J-S13038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH WAYNE GREEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1504 MDA 2021

Appeal from the Judgment of Sentence Entered October 12, 2021

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

No(s): CP-35-CR-0001080-2020

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 05, 2022

Appellant Keith Wayne Green appeals from the judgment of sentence1

entered in the Court of Common Pleas of Lackawanna County on October 12, 

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* Former Justice specially assigned to the Superior Court.

1 Appellant was sentenced on October 12, 2021, and counsel for Appellant

filed a timely post-sentence motion on October 22, 2021. Counsel filed a

notice of appeal on November 10, 2021.

On December 9, 2021, this Court directed Appellant to show cause as 

to why the appeal should not be dismissed as premature as post-sentence 

motion remained pending. See Commonwealth v. Claffey, 80 A.3d 780, 

783 (Pa.Super. 2013) (noting that an appeal filed while post-sentence motion 

is pending is premature), appeal denied, 86 A.3d 231 (Pa. 2014); see also

Pa.R.Crim.P. 720 cmt. (“No direct appeal may be taken by a defendant while

his or her post-sentence motion is pending.”). Counsel for Appellant filed a

response on December 16, 2021, in which counsel indicated that the postsentence motion was denied by order of October 26, 2021, but the order had 

not been entered on the docket until December 13, 2021, and was served on 

December 16, 2021.

A notice of appeal must be filed within 30 days of the entry of the order 

being appealed. See Pa.R.A.P. 903(a); Commonwealth v. Moir, 766 A.2d 

1253 (Pa.Super. 2000). If the defendant files a timely post sentence motion,

(Footnote Continued Next Page)
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2021, after he entered an open guilty plea to Firearms not to be carried 

without a license, 18 Pa. C.S.A. §6106(a)(1), and to Fleeing or attempting to 

elude a police officer, 75 Pa. C.S.A. §3733(a). Additionally, Appellant's 

counsel has filed an Application to Withdraw as Counsel and an Anders2 brief

on the basis of frivolity. After careful review, we grant counsel’s Application to 

Withdraw as Counsel and affirm Appellant’s judgment of sentence.

The trial court set forth the relevant facts and procedural history herein 

as follows: 

On March 12, 2021, [Appellant] pled guilty in the abovecaptioned case, and on October 12, 2021, was sentenced. On 

November 10, 2021, [Appellant] filed a Notice of Appeal of the 

judgment of sentence to the Superior Court. This opinion is filed 

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the notice of appeal shall be filed within 30 days of the entry of the order

deciding the motion. See Pa.R.Crim.P. 720(A)(2)(a). In Commonwealth v. 

Cooper, 27 A.2d 994, 1008 (Pa. 2011), our Supreme Court held that a pro se 

notice of appeal does not divest the trial court of jurisdiction to act upon a 

timely filed post-sentence motion later filed by counsel. Cooper, 27 A.2d at 

1008. The Cooper Court held that the premature appeal should have been 

treated as if it had been filed after the denial of post-sentence motions in 

accordance with Pa.R.A.P. 905(a)(5).

In the instant matter, the notice of appeal was filed at a time when the 

post-sentence motion had been denied but had not been entered or served;

thus, it was premature. However, the trial court served the order denying the 

post-sentence motion on December 16, 2021. Therefore, the matter may be 

considered timely filed in accordance with Pa.R.A.P. 905(a)(5) (providing that 

“[a] notice of appeal filed after the announcement of a determination but 

before the entry of an appealable order shall be treated as filed after such 

entry and on the day thereof.”)

2 Anders v. California, 368 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009).
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in compliance with Rule 1925(a) of the Pennsylvania Rules of

Appellate Procedure.

I. BACKGROUND

On March 12, 2021, [Appellant] pled guilty to one count of 

firearms not to be carried without a license, and one count of 

fleeing or attempting to elude a police officer, and, in exchange 

the numerous other charges pending against [Appellant] were 

nolle prossed. These charges arose on June 30, 2020, when 

[Appellant] led police on a high speed chase in Scranton and 

crashed his vehicle into a house. The police found a firearm on the 

floor in front of the driver's seat of [Appellant’s] vehicle.

On October 12, 2021, [Appellant] was sentenced. The court 

stated that the problem for [Appellant] is that this was a crime of 

violence, and that he has a serious prior record. Transcript of 

October 12, 2021 Sentencing at 4-5. The court noted that even 

though he might receive a favorable guideline sentence, his prior 

record score of five really jacks up any sentence that is to be 

imposed. Id. at 5. The court also stated that his prior convictions 

are for robbery, assault, and fleeing and eluding, and go back 16 

years. Id. The court imposed a 3.5 to 7 year sentence on the 

firearms charge, and a 15 to 30 month sentence on the fleeing 

and eluding charge, concurrent to the firearms sentence. Id. at 5-

6. The court ordered a drug and alcohol evaluation and a mental

health evaluation. Id. at 6. The court pointed out that the sentence 

fell in the standard range of the sentencing guidelines, and that in 

fashioning the sentence, the court gave serious consideration to 

the nature and gravity of the offense, [Appellant’s] rehabilitative 

needs, and the entire contents of the pre-sentence file. Id. at 7.

