J-S68040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

DESHAUNDRE JAMAL WILLIAMS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1181 WDA 2019

Appeal from the Judgment of Sentence Entered June 18, 2019

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000019-2019

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 17, 2020

Appellant, Deshaundre Jamal Williams, appeals from the judgment of 

sentence entered in the Erie County Court of Common Pleas, following his 

guilty plea to one count each of robbery and firearms not to be carried without 

a license.1 We affirm and grant counsel’s petition to withdraw. 

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

November 22, 2018, Appellant struck Victim in the back of the head with a 

handgun and stole Victim’s cell phone. Appellant entered a guilty plea to the 

charged offenses on April 3, 2019. With the benefit of a pre-sentence 

investigation (“PSI”) report, the court sentenced Appellant on June 18, 2019, 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701(a)(1)(iv) and 6106(a)(1), respectively. 
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to an aggregate thirty-one (31) to sixty-two (62) months’ incarceration. On 

June 25, 2019, Appellant timely filed a post-sentence motion, which the court 

denied on July 9, 2019. Appellant timely filed a notice of appeal on August 6, 

2019. On August 7, 2019, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

In lieu of a concise statement, counsel filed a Rule 1925(c)(4) statement on

August 12, 2019, of intent to file an Anders brief. On August 23, 2019, 

counsel (a public defender) filed in this Court a petition to withdraw as counsel 

because different counsel from the public defender’s office had entered an 

appearance on Appellant’s behalf. This Court granted counsel’s petition on 

August 27, 2019. On October 7, 2019, new counsel filed in this Court an 

application to withdraw and an Anders brief. 

As a preliminary matter, 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, 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, 
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978 A.2d at 358-61. Substantial compliance with these requirements is 

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

2007). After establishing 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). 

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation:

Neither Anders nor [Commonwealth v. McClendon, 495 

Pa. 467, 434 A.2d 1185 (1981)] requires 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 

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 
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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. 

Instantly, Appellant’s counsel has filed a petition to withdraw. The 

petition states counsel conducted a conscientious review of the record and 

determined the appeal is wholly frivolous. Counsel also supplied Appellant 

with a copy of the brief and a letter explaining Appellant’s right to retain new 

counsel or to proceed on appeal pro se to raise any additional issues Appellant 

deems worthy of this Court’s attention. In the Anders brief, counsel provides 

a summary of the facts and procedural history of the case. Counsel’s 

argument refers to relevant law that might arguably support Appellant’s 

issues. Counsel further states the reasons for counsel’s conclusion that the 

appeal is wholly frivolous. Therefore, counsel has substantially complied with 

the technical requirements of Anders and Santiago. 

Appellant has not responded to the Anders brief pro se or with newlyretained private counsel. Counsel raises the following issue on Appellant’s 

behalf: 

WHETHER...APPELLANT’S SENTENCE IS MANIFESTLY 

EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT 

WITH THE OBJECTIVES OF THE SENTENCING CODE?

(Anders Brief at 3). 

Appellant argues his sentence of 31 to 62 months’ incarceration is 

excessive and an abuse of the court’s discretion. Appellant contends the
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objectives of 42 Pa.C.S.A. § 9721(b) of the Sentencing Code could have been 

achieved without the imposition of such a lengthy sentence. Appellant further

avers the court failed to consider certain mitigating factors, such as (1) 

Appellant’s young age at the time of the offense; (2) Appellant’s lack of any 

significant criminal history; (3) Appellant’s guilty plea and acceptance of 

responsibility for his crimes; and (4) the remorse Appellant expressed at the 

sentencing hearing. As presented, Appellant’s claims challenge the 

discretionary aspects of his sentence. See Commonwealth v. Lutes, 793 

A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly 

excessive challenges discretionary aspects of sentencing); Commonwealth 

v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 

653, 676 A.2d 1195 (1996) (explaining claim that court did not consider 

mitigating factors challenges discretionary aspects of sentencing).2

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910 

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing 

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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily 

precludes a defendant from contesting the validity of his...sentence other than 

to argue that the sentence is illegal or that the sentencing court did not have 

jurisdiction, open plea agreements are an exception in which a defendant will 

not be precluded from appealing the discretionary aspects of the sentence.” 

Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) 

(emphasis in original). “An ‘open’ plea agreement is one in which there is no 

negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as 

to sentencing, so he can challenge the discretionary aspects of his sentence.
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issue: 

[W]e 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 

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

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating that there is a substantial question 

as to the appropriateness of the sentence under the Sentencing Code. 

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

2119(f). “The requirement that an appellant separately set forth the reasons 

relied upon for allowance of appeal furthers the purpose evident in the 

Sentencing Code as a whole of limiting any challenges to the trial court’s 

evaluation of the multitude of factors impinging on the sentencing decision to 

exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112 

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387 

(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks 

omitted). 
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“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741 

A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 

A.2d 1013 (2001)). 

A claim of excessiveness can raise a substantial question as to the 

appropriateness of a sentence under the Sentencing Code, even if the 

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at 

624. Bald allegations of excessiveness, however, do not raise a substantial 

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, 

a substantial question will be found “only where the appellant’s Rule 2119(f) 

statement 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....” 

Id. Nevertheless, “[a]n allegation that a sentencing court ‘failed to consider’ 

or ‘did not adequately consider’ certain factors does not raise a substantial 

question that the sentence was inappropriate.” Cruz-Centeno, supra at 545 

(quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995), 
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appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also 

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining 

allegation that sentencing court failed to consider specific mitigating factor 

generally does not raise substantial question; claim that sentencing court 

ignored appellant’s rehabilitative needs failed to raise substantial question). 

“Where [PSI] reports exist, we shall continue to presume that the 

sentencing judge was aware of relevant information regarding the defendant’s 

character and weighed those considerations along with mitigating statutory 

factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 

(1988).

A [PSI] report constitutes the record and speaks for itself. 

In order to dispel any lingering doubt as to our intention of 

engaging in an effort of legal purification, we state clearly 

that [sentencing courts] are under no compulsion to employ 

checklists or any extended or systematic definitions of their 

punishment procedure. Having been fully informed by the 

pre-sentence report, the sentencing court’s discretion 

should not be disturbed. This is particularly true, we repeat, 

in those circumstances where it can be demonstrated that 

the judge had any degree of awareness of the sentencing 

considerations, and there we will presume also that the 

weighing process took place in a meaningful fashion.

Id. at 102, 546 A.2d at 18. See also Tirado, supra (explaining if sentencing 

court has benefit of PSI, law presumes court was aware of relevant information 

regarding appellant’s character and weighed those considerations along with 

mitigating factors).

Instantly, Appellant has properly preserved his sentencing issue for 

appeal. Nevertheless, Appellant’s bald allegation of excessiveness does not 
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warrant review. See Mouzon, supra. Likewise, Appellant’s claim the 

sentencing court failed to consider certain mitigating factors does not pose a 

substantial question. See Berry, supra; Cruz-Centeno, supra. Moreover, 

the court had the benefit of a PSI report. Therefore, we can presume the 

court was aware of the relevant information regarding mitigating 

circumstances. See Devers, supra; see also Tirado, supra. Thus, 

Appellant is not entitled to relief on these grounds. Following an independent 

review of the record, we agree with counsel that the appeal is wholly frivolous. 

See Dempster, supra. Accordingly, we affirm the judgment of sentence 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: 1/17/2020