J-S12008-15

2015 PA Super 57

*

 Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD ZEIGLER,

Appellant No. 2248 EDA 2013

Appeal from the Judgment of Sentence May 2, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001450-2012

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ. 

OPINION BY BOWES, J.: FILED MARCH 20, 2015

Edward Zeigler appeals from the judgment of sentence seven to 

fourteen years incarceration to be followed by ten years probation imposed 

by the trial court after he pled guilty to aggravated assault and persons not 

to possess a firearm. Counsel has filed a petition to withdraw from 

representation and a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). 

We decline to permit counsel to withdraw at this stage and remand 

with directions to counsel to file either a merits brief or a supplemental 

Anders brief addressing whether Appellant’s triggering New York robbery 

offense for the persons not to possess a firearm was a juvenile adjudication 

or a conviction. See Commonwealth v. Hale, 85 A.3d 570 (Pa.Super. 

2014), allowance of appeal granted, __ A.3d __ (Pa. 2014) (filed July 2, 
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2014) (discussing grading of persons not to possess a firearm where prior 

offense was a juvenile adjudication).1 

The trial court delineated the following facts underlying Appellant’s 

entry of his guilty plea.

On October 19, 2011, the complainant, Javier Cancel was sitting

alone at the Cove bar, chatting with the bartender, and having a 

few beers. The Defendant and Ms. Ann Marie Thorsen, who were 

seated in a lounge area behind the barstools, were making a lot 

of noise and were goofing around. The Defendant came up 

numerous times to the bar to order drinks and had some words 

with Mr. Cancel. Video surveillance showed that the Defendant 

appeared to be bothering Mr. Cancel, leaning on him, putting his 

arm around him, and making comments. At one point, Mr. 

Cancel got up from his seat for a few moments during which 

time the Defendant sat down on Mr. Cancel's bar stool even 

though there were plenty of other bar stools available. When Mr. 

Cancel came back, he and the Defendant began to elbow each 

other and argue. The Defendant started swearing at Mr. Cancel 

and told him to come outside and fight. Mr. Cancel remained at 

the bar for a few moments, and the Defendant and a female 

companion went outside the bar. Mr. Cancel then did get up and 

leave to go outside to see what was going on; he was 

anticipating engaging in a fistfight with the Defendant. When Mr. 

Cancel got outside, the Defendant told the female to leave the 

area. He headed immediately toward Mr. Cancel and threw at 

least three punches. Mr. Cancel was able to duck and avoid 

those initial punches and then told the Defendant, ''What is that? 

All you've got?" At this time the Defendant, who was only five 

feet away, pulled a firearm from his front waistband area and 

held it with his arm directly outstretched at chest height and 

pointed it at Mr. Cancel. He fired at least three times. Mr. Cancel 

put his right forearm up to shield his face; one of the bullets 

entered his forearm. The Defendant then walked southbound on 

Richmond Street where Joseph Rayner saw a firearm in his hand.

 

1

If Appellant’s New York robbery offense was a juvenile adjudication, under 

current Pennsylvania law, his ten-year probationary sentence for the person 

not to possess a firearm would exceed the statutory maximum sentence 

allowable. 
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The Defendant then walked to his car which was parked on 

Melvale Street where he removed his jacket and most of his 

clothing and put the clothing inside his vehicle. The Defendant 

threw the gun (a .380 caliber firearm) in an empty lot nearby. 

Wearing only a black undershirt, he cut through an abandoned 

house and ran to Tilton Street. Police Officer McGuire, who was 

responding to the area, was traveling westbound on Tilton Street 

when he spotted the Defendant (who matched the flash 

information) hiding between two parked cars. Once Officer 

McGuire stopped his vehicle, the Defendant darted out and 

started running in the opposite direction. Officer McGuire 

pursued on foot and was able to catch the Defendant with the 

assistance of at least three other officers and adult male 

neighbors from the block.

Mr. Rayner identified the Defendant as the male he saw carrying 

the gun down Richmond Street, and Mr. Cancel identified the 

Defendant without any hesitation at the preliminary hearing. The 

three fired cartridge casings were examined, and it was 

determined that they were fired from the same gun, that being a 

.380 which was found in the nearby alley.

Trial Court Opinion, 1/28/14, at 1-2 n.1. 