On October 22, 2021, [Appellant] filed a motion for 

reconsideration of sentence. On November 10, 2021, [Appellant]

filed a Notice of Appeal, and on November 23, 2021, this court 

ordered [Appellant] to file a concise statement of the matters 

complained of on appeal in each case within 21 days pursuant to 

Pa.R.A.P. 1925(b). [Appellant] filed a Statement of Matters 

Complained of on Appeal on December 3, 2021.

Trial Court Opinion, filed 1/6/22 at 1-2. 

Counsel filed her Application to Withdraw as Counsel and an Anders

brief with this Court on February 22, 2022. Appellant has not retained 
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independent counsel, and he has not filed a pro se response to the Anders

brief. The trial court filed its Rule 1925(a) Opinion on January 6, 2022. 

Before we may consider the issues raised in the Anders brief, we must 

consider counsel's petition to withdraw from representation. See 

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa.Super. 2010) (holding that, 

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).

Pursuant to Anders, when counsel believes an appeal is frivolous and 

wishes to withdraw from representation, counsel must do the following:

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record, counsel has 

determined the appeal would be frivolous; (2) file a brief referring 

to any issues that might arguably support the appeal, but which 

does not resemble a no-merit letter; and (3) furnish a copy of the 

brief to the defendant and advise him of his right to retain new 

counsel, proceed pro se, or raise any additional points he deems 

worthy of this Court's attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006) 

(citation omitted).

In Santiago, the Pennsylvania Supreme Court addressed the second 

requirement of Anders, i.e., the contents of an Anders brief, and required 

that the brief:

(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, 
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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. 

Once counsel has satisfied the Anders requirements, it is then this 

Court's responsibility “to conduct a simple review of the record to ascertain if 

there appear on its face to be arguably meritorious issues that counsel, 

intentionally or not, missed or misstated.” Commonwealth v. Dempster, 

187 A.3d 266, 272 (Pa.Super. 2018).

Herein, counsel has complied with the procedural requirements of 

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

McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny. Counsel provided 

Appellant with a letter advising him of his rights to retain new counsel or to 

proceed pro se pursuant to Commonwealth v. Millisock, 873 A.2d 748 

(Pa.Super. 2005). The letter is attached to counsel’s Application to Withdraw 

as Counsel. Although the petition does not contain proof of service on

Appellant, the Millisock letter references it as having been enclosed with the 

letter.

Counsel’s Anders brief contains a Pa.R.A.P. 2119(f) statement, copies

of Appellant’s Pa.R.A.P. 1925(b) statement and the trial court opinion, and 

proof of service on Appellant. In the brief, counsel provides a summary of the 

facts and procedural history of the case and refers to relevant law that might 

arguably support Appellant's issues. Counsel further states the reasons for 

her conclusion that, following a conscientious examination of the record, she 
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has determined the appeal is wholly frivolous. Therefore, counsel has 

substantially complied with the technical requirements of Anders and 

Santiago.

Accordingly, as counsel has complied with the procedural requirements 

for withdrawing from representation, we will conduct an independent review 

to determine whether Appellant's appeal is wholly frivolous. Commonwealth 

v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018) (en banc) (quotation 

omitted).

In the Anders brief, counsel sets forth the following issue that Appellant 

wishes to raise:

WHETHER THE SENTENCES IMPOSED ON BOTH OFFENSES WERE

INAPPROPRIATELY EXCESSIVE, HARSH AND AN ABUSE OF 

DISCRETION.

Anders brief at 4. This issue presents a challenge to the discretionary aspects 

of Appellant’s sentence. 

Pennsylvania law makes clear that by entering a guilty plea, a defendant 

waives his right to challenge on direct appeal all defects and defenses except 

the legality of the sentence and the validity of the plea. Commonwealth v. 

Lincoln, 72 A.3d 606, 609 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 

A.3d 319 (2014). However, under certain circumstances, the entry of a guilty

plea will not preclude a challenge to the discretionary aspects of sentencing. 

Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super. 1994). “The 

determination of whether discretionary aspects of sentencing may be 
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challenged after a guilty plea is entered depends upon the actual terms of the 

plea bargain, specifically, to what degree a sentence agreement has been 

reached.” Id. at 18. As this Court has explained:

where a defendant pleads guilty pursuant to a plea agreement 

specifying particular penalties, the defendant may not seek a 

discretionary appeal relating to those agreed-upon penalties. 

Permitting a defendant to petition for such an appeal would 

undermine the integrity of the plea negotiation process and could 

ultimately deprive the Commonwealth of sentencing particulars 

for which it bargained.

Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa.Super. 2009) 

(citations omitted).

In the matter sub judice, Appellant’s plea agreement did not specify any 

particular sentence; therefore, he may present this challenge to the 

discretionary aspects of his sentence. However, “[t]he 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. Conte, 

198 A.3d 1169, 1173 (Pa.Super. 2018), appeal denied, 206 A.3d 1029 (Pa. 

2019).

An appellant challenging the discretionary aspects of his sentence must 

invoke this Court's jurisdiction by satisfying a four-part test: “(1) the appeal 

is timely; (2) the appellant has preserved his issue; (3) his brief includes a 

concise statement of the reasons relied upon for allowance of an appeal with 

respect to the discretionary aspects of his sentence; and (4) the concise 

statement raises a substantial question whether the sentence is inappropriate 
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under the Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488 

(Pa.Super. 2019); see also Pa.R.A.P. 2119(f) (stating that an appellant who 

challenges the discretionary aspects of a sentence “shall set forth in a separate 

section of the brief a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a sentence”).

Appellant preserved a challenge to the discretionary aspects of his 

sentence in his Petition for Reconsideration of Sentence, and he filed a timely 

notice of appeal. Also, the Anders brief contains a Pa.R.A.P 2119(f) 

statement. Thus, we next consider whether Appellant has raised a substantial 

question. 

In the Pa.R.A.P. 2119(f) statement, counsel avers that Appellant’s 

sentences were manifestly harsh and excessive because the trial court did not 

sufficiently consider that he had done well “on the street for twenty months”

which demonstrates he is capable of conforming to living a life free of crime. 

Anders brief at 9-10. Thus, we find Appellant has raised a substantial

question. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 

2014) (“This Court has held that an excessive sentence claim—in conjunction 

with an assertion that the court failed to consider mitigating factors—raises a 

substantial question.”). We, therefore, proceed to review Appellant's 

substantive argument.
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Challenges to the discretionary aspects of sentence are reviewed for an 

abuse of discretion. Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. 

Super. 2010). As we reiterated in Moury:

[A]n abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not have abused its 

discretion unless the record discloses that the judgment exercised 

was manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will. In more expansive terms, our Court recently 

offered: An abuse of discretion may not be found merely because 

an appellate court might have reached a different conclusion, but 

requires a result of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so as to be clearly 

erroneous.

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate review is that the 

sentencing court is in the best position to determine the proper 

penalty for a particular offense based upon an evaluation of the 

individual circumstances before it.

Id. at 169-70 (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 

2007) (internal citations omitted)).

The record reflects that, Appellant’s arguments to the contrary, the trial 

court considered the nature of and the circumstances surrounding Appellant’s 

crimes. Appellant pled guilty to the aforementioned crimes on March 12,

2021. At sentencing, the trial court had the benefit of a presentence 

investigation (PSI) report. N.T. 10/12/21, at 3, 7. When the trial court has 

the benefit of a PSI report, “we presume that [it] was aware of relevant 

information regarding the defendant's character and weighed those 

considerations along with any mitigating factors” when imposing sentence. 
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Commonwealth v. Sexton, 222 A.3d 405, 422 (Pa.Super. 2019) (citation 

omitted).

Prior to imposing its sentence, the trial court indicated it was troubled 

by both the fact that this matter involved a crime of violence and Appellant’s 

serious prior record score of five. Id. at 4-5. The trial court further noted 

Appellant had prior convictions for “robbery, assault, fleeing and eluding” and 

stressed that “the events of November 30, 2020, are something that we can’t 

just forget about and minimize.” Id. at 5. Significantly, although the trial 

court explained that in light of his prior record any sentence would need to be 

substantial, it sentenced Appellant in the standard range of the Sentencing

Guidelines and ordered that the sentences were to run concurrently to one 

another. Id. at 5-6. 

In fashioning Appellant’s sentence, the trial court indicated it had given 

serious consideration to the nature and gravity of Appellant’s offenses, his

rehabilitative needs, and the entire contents of the pre-sentence file which 

dated back to 2005. Id. at 7. Thus, in light of the foregoing, we conclude 

the trial court did not abuse its discretion in sentencing Appellant to an 

aggregate term of three and one half (3 1⁄2) to seven (7) years in prison for 

his crimes. Clearly, the trial court could have sentenced in the aggravated 

range based on Appellant’s prior record. 

After examining the issue contained in the Anders brief, we agree with 

counsel that the instant appeal is wholly frivolous. Furthermore, after 
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conducting a full examination of all the proceedings as required pursuant to 

Anders, we discern no non-frivolous issues to be raised on appeal. See 

Yorgey, 188 A.3d at 1195. Thus, we grant counsel's application to withdraw

and affirm Appellant's judgment of sentence.

Application to withdraw as counsel granted. Judgment of sentence 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/5/2022