J-S20035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ROBERT LEE BENSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 817 WDA 2021

Appeal from the Judgment of Sentence Entered March 29, 2021

In the Court of Common Pleas of Venango County

Criminal Division at No(s): CP-61-CR-0000494-2020, 

CP-61-CR-0000764-2018

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: OCTOBER 5, 2022

Appellant, Robert Lee Benson, appeals nunc pro tunc from the judgment 

of sentence entered in the Venango County Court of Common Pleas, following 

his guilty plea to two counts of simple assault, and one count of resisting 

arrest.

1

 We affirm and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows. On 

January 14, 2019, Appellant pled guilty at docket CP-61-0000764-2018 

(“docket 764-2018”) to one count of simple assault, based on a physical 

altercation Appellant had with his paramour (“Victim”). As part of the plea 

deal, the Commonwealth agreed to recommend a sentence of probation. The 

court sentenced Appellant on March 12, 2019, in accordance with the plea 

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1 18 Pa.C.S.A. §§ 2701(a)(1); and 5104, respectively. 
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deal and imposed a term of 24 months’ probation. The court revoked 

probation on June 13, 2019, and resentenced Appellant on July 19, 2019, to 

24 months’ probation. The court revoked probation again on September 26, 

2019, and resentenced Appellant on October 22, 2019, to 146 days to 23 

months and 29 days’ imprisonment. Appellant was paroled on October 25, 

2019.

On February 5, 2021, Appellant pled guilty at docket No. CP-61-CR0000494-2020 (“docket 494-2020”), to two counts of simple assault and one 

count of resisting arrest. Appellant’s guilty plea stemmed from another 

incident of domestic violence with Victim, during which Appellant also 

struggled with police and resisted arrest. The Commonwealth agreed as part 

of the plea deal to recommend standard range sentences. The court deferred 

sentencing pending preparation of a pre-sentence investigation (“PSI”) report. 

On February 9, 2021, the court revoked parole at docket 764-2018, based on 

Appellant’s convictions at docket 494-2020.

Appellant proceeded to sentencing at both dockets on March 29, 2021. 

At sentencing, the court reviewed Appellant’s prior record score and the 

offense gravity score for each crime. The court considered Appellant’s actions 

at docket 494-2020 in slamming Victim against a wall and choking her, 

resisting arrest, and almost injuring the officers in the process. The court 

further had the benefit of a PSI report. The court also heard testimony from 

Victim. The court noted Appellant’s long history of violent offenses, and that 
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Appellant was still on supervision for his prior assault on Victim at docket 764-

2018 when he committed the crimes at docket 494-2020. Ultimately, the 

court abided by the terms of the plea deal at docket 494-2020, imposing 

standard range sentences for each crime. Specifically, the court sentenced 

Appellant to 1 to 2 years’ imprisonment for both simple assault convictions, 

and 9 to 24 months’ imprisonment for resisting arrest. The court imposed 

each sentence consecutively, for an aggregate term at docket 494-2020 of 33 

to 72 months’ imprisonment. The court noted that any lesser sentence would 

depreciate the seriousness of the offenses. At docket 764-2018, the court 

immediately re-paroled Appellant, noting that parole would expire at this 

docket on May 28, 2021.

On April 19, 2021, Appellant sought reinstatement of his post-sentence 

motion rights nunc pro tunc. The court granted relief that day, and Appellant 

timely filed post-sentence motions nunc pro tunc on April 26, 2021. The court 

denied relief that day. Appellant did not file a timely direct appeal but 

following restoration of his direct appeal rights nunc pro tunc on July 2, 2021, 

Appellant timely filed a nunc pro tunc notice of appeal on July 12, 2021. On 

July 21, 2021, the court ordered Appellant to file a concise statement of errors 

complained of on appeal. Appellant timely complied on July 23, 2021.

As a preliminary matter, we observe that Appellant filed a single notice 

of appeal listing both underlying docket numbers, in violation of 

Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018) (holding that 
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common practice of filing single notice of appeal from order involving more 

than one docket will no longer be tolerated; such practice violates Pa.R.A.P. 

