completed serving his sentence 

for the simple assault conviction, his probation on the reckless endangerment 

conviction was revoked on August 27, 2013 based on his guilty plea to 

manufacture, delivery or possession with intent to deliver a controlled 

substance (PWID)4for which he had been arrested in February 2013,5 and he 

was resentenced on the reckless endangerment conviction to 111/2 months to 

23 months imprisonment. No. 566-2008 Certificate of Imposition of Judgment 

of Sentence, 8/27/13; CP-23-CR-0001686-2013 Docket Entries at 1-3. 

In No. 2014-2013, Appellant pled guilty on May 9, 2013, to a single 

count of PWID based on a sale of a .10 gram oxycodone pill to an undercover 

officer in January 2013. No. 2014-2013 Guilty Plea; No. 2014-2013 Certificate 

of Imposition of Judgment of Sentence, 5/9/13; No. 2014-2013 N.T. 

Preliminary Hearing at 4-6. Appellant was sentenced to three years’ probation 

for this conviction. No. 2014-2013 Certificate of Imposition of Judgment of 

Sentence, 5/9/13. 

On July 22, 2015, while on parole on the reckless endangerment 

sentence in No. 566-2008 and serving his probation in No. 2014-2013, 

Appellant was arrested in Philadelphia and charged with robbery, burglary, 

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4 35 P.S. § 780-113(a)(30).

5 This PWID conviction is not at issue in these appeals.
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firearms offenses, conspiracy, and other offenses. No. 2014-2013 Request 

for Bench Warrant, 3/19/16; N.T. Gagnon II6 Hearing, 12/18/18, at 4-5; CP51-CR-0009669-2015 Docket Entries at 1, 3. On June 25, 2018, Appellant 

pled guilty in that Philadelphia County case to robbery, burglary, conspiracy, 

and possession of a firearm by a prohibited person and was sentenced for 

those offenses to an aggregate term of 31/2 to 10 years’ imprisonment, 

followed by two years’ probation. N.T. Gagnon II Hearing, 12/18/18, at 5; 

CP-51-CR-0009669-2015 Docket Entries at 5-7.

On December 18, 2018, the trial court held a Gagnon II Hearing in 

both No. 566-2008 and No. 2014-2013. Appellant admitted that he pled guilty 

to robbery, burglary, conspiracy, and possession of a firearm by a prohibited 

person and that those crimes were violations of his parole in No. 566-2008 

and his probation in No. 2014-2013. N.T. Gagnon II Hearing, 12/18/18, at 

3, 5. The Commonwealth requested that the trial court impose 165 days 

backtime in No. 566-2008, the remaining unserved portion of Appellant’s 

reckless endangerment sentence, and that in No. 2014-2013 the court revoke 

Appellant’s probation and resentence him to one to two years’ imprisonment 

followed by one year of probation. Id. at 3-4. The Commonwealth requested 

that that these sentences run concurrently with each other, but consecutive 

to the new sentence in the Philadelphia case. Id. at 4. Appellant did not 

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6 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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contend that the proposed sentences themselves were inappropriate or 

excessive, but argued that the sentences in No. 566-2008 and No. 2014-2013 

should run concurrently with the new 31/2 to 10 year sentence. Id. at 5. 

Appellant also spoke at the hearing concerning vocational training that he had 

obtained and violence prevention and other rehabilitative programs in which 

he had participated while in prison on the new charges. Id. at 5-7. 

Following Appellant’s statement, the trial court found Appellant in 

violation of his parole in No. 566-2008 and, in No. 2014-2013, found Appellant 

in violation of his probation and revoked his probation. N.T. Gagnon II

Hearing, 12/18/18, at 9. The court imposed a sentence of 165 days backtime 

in No. 566-2008 and a sentence of 9-24 months followed by one year of 

probation in No. 2014-2013 and ordered that these sentences run 

concurrently to each other and consecutive to Appellant’s new 31/2 to 10 year 

sentence. Id. at 9-10; No. 566-2008 Certificate of Imposition of Judgment of 

Sentence, 12/18/18; No. 2014-2013 Certificate of Imposition of Judgment of 

Sentence, 12/18/18.

On December 27, 2018, Appellant filed a timely motion for 

reconsideration of sentence in No. 2014-2013, arguing that the trial court 

should reconsider its imposition of a 9-24 month sentence consecutive to 

Appellant’s new sentence in light of Appellant’s rehabilitative efforts while in 

prison. The trial court denied this post-sentence motion on January 2, 2019. 
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On January 17, 2019, Appellant filed timely direct appeals from both 

judgments of sentence.7 On June 5, 2019, appellate counsel filed Anders

briefs and applications to withdraw as counsel in both appeals. In each of his 

Anders briefs, appellate counsel presents the following issue:

Whether the term of incarceration imposed herein was harsh and 

excessive under the circumstances due to its imposition as a 

consecutive sentence.

370 EDA 2019 Anders Br. at 3; 371 EDA 2019 Anders Br. at 3. Appellant 

has not filed any pro se response to counsel’s applications to withdraw or 

Anders briefs. The Commonwealth filed briefs in support of affirmance of the 

judgments of sentence in both appeals. 

