J-S47003-15

*Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PATRICK LEE STALEY,

Appellant No. 2154 MDA 2014

Appeal from the Judgment of Sentence entered September 2, 2014,

in the Court of Common Pleas of Luzerne County,

Criminal Division, at No: CP-40-CR-00000891-2014

BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015

Patrick Lee Staley (“Appellant”) appeals from the judgment of 

sentence imposed by the trial court after Appellant pled guilty to one count 

of theft by unlawful taking of a motor vehicle, and one count of fleeing or 

attempting to elude police.1 Appellant’s appointed counsel seeks to 

withdraw, citing Anders v. California, 386 U.S. 738 (1967) and 

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We affirm the 

judgment of sentence and grant counsel’s petition to withdraw. 

The pertinent facts and procedural background of this case are as 

follows: On February 24, 2014, officers from the Plains Township Police 

Department were dispatched to the Mohegan Sun Casino in Luzerne County 

____________________________________________

1 18 Pa.C.S.A. § 3921(a) and 75 Pa.C.S.A. § 3733(a).
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following a report of a vehicle theft. Affidavit of Probable Cause, 2/27/14. 

Upon arrival, Officer William Poulos spoke with the victim, Stanley Grebeck, 

who testified that he had arrived at the casino at approximately 10:18 p.m., 

and left his car, a blue Ford Focus, in the valet parking lot, with the keys in 

the ignition. Id. Approximately two hours later, he returned to retrieve his 

vehicle, and found that it was not in the valet parking lot. Id. Surveillance 

video from the Mohegan Sun Casino revealed that at approximately 10:36 

p.m., a white male, approximately 40 years of age, entered Mr. Grebeck’s 

vehicle and drove it toward the casino exit. 

On February 27, 2014, Officer Baranski of the Plains Township Police 

Department observed a blue Ford Focus travelling on Miner Street in Plains, 

Luzerne County, which matched the description of Mr. Grebeck’s vehicle. 

Id. Officer Baranski also observed that the driver of the vehicle matched 

the description of the person seen in surveillance footage driving the vehicle 

from the casino. Officer Baranski alerted Officer Poulos, who arrived at 

Miner Street and checked the vehicle registration. Id. Upon learning that 

the registration was expired, the officers attempted to conduct a traffic stop 

of the vehicle. Id. However, Appellant fled in the vehicle to Kidder Street 

and eventually came to a stop on Jenks Lane, a dead end street, where 

Appellant and an unidentified passenger exited the vehicle and fled on foot. 

Id. Appellant was subsequently apprehended and charged with the 

aforementioned crimes.
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On July 10, 2014, Appellant pled guilty to one count of theft by 

unlawful taking, and one count of fleeing and eluding police. Following a 

hearing on September 2, 2014, the trial court sentenced Appellant to a term 

of imprisonment of twelve to twenty-four months for theft by unlawful 

taking, and a consecutive three to six months for fleeing and eluding, for an 

aggregate sentence of fifteen to thirty months of imprisonment.

On September 19, 2014, Appellant’s counsel filed a motion for 

permission to file nunc pro tunc post-sentence motions, which the trial court 

granted by order filed on September 23, 2014. Appellant filed post-sentence 

motions on September 26, 2014, which the trial court denied on October 2, 

2014. This appeal followed.

On November 17, 2014, Appellant’s counsel filed a notice of intent to 

file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c). On 

December 15, 2014, the trial court entered an order explaining that in light 

of counsel’s November 17, 2014 statement of intent to file an 

Anders/McClendon brief, it would not submit a Pa.R.A.P. 1925(a) opinion.

Appellant presents one issue for our review:

1. Whether the consecutive sentences imposed by the trial court 

on Case No. 891 of 2014 are harsh and excessive?

Anders Brief at 1. 

Appellant’s counsel has filed a brief pursuant to Anders and its 

Pennsylvania counterpart, McClendon. See Anders, 386 U.S. 738; 

McClendon, 434 A.2d at 1187. Where an Anders/McClendon brief has 
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been presented, our standard of review requires counsel seeking permission 

to withdraw pursuant to Anders to: (1) petition the court for leave to 

withdraw stating that after making a conscientious examination of the record 

it has been determined that the appeal would be frivolous; (2) file a brief 

referring to anything that might arguably support the appeal, but which does 

not resemble a “no merit” letter or amicus curiae brief; and (3) furnish a 

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

counsel or raise any additional points that he deems worthy of the court's 

attention. Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super. 

2008). Counsel is required to submit to this Court “a copy of any letter used 

by counsel to advise the appellant of the rights associated with the Anders

process.” Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 

2007). Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 

2009), appellant’s counsel must state in the Anders brief the reasons for 

concluding that the appeal is frivolous. If these requirements are met, we 

may then review the record to determine whether we agree with counsel’s 

assessment.