The Commonwealth initially charged Appellant with attempted murder, 

aggravated assault, persons not to possess a firearm, carrying an unlicensed 

firearm, carrying a firearm on the public streets of Philadelphia, terrorist 

threats, simple assault, and recklessly endangering another person. The 

persons not to possess a firearm charge arose because Appellant previously 

committed a first-degree robbery as a fifteen-year-old juvenile in New York. 

According to the representations of the Commonwealth in a motion to 

preclude bail, this resulted in a conviction and jail sentence, rather than an 

adjudication of delinquency. 
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Appellant entered an open guilty plea to the aggravated assault and 

person not to possess a firearm charges. The Commonwealth nolle prossed

the remaining counts. The court sentenced Appellant on May 2, 2013, to the 

aforementioned period of incarceration on the aggravated assault charge 

and ten years probation for the firearms violation. Appellant filed a timely 

motion for reconsideration of his sentence, alleging that the court sentenced 

him in excess of a mandatory minimum. The trial court denied that motion 

on July 2, 2013.

This timely appeal ensued. The trial court directed Appellant to file 

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. Appellant complied, raising three issues: (1) his plea was 

involuntary; (2) his sentence was excessive; and, (3) the court erred in 

denying his motion for reconsideration. The trial court authored its Pa.R.A.P. 

1925(a) decision. Appellant’s counsel now files a petition to withdraw and 

an accompanying Anders brief, contending that there are no non-frivolous 

issues to be reviewed.2 

As we do not address the merits of issues raised on appeal without 

first reviewing a request to withdraw, we review counsel’s petition to 

withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030 

(Pa.Super. 2013) (en banc). The procedural requirements for withdrawal 

 

2 This Court remanded for the appointment of new counsel on July 22, 2014. 

The trial court appointed current counsel on July 24, 2014.
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require counsel to: 1) petition for leave to withdraw and state that, after 

making a conscientious examination of the record, counsel has concluded 

that the appeal is frivolous; 2) provide a copy of the Anders brief to the 

defendant; and 3) inform the defendant that he has the right to retain 

private counsel or raise, pro se, additional arguments that the defendant 

deems worthy of the court’s attention. Id.

Counsel’s petition to withdraw provides that he made a conscientious 

review of the record and concluded that there are no non-frivolous issues. 

Counsel notified Appellant that he was withdrawing and furnished Appellant 

with copies of both the petition to withdraw and Anders brief. Additionally, 

counsel informed Appellant of his right to retain new counsel or proceed pro 

se to raise any issues he believes this Court should consider. Thus, counsel 

has satisfied the procedural requirements of Anders.

Counsel having complied with the procedural dictates of Anders, we 

next consider whether counsel’s Anders brief meets the substantive 

requirements of Santiago. Under Santiago, an 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. 

Santiago, supra at 361. 
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Counsel provided the factual and procedural background of this case. 

He also discusses his reasons for determining that Appellant’s appeal is 

frivolous, and provides legal authority as to why he has concluded that the 

appeal is wholly frivolous. Specifically, counsel has comprehensively 

outlined the governing law relative to guilty plea withdrawals and the 

voluntariness of a plea, as well as addressed Appellant’s sentencing claim. 

Accordingly, we proceed to the merits of this appeal and our own 

independent review of the entire record. See Anders, supra at 744 (“the 

court—not counsel—then proceeds, after a full examination of all the 

proceedings, to decide whether the case is wholly frivolous.”) (emphasis 

added); Commonwealth v. Goodwin, 928 A.2d 287, 292-293 (Pa. Super. 

2007) (en banc) (finding that Anders requires that this Court conduct an 

independent review of the record to discern if there are additional, 

nonfrivolous issues that counsel failed to address); Commonwealth v. 

Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (“We now must conduct an 

independent review of the record to determine whether the issues identified 

by Harden in this appeal are, as counsel claims, wholly frivolous, or if there 

are any other meritorious issues present in this case.”).

Counsel begins by accurately noting that a guilty plea generally waives 

all defects and defenses unrelated to jurisdiction, the legality of the 

sentence, and the validity of the plea. Commonwealth v. Main, 6 A.3d 

1026 (Pa.Super. 2010). He points out that every court of common pleas has 
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jurisdiction over matters arising out of the Pennsylvania Crimes Code. 

Anders brief at 9 (citing Commonwealth v. Bethea, 828 A.2d 1066 (Pa. 

2003)). 