341, which requires filing of separate appeals from order that resolves issues 

arising on more than one docket; failure to file separate appeals generally 

requires appellate court to quash appeal). Recently, however, in 

Commonwealth v. Young, ___ Pa. ___, 265 A.3d 462 (2021), the Supreme 

Court expressly overruled the pronouncement in Walker that the failure to 

file separate notices of appeal in connection with issues arising at more than 

one docket necessarily requires this Court to quash the appeal. The Young 

Court held that Pa.R.A.P. 341 “requires that when a single order resolves 

issues arising on more than one docket, separate notices of appeal must be 

filed from that order at each docket; but, where a timely appeal is erroneously 

filed at only one docket, [Pa.R.A.P.] 902 permits the appellate court, in its 

discretion, to allow correction of the error, where appropriate.” Id. at ___, 

265 A.3d at 477. 

Under Young, we could remand for Appellant to file corrected notices 

of appeal at each underlying docket. See, e.g., Interest of A.S.C., No. 1015 

EDA 2021 (Pa.Super. filed July 20, 2022) (unpublished memorandum) 

(remanding under Young for appellant to file corrected notice of appeal at 

each separate trial court docket within 10 days). See also Pa.R.A.P. 126(b) 

(stating we may rely on unpublished decisions filed in this Court after May 1, 

2019 for their persuasive value).
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Nevertheless, we decline to take such action in this case because it is 

clear from Appellant’s argument that he is challenging only his sentence at 

docket 494-2020. Notwithstanding Appellant’s reference to both dockets in 

his statement of questions presented, the crux of his argument is that the 

court imposed too harsh of a sentence of imprisonment. Here, the court 

imposed no sentence of imprisonment at docket 764-2018. Rather, the 

court immediately re-paroled Appellant at that docket. Indeed, the trial court 

opinion states: 

[I]t is not clear what, specifically, [Appellant] considers to 

be excessive about the sanction for his parole revocation at 

[docket] 764-2018, even when considered in conjunction 

with the sentence at [docket] 494-2020. The court took 

none of [Appellant’s] street time, properly applied his time 

served to [docket] 764-2018, directed that he served the 

unexpired term, and re-paroled him immediately. As a 

result, following his sentencing at [docket] 494-2020, 

[Appellant] had approximately two months remaining on his 

sentence at [docket] 764-2018, which expired on May 28, 

2021. To the extent that [Appellant] argues that the original 

sentence—following his second probation revocation in nine 

months in October of 2019—of 146 days to 24 months less 

a day was excessive, that is not the proper subject of this 

appeal. ...

(Trial Court Opinion, filed 1/3/22, at 4). Under these circumstances, we 

consider Appellant’s claims at docket 764-2018 abandoned and confine our 

review to Appellant’s claims at docket 494-2020.

As a second preliminary matter, appellate counsel seeks to withdraw 

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 
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978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition 

the Court for leave to withdraw, certifying that after a thorough review of the 

record, counsel has concluded the issues to be raised are wholly frivolous; 2) 

file a brief referring to anything in the record that might arguably support the 

appeal; and 3) furnish a copy of the brief to the appellant and advise him of 

his right to obtain new counsel or file a pro se brief to raise any additional 

points the appellant deems worthy of review. Santiago, supra at 173-79, 

978 A.2d at 358-61. Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 

2007). 

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw:

Neither Anders nor McClendon2requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To repeat, 

what the brief must provide under Anders are references 

to anything in the record that might arguably support the 

appeal. 

* * *

Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that arguably 

supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed 

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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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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 

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 178-79, 978 A.2d at 361. After confirming that counsel has met the 

antecedent requirements to withdraw, this Court makes an independent 

review of the record to confirm that the appeal is wholly frivolous. 

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also 

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

Instantly, appellate counsel has filed a petition to withdraw. The petition 

states that counsel reviewed the trial court record and determined that the 

appeal is frivolous. Counsel also served a copy of the petition to Appellant, 

along with a letter advising him of his right to file a response to counsel’s 

petition as either a pro se litigant, or through new counsel. Further, counsel 

filed an Anders brief which explains the facts and procedural history of the 

case and discusses the relevant law. Counsel’s brief also cites to the record 

and explains counsel’s conclusion that the appeal is wholly frivolous. 

Therefore, counsel has substantially complied with the requirements set forth 

in Anders and Santiago.

Counsel raises the following issue on Appellant’s behalf:

The sentence in this case was manifestly excessive and

clearly unreasonable in that the period of incarceration he 
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received for both his revocation sentence and his sentence 

on the new charges was too harsh considering the 

aggregate amount of time he received. 