Before this Court can consider the merits of these appeals, we must first 

determine whether appellate counsel has satisfied all of the requirements that 

court-appointed counsel must meet before leave to withdraw may be granted. 

Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en 

banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) 

(en banc). 

To withdraw from representing a convicted defendant on direct appeal 

on the basis that the appeal is frivolous, counsel must (1) petition the court 

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In accordance with Pa.R.A.P. 1925(c)(4), appellate counsel filed statements 

of intent to file an Anders brief in lieu of statements of errors complained of 

on appeal. The trial court filed Rule 1925 opinions in both cases stating that 

in accordance with Anders procedure, it would defer issuing an opinion in 

support its judgment of sentence until this Court rules on whether there are 

arguably meritorious issues for review. 
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for leave to withdraw stating that he has made a conscientious examination 

of the record and has determined that the appeal would be frivolous; (2) file 

a sufficient Anders brief; and (3) provide a copy of the Anders brief to the 

defendant and advise the defendant of his right to retain new counsel or 

proceed pro se and to raise any additional points that he deems worthy of the 

court’s attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 

(Pa. Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply 

with the all of the following requirements: 

[T]he Anders brief ... 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also

Dempster, 187 A.3d at 270; Commonwealth v. Zeigler, 112 A.3d 656, 660 

(Pa. Super. 2015). If 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 wholly frivolous. 

Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660.

In these appeals, appellate counsel states in each of his applications to 

withdraw that he has reviewed the entire record and determined that there 

are no non-frivolous grounds for the appeal. Appellate counsel’s June 3, 2019 

letters to Appellant provided copies of the Anders briefs to Appellant and 
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advised him 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, 

each of appellate counsel’s Anders briefs provides procedural and factual 

summaries of the case with references to the record and cites and discusses 

the applicable law on which counsel bases his conclusion that there are no 

non-frivolous issues that he can raise on Appellant’s behalf. Appellate counsel 

has thus filed sufficient Anders briefs and has fully complied with the 

procedural requirements for withdrawal as counsel in both appeals. 

We therefore proceed to conduct an independent review to ascertain 

whether the appeals are indeed wholly frivolous. This Court first considers 

the issues raised by counsel in the Anders brief and determines whether they 

are in fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. 

Super. 2018) (en banc); Dempster, 187 A.3d at 272. In addition, if the Court 

finds all of those issues frivolous, this Court conducts an examination of the 

record to discern if there are any other issues of arguable merit overlooked by 

counsel. Yorgey, 188 A.3d at 1197; Dempster, 187 A.3d at 271-72. 

The lone issue raised in counsel’s Anders briefs is whether the 

sentences imposed in the two cases are excessive, in light of Appellant’s 

rehabilitative efforts, due to their imposition as consecutive with respect to 

Appellant’s new conviction. These are challenges to the discretionary aspects 

of Appellant’s sentences and are therefore not appealable as of right. 

Dempster, 187 A.3d at 272; Bynum-Hamilton, 135 A.3d at 184. Rather, 
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an appeal from the discretionary aspects of a sentence is permitted only after 

this Court determines that there is a substantial question that the sentence 

was not appropriate under the Sentencing Code. Dempster, 187 A.3d at 

272; Bynum-Hamilton, 135 A.3d at 184; Zeigler, 112 A.3d at 661.8 

A claim that a sentence within statutory limits is excessive is generally 

not sufficient to raise a substantial question, absent a claim that the sentence 

violates a specific provision of the Sentencing Code or that the sentencing 

court did not consider sentencing guidelines or factors concerning the crimes 

and the defendant that the court is to consider under the Sentencing Code. 

Dempster, 187 A.3d at 272-23 n.6; Zeigler, 112 A.3d at 662; 

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012); 

Commonwealth v. Titus, 816 A.2d 251, 255–56 (Pa. Super. 2003). The 

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8 An appellant challenging the discretionary aspects of sentence must also 

comply with Pa.R.A.P. 2119(f) in his appellate brief and have preserved the 

issue in the trial court at sentencing or by filing a timely post sentence motion. 

See, e.g., Dempster, 187 A.3d at 272. Appellant has satisfied these 

requirements in both appeals. Appellant’s Anders briefs in both appeals 

include the concise statement of reasons for allowance of appeal of 

discretionary aspects of sentence that Pa.R.A.P. 2119(f) requires. 370 EDA 

2019 Anders Br. at 8-9; 371 EDA 2019 Anders Br. at 8-9. Appellant’s post 

sentence motion in No. 2014-2013 satisfies the requirement of preservation 

of the issue in the trial court. Appellant did not file a post sentence motion in 

No. 566-2008, but did preserve the issue in the trial court by objecting at the 

Gagnon II hearing to imposition of a consecutive sentence and making the 

same argument as he asserts here concerning his rehabilitative efforts. N.T. 