Continuing, counsel discusses the law pertaining to whether a plea is 

involuntary. Counsel accurately recognizes that we consider the totality of 

the circumstances in ascertaining whether a plea was knowing, voluntary, 

and intelligent. Id. (citing Commonwealth v. Flanagan, 854 A.2d 489, 

500 (Pa. 2004)). In addition, counsel has outlined the six areas of inquiry 

under Pa.R.Crim.P. 590 and discussed each of those factors. Those factors 

include:

1) Does the defendant understand the nature of the charges to 

which he or she is pleading guilty or nolo contendere?

2) Is there a factual basis for the plea?

3) Does the defendant understand that he or she has the right to 

a trial by jury?

4) Does the defendant understand that he or she is presumed 

innocent until found guilty?

5) Is the defendant aware of the permissible ranges of sentences 

and/or fines for the offenses charged?

6) Is the defendant aware that the judge is not bound by the 

terms of any plea agreement tendered unless the judge accepts 

such agreement?

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008).

Appellant acknowledged at his plea that he was aware of the elements 

of the crimes and the district attorney fully delineated the facts supporting 
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the plea. In addition, Appellant admitted that he understood that he had the 

right to a jury trial and the court undertook an extensive colloquy on his trial 

rights. The court informed Appellant that, if he elected to have a trial, he 

was presumed innocent and that the Commonwealth bore the burden of 

establishing his guilt beyond a reasonable doubt. 

The court also queried Appellant regarding his understanding of his 

plea and explained that he was entering an open guilty plea with no 

sentencing agreement. Appellant also stated that no promises had been 

made to induce him to plead guilty. Further, the court explained the 

applicable range of sentences and fines for aggravated assault and persons 

not to possess a firearm. However, an issue has arisen as to whether the 

maximum sentence for the firearms charge was correctly set forth. 

Accordingly, we cannot yet conclusively state that Appellant’s plea was 

intelligently entered and we address the grading of his firearms offense issue 

after discussing the second claim analyzed by counsel. 

The second issue addressed by counsel pertains to the discretionary 

aspects of Appellant’s sentence. To adequately preserve a discretionary 

sentencing claim, the defendant must present the issue in either a postsentence motion, or raise the claim during the sentencing proceedings. 

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en 

banc). In the non-Anders context, the defendant must “preserve the issue 

in a court-ordered Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 
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2119(f) statement.” Id. Where counsel files an Anders brief, this Court 

has reviewed the matter even absent a separate Pa.R.A.P. 2119(f) 

statement. See Commonwealth v. Wilson, 578 A.2d 523 (Pa.Super. 

1990); see also Commonwealth v. Lilley, 978 A.2d 995 (Pa.Super. 

2009). Hence, we do not consider counsel’s failure to submit a Rule 2119(f) 

statement as precluding review of whether Appellant’s issue is frivolous. 

We add that, “[t]here is no absolute right to appeal when challenging 

the discretionary aspect of a sentence.” Cartrette, supra at 1042. “[A]n 

appeal is permitted only after this Court determines that there is a 

substantial question that the sentence was not appropriate under the 

sentencing code.” Id. When considering the merits of a discretionary 

aspects of sentencing claim, we analyze the sentencing court’s decision 

under an abuse of discretion standard. Commonwealth v. Dodge, 77 A.3d 

1263, 1274 (Pa.Super. 2013). In conducting this review, we are guided by 

the statutory requirements of 42 Pa.C.S. § 9781(c) and (d). Id. Section 

9781(c) provides that this Court shall vacate a sentence and remand under 

three circumstances: 

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines erroneously; 

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable; or 

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable. 
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42 Pa.C.S. § 9781(c). In addition, we consider: 

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Appellant’s position in his post-sentence motion was essentially that 

the aggravated assault sentence was excessive and that the court should 

have considered that his prior robbery occurred over fifteen years earlier 

when he was a juvenile. In his 1925(b) statement, Appellant baldly averred 

that his sentence was excessive. Generally, a bald excessiveness claim does 

not raise a substantial question. See Dodge, supra (collecting and 

discussing nuances of excessiveness sentencing challenges). However, an 

excessiveness claim in conjunction with an assertion that the court did not 

adequately consider a mitigating factor may present a substantial question. 

Id. 

Counsel notes that the sentencing court provided its reasons for 

sentencing Appellant, and that, because the sentence fell within the 

standard sentencing guideline range, it was not excessive. In this regard, 

the parties agreed that Appellant’s prior record score under the sentencing 
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guidelines was a two. The offense gravity score for his aggravated assault 

was an eleven. Considering the deadly weapon used enhancement, 204 Pa. 