(Anders Brief at 2).3

Appellant argues that a lighter imprisonment sentence could have 

achieved the goals of protecting the public and serving the rehabilitative needs 

of Appellant. Appellant asserts the court relied too heavily on Victim’s remarks 

at sentencing. Appellant complains the court imposed consecutive sentences 

at the top of the standard range for each crime. Appellant concludes the 

sentence was excessive, the court abused its sentencing discretion, and this 

Court must grant relief. We disagree.

Initially, a challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979 

(2001). Prior to reaching the merits of a discretionary sentencing issue:

We conduct a four part analysis to determine: (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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

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3 Appellant has not filed a responsive brief pro se or with newly-retained 

counsel.
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denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

A substantial question exists “only when the appellant advances a 

colorable argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal 

citation omitted). In other words, an appellant’s Rule 2119(f) statement must 

sufficiently articulate the manner in which the sentence violates either a 

specific provision of the sentencing scheme set forth in the Sentencing Code 

or a particular fundamental norm underlying the sentencing process. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

This Court has stated:

Pennsylvania law affords the sentencing court discretion to 

impose [a] sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences 

already imposed. Any challenge to the exercise of this 

discretion does not raise a substantial question. In fact, this 

Court has recognized the imposition of consecutive, rather 

than concurrent, sentences may raise a substantial question 

in only the most extreme circumstances, such as where the 

aggregate sentence is unduly harsh, considering the nature 

of the crimes and the length of imprisonment.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal 

denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation 

marks omitted). 

Further, this Court will not disturb the judgment of the sentencing court 

absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843 
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(Pa.Super. 2006). 

[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, ...: 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. Simply 

stated, the sentencing court sentences flesh-and-blood 

defendants and the nuances of sentencing decisions are 

difficult to gauge from the cold transcript used upon 

appellate review. Moreover, the sentencing court enjoys an 

institutional advantage to appellate review, bringing to its 

decisions an expertise, experience, and judgment that 

should not be lightly disturbed. Even with the advent of the 

sentencing guidelines, the power of sentencing is a function 

to be performed by the sentencing court. Thus, rather than 

cabin the exercise of a sentencing court’s discretion, the 

guidelines merely inform the sentencing decision. 

Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62 

(2007) (internal quotation marks, footnotes, and citations omitted). 

Pursuant to Section 9721(b), “the court shall 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.” 42 Pa.C.S.A. § 9721(b). See also Commonwealth 
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v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit 

of PSI report, we can presume it was aware of relevant information regarding 

defendant’s character and weighed those considerations along with mitigating 

statutory factors). 

Instantly, the trial court explained:

[Appellant’s] aggregated sentence—a minimum of just 

under 3 years and a maximum of 6 years—can hardly be 

described as extreme or grossly disproportionate under the 

circumstances. [Appellant] has been convicted multiple 

times over the course of the past two to three years in 

connection with violent incidents where [Appellant] injured 

the same victim, his paramour. The sentences here are all 

within the standard guideline ranges, albeit at the top of the 

standard range. ... [Appellant] may believe his sentence to 

be unduly harsh, but the circumstances here fall well short 

of the extreme circumstances necessary to raise a 

substantial question. 

[Appellant’s] argument that the court improperly weighed 

the victim’s statement in crafting his sentence is of no avail. 

The court is not certain what portion of the record would 

support [Appellant’s] claim. Regardless, a defendant’s 

claim that a court was unduly influenced by a victim’s 

statement does not raise a substantial question. 

(Trial Court Opinion at 5) (internal citations omitted). 

We agree with the court that Appellant’s claims, as presented, do not 

raise a substantial question. See Commonwealth v. Zirkle, 107 A.3d 127, 

133 (Pa.Super. 2014), appeal denied, 632 Pa. 671, 117 A.3d 297 (2015)

(considering appellant’s challenge that court was unduly influenced by victims’ 

statements and stating: “[A] claim that a court did not weigh the factors as 

an appellant wishes does not raise a substantial question”); Austin, supra. 
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Moreover, the court had the benefit of a PSI report, so the court was 

aware of all relevant and mitigating factors. See Fowler, supra. The court 

further noted in the sentencing order that any lesser sentence would 

depreciate the seriousness of the offenses. Thus, even if Appellant’s claims 

had raised a substantial question, they would not merit relief. See Fullin, 

supra. See also Walls, supra. Following our independent review of the 

record, we agree the appeal is frivolous. See Dempster, supra; Palm, 

supra. Accordingly, we affirm and grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/2022