In the instant case, by letter dated April 30, 2015, Appellant’s counsel 

notified Appellant of her intent to file an Anders brief and petition to 

withdraw with this Court, and informed Appellant of his rights to retain new 

counsel and raise additional issues. That same day, Appellant’s counsel filed 

an appropriate petition seeking leave to withdraw. Finally, Appellant’s 

counsel has submitted an Anders brief to this Court, with a copy provided to 
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Appellant. Accordingly, the technical requirements of Anders have been 

met. We will therefore conduct our own independent examination of the 

issue set forth in the Anders brief to determine if it is frivolous and whether 

counsel should be permitted to withdraw.

Appellant’s sole argument on appeal is that the sentence imposed by 

the trial court was excessive. Anders Brief at 5-8. A challenge to the 

discretionary aspects of a sentence is not appealable as of right. Rather, 

Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 

9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 

2004).

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. The third and fourth of 

these requirements arise because Appellant's attack on his 

sentence is not an appeal as of right. Rather, he must petition 

this Court, in his concise statement of reasons, to grant 

consideration of his appeal on the grounds that there is a 

substantial question. Finally, if the appeal satisfies each of these 

four requirements, we will then proceed to decide the 

substantive merits of the case.

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

omitted).

Here, Appellant has filed a timely notice of appeal, and preserved a 

challenge to the discretionary aspects of his sentence by filing a post-
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sentence motion. In addition, Appellant has included in his brief a statement 

pursuant to Pa.R.A.P. 2119(f). See Anders Brief at 5. We therefore 

proceed to determine whether Appellant has raised a substantial question for 

our review.

Appellant argues that the trial court abused its discretion by imposing 

a harsh and excessive sentence when it denied Appellant’s request for 

admission to the Salvation Army Rehabilitation Program rather than a 

sentence of imprisonment. Anders Brief at 6. 

The determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis. Further:

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.

An appellant making an excessiveness claim raises a 

substantial question when he sufficiently articulates 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. 

When imposing a sentence, the sentencing court must 

consider the factors set out in 42 [Pa.C.S.] § 9721(b), that is, 

the protection of the public, gravity of offense in relation to 

impact on victim and community, and rehabilitative needs of the 

defendant. And, of course, the court must consider the 

sentencing guidelines.

Commonwealth v. Caldwell, 2015 PA Super 128 (May 29, 2015) (citations 

and internal quotations omitted).
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Appellant argues that in making its sentencing determination, the trial 

court should have taken into consideration the fact that Appellant had been 

sober for six years preceding his relapse and the commission of his crimes, 

and that Appellant had previously benefitted from the Salvation Army 

Rehabilitation Program. Anders Brief at 6. See also Post-Sentence Motion, 

9/26/14. Appellant asserts that the trial court’s failure to consider enrolling 

him in the rehabilitation program rather than imposing a sentence of total 

confinement, constituted an abuse of sentencing discretion. This Court has 

made clear, however, that “a claim that a court did not weigh the factors as 

an appellant wishes does not raise a substantial question.” 

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

Accordingly, Appellant’s assertion that the trial court did not properly weigh 

the fact that he had previously benefitted from rehabilitation and had been 

sober for an extended period, does not raise a substantial question for our 

review. 

Even if Appellant had raised a substantial question for our review, we 

find no merit to his claim. At the sentencing hearing, the trial court heard 

statements from Appellant’s counsel, who outlined Appellant’s prior criminal 

history, including the fact that Appellant was on parole at the time he 

committed the crimes in the present case, and requested that Appellant be 

enrolled in the Salvation Army Rehabilitation Program. N.T., 9/2/14, at 3. 

Additionally, the trial court heard from Appellant, who informed the trial 
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court that he likely would not have committed the crimes if he had been 

enrolled in a rehabilitation program, and indicated that he would benefit 

greatly from such program and treatment. Id. at 6.

The trial court, which had the benefit of a pre-sentence investigation 

report, nonetheless explained that because Appellant was already on 

supervision at the time he committed the crimes, “it’s the conclusion of the 

Court that [Appellant] is nonamenable to supervision at this time and ... 

based upon that review that if he’s not incarcerated he’s likely to reoffend”, 

and that “if any rehabilitation is going to take place at this point that it’s best 

done at the state level.” Id. at 7-8. Accordingly, it is clear from the record 

that the trial court in making its sentencing determination considered the 

appropriate factors, including Appellant’s rehabilitative needs, the protection 

of the public, and Appellant’s prior criminal history. We find no abuse of 

discretion by the trial court.

Having reviewed the issue contained in the Anders brief, and after 

independent and thorough review of the record, we find this appeal wholly 

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

the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015