Gagnon II Hearing, 12/18/18, at 5-7. We therefore do not find the issue 

raised by appellate counsel to be barred by waiver in either appeal. 
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fact that sentences for separate criminal episodes are imposed consecutively 

does not raise a substantial question where the resulting total aggregate 

sentence is not extraordinarily lengthy for the criminal conduct at issue. 

Commonwealth v. Radecki, 180 A.3d 441, 468-70 (Pa. Super. 2018);

Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014). 

These appeals do not raise a substantial question that either of the 

sentences was inappropriate under the Sentencing Code. The record is clear 

that the sentencing court considered the mitigating factors asserted by 

Appellant. Following Appellant’s statement concerning his rehabilitative 

efforts, the trial court decided to impose a shorter minimum sentence than 

the Commonwealth recommended in No. 2014-2013 and ordered that the 

backtime on the parole revocation in No. 566-2008 would run concurrently 

with that sentence. N.T. Gagnon II Hearing, 12/18/18, at 8-10. 

The sentences were in accordance with the Sentencing Code and were 

not extreme. Imposing a sentence of imprisonment for the probation 

revocation in No. 2014-2013 was proper under the Sentencing Code, as 

Appellant had been convicted of new, serious crimes of violence. 18 Pa.C.S. 

§ 9771(c)(1). The sentence imposed, 9-24 months plus one year of probation, 

was not unduly harsh or lengthy. To the contrary, it was far below the 

statutory maximum for this PWID offense, which is 15 years. 35 P.S. § 780-

113(f)(1); Commonwealth v. Strasser, 134 A.3d 1062, 1063 n.2 (Pa. 

Super. 2016). 
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The judgment in No. 566-2008 was a parole revocation and 

recommitment requiring that Appellant serve the remainder of his sentence 

from which he was on parole. Where parole is revoked, the court is limited to 

recommitting the defendant to serve his existing sentence and does not have 

the authority to impose a new penalty. Commonwealth v. Kalichak, 943 

A.2d 285, 290 (Pa. Super. 2008); Commonwealth v. Galletta, 864 A.2d 

532, 538 (Pa. Super. 2004). Recommitment to serve the remainder of a 

sentence is therefore not subject to review for excessiveness; the only 

question in such a case is whether the court erred in revoking parole and 

recommitting him to confinement. Kalichak, 943 A.2d at 291; Galletta, 864 

A.2d at 539. No such error can be shown here. Conviction of a new crime is 

a legally sufficient reason for revocation of a defendant's parole and 

recommitting him to serve the remainder of his sentence. Kalichak, 943 A.2d 

at 291; Galletta, 864 A.2d at 539. Indeed, Appellant stipulated to the 

revocation of parole here and has not contended that the backtime imposed 

by the trial court exceeded the remaining portion of his sentence in No. 566-

2008. N.T. Gagnon II Hearing, 12/18/18, at 3, 5; 371 EDA 2019 Anders

Br. at 9. 

Moreover, the sentences were not imposed consecutively with respect 

to each other and the total aggregate sentence of 9-24 months in these cases 

in combination with the 31/2 to 10 year sentence for the new convictions with 

which these sentences are consecutive does not result in an excessive 
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sentence. The new convictions are for completely different conduct committed 

by Appellant and the resulting aggregate sentence of 4 years and 3 months 

to 12 years is not only less than the statutory maximum for Appellants’ PWID 

conviction here, it is far below the statutory maximum of 20 years for each of 

the robbery, burglary, and conspiracy convictions in the new case.9 Compare

Radecki, 180 A.3d at 468-71 (challenge to consecutive sentences for 

convictions under 35 P.S. § 780–113(a) that resulted in aggregate sentence 

of 11 years and 1 month to 22 years and 2 months did not raise a substantial 

question where the convictions arose out of separate criminal acts) and

Zirkle, 107 A.3d at 133-34 (consecutive sentences for three burglaries that 

resulted in an aggregate sentence of 17 years and 1 month to 40 years did 

not raise a substantial question) with Commonwealth v. Sarvey, 199 A.3d 

436, 444, 455-56 (Pa. Super. 2018) (vacating as excessive consecutive 

sentences that resulted in an aggregate sentence of 101/2 to 24 years of 

incarceration followed by five years of probation for a single non-violent 

criminal episode) and Commonwealth v. Williams, 69 A.3d 735, 742-44

(Pa. Super. 2013) (vacating as excessive consecutive sentences for violations 

of multiple probations that resulted in an aggregate sentence of 24 years and 

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9 See CP-51-CR-0009669-2015 Docket Entries at 5 (robbery, burglary, and 

conspiracy charges to which Appellant pled guilty were first-degree felonies); 

18 Pa.C.S. § 1103(1) (maximum sentence for first-degree felony is 20 years’ 

imprisonment).
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2 months to 48 years and 4 months imposed and were also imposed 

consecutively to a 7 to 20 year sentence). 

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

raised by Appellant lacks any arguable merit. In addition, we have reviewed 

the certified record and have discovered no additional non-frivolous issues. 

Therefore, we grant appellate counsel’s petition to withdraw and affirm the 

sentencing court’s judgment of sentence. 

Judgments of sentence affirmed. Petitions to withdraw as counsel 

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/19