Code § 303.10(a)(2); 204 Pa. Code 303.17(b),3 the standard guideline 

range was between five and one-half years to seven years incarceration. The 

court sentenced Appellant within the guideline range. We add that the trial 

court in this matter considered a pre-sentence report; therefore, it is 

presumed that the court adequately considered relevant mitigating and 

aggravating factors. Commonwealth v. Fowler, 893 A.2d 758, 

766 (Pa.Super. 2006).

Instantly, Appellant’s sentence is not clearly unreasonable. Appellant 

fired a gun three times at an individual at relatively close range. The court 

considered a pre-sentence report and sentenced Appellant within the 

standard sentencing guideline range where a person uses a weapon during 

the commission of his crime. Moreover, the court explained its reasons for 

its sentence on the record. Thus, we agree that Appellant’s excessive 

sentencing challenge is frivolous. For similar reasons, Appellant’s position 

that the trial court erred in denying motion for reconsideration fails. 

We add that we are aware that a mandatory minimum statute exists 

for Appellant’s aggravated assault crime since he admitted to visibly 

 

3 The sentencing guidelines applicable to Appellant were those readopted 

and amended September 6, 2008, made applicable to offenses committed 

on or after December 5, 2008. See 38 Pa.B. 4971; 204 Pa. Code § 303.1 

et. seq. The deadly weapon used enhancement matrix under the former 

guidelines was found under 204 Pa. Code § 303.18. 
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possessing a firearm during its commission. 42 Pa.C.S. § 9712. Based on 

decisions from this Court, imposing such a mandatory is illegal. See

Commonwealth v. Ferguson, 2015 PA Super 1; cf. Commonwealth v. 

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc). However, the 

sentencing court exceeded the mandatory minimum sentence when it 

applied the standard guideline range sentence where a deadly weapon was 

used. Hence, the court did not sentence the defendant based on the 

mandatory statute, and his sentence is not illegal on that ground. 

Nonetheless, as mentioned above, our independent review of the 

record has revealed a potential non-frivolous issue that relates to the legality 

of Appellant’s persons not to possess a firearm sentence. At Appellant’s 

guilty plea hearing the Commonwealth outlined the grounds for Appellant’s 

person not to possess a firearm offense as follows.

In this case, we’re talking about the .380 caliber firearm on the 

date of this incident, and also that you had a prior felony 

conviction—and I’m talking about the robbery—that makes you 

ineligible to possess a firearm. And even if it was a juvenile 

adjudication, even if it was a juvenile case, because it was a 

felony of the first degree, that robbery, that means you can 

never have a gun again. So by having a gun when you had the 

juvenile case for the F1 robbery, that would be why we would be 

able to prove you guilty of the 6105.

N.T., 3/4/13, at 18.

At this point, Appellant indicated he was confused because, according 

to his attorney, that robbery offense had been expunged. The court 

provided that, as far as it knew, Appellant had a felony conviction. A 
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discussion was then held off the record between the prosecutor and counsel, 

followed by an off the record discussion between Appellant and his lawyer. 

Here, the record also contains a Commonwealth motion that indicates 

that Appellant served jail time for the New York robbery, which would 

suggest he was convicted as an adult despite having been a juvenile. 

However, the guilty plea transcript is ambiguous as to whether Appellant 

was adjudicated delinquent of the New York felony robbery or convicted of 

that offense.4 Pursuant to Hale, supra, an adjudication would reduce the 

grading of Appellant’s offense and could result in his ten year probationary 

sentence being illegal. Accordingly, we direct counsel to file either a merits 

brief or a clarifying supplemental Anders brief with respect to this issue and 

any issue related thereto within forty-five days of the filing of this decision. 

The Commonwealth shall have thirty days from that filing to respond. 

Case remanded. Jurisdiction retained. 

 

4 The certified record does not contain the confidential pre-sentence report 

considered by the trial court. Hence, we cannot glean from that document 

whether Appellant was convicted or adjudicated delinquent for the New York 

robbery. However, we do note that the parties agreed that Appellant’s prior 

record score was a two, and a first-degree felony robbery adjudication or 

conviction is considered a four-point offense. 204 Pa. Code 303.7; 204 

Pa.Code 303.15. Four-point juvenile offenses lapse if committed before the 

individual’s fourteenth birthday. 204 Pa. Code 303.6. The lapse of the 

offense for purposes of the sentencing guidelines would not remove that 

charge from consideration with respect to the persons not to possess a 

firearm statute. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/2015