J-S58045-15

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*Retired Senior Judge 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

JOE DAVID BARCLAY

Appellant No. 761 MDA 2015

Appeal from the Judgment of Sentence March 5, 2015

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0000550-2014

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 16, 2015

Appellant, Joe David Barclay, appeals from the judgment of sentence 

entered in the Franklin County Court of Common pleas, following his open 

guilty plea to possession of child pornography and criminal use of 

communication facility.1 We affirm and grant counsel’s petition to withdraw. 

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

Between December 10, 2013 and March 6, 2014, Appellant used a computer 

to access videos of minors performing sex acts. On November 3, 2014, 

Appellant pled guilty to seven (7) counts of possession of child pornography 

and one (1) count of criminal use of communication facility. The court 

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1 18 Pa.C.S.A. §§ 6312(d), 7512(a). 
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sentenced Appellant on March 5, 2015, to concurrent terms of thirty (30) to 

eighty-four (84) months’ incarceration for each count of possession of child 

pornography. The court imposed a consecutive term of twelve (12) to 

eighty-four (84) months’ incarceration for the criminal use of communication 

facility conviction. Thus, Appellant received an aggregate sentence of fortytwo (42) to one hundred sixty-eight (168) months’ incarceration. On March 

10, 2015, Appellant filed a timely post-sentence motion, which the court 

denied on April 9, 2015. Appellant filed a timely notice of appeal on April 

30, 2015. On that same date, the court ordered Appellant to file a concise 

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

Appellant filed a Rule 1925(b) statement on June 8, 2015.2 On July 15, 

2015, counsel filed with this Court a petition to withdraw representation. On 

August 6, 2015, Appellant filed a pro se response to counsel’s request to 

withdraw. 

As a preliminary matter, appellate counsel seeks to withdraw her 

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

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2 Appellant’s Rule 1925(b) statement was untimely. Nevertheless, this Court 

may address the merits of a criminal appeal where a defendant files an 

untimely Rule 1925(b) statement, if the trial court had adequate opportunity 

and chose to prepare an opinion addressing the issue(s) raised on appeal. 

See Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en banc). 

Here, the trial court filed a Rule 1925(a) opinion that addresses the sole 

issue raised on appeal. Moreover, counsel seeks to withdraw representation, 

so she had only to file a Rule 1925(c)(4) statement of intent to file an 

Anders brief, which would make a trial court opinion discretionary. See 

Commonwealth v. McBride, 957 A.2d 752 (Pa.Super. 2008). 
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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, 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 the antecedent 

requirements have been met, this Court must then make an independent 

evaluation of the record to determine whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 

(Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[3]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 

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3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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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 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, counsel’s petition to withdraw states that counsel reviewed 

the facts, relevant law, and potential issues for appeal, and determined the 

appeal is wholly frivolous. Counsel notified Appellant of counsel’s request to 

withdraw. Counsel also supplied Appellant with a copy of the Anders brief 

and a letter explaining Appellant’s right to retain new counsel or to proceed 

pro se to raise any additional issues Appellant believes this Court should 

consider. In the Anders brief, counsel provides a summary of the facts and 

procedural history of this case. Counsel’s argument section refers to 

relevant law that might arguably support Appellant’s discretionary aspects of 

sentencing claims raised on appeal. Counsel further states the reasons for 
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her conclusion that the appeal is wholly frivolous. Therefore, counsel has 

substantially complied with the requirements of Anders and Santiago. 

We proceed to review the sentencing issue raised in the Anders brief:

WHETHER THE SENTENCING COURT ERRED AS A MATTER 

OF LAW WHEN IT DENIED [APPELLANT’S] POST-SENTENCE 

MOTION TO MODIFY SENTENCE?

(Anders Brief at 4).4

In his single issue, Appellant argues the court failed to articulate on 

the record its reasons for the sentence imposed. Appellant asserts the court 

neglected to take into account Appellant’s lengthy allocution, counsel’s 

arguments, Appellant’s rehabilitative needs, and various mitigating factors. 

Appellant contends the court abused its discretion when it imposed 

consecutive sentences, which resulted in a maximum aggregate term that is 

excessive and might effectively constitute a life sentence. Appellant 

concludes this Court should vacate his judgment of sentence and remand for 

resentencing. As presented, Appellant challenges the discretionary aspects 

of his sentence. See Commonwealth v. Dunphy, 20 A.3d 1215 

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4

In Appellant’s pro se response to counsel’s petition to withdraw, Appellant 

reiterates the claim that his sentence is excessive. Appellant also asserts 

that counsel provided inadequate representation and should not have 

advised Appellant to take a plea. Appellant, however, fails to expand on this 

argument or to cite any relevant law. Moreover, this Court cannot review 

Appellant’s challenge to counsel’s effectiveness on direct appeal. See 

Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013) (stating 

ineffective assistance of counsel claims generally are to be deferred to 

collateral review). 
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(Pa.Super. 2011) (stating claim that sentencing court failed to offer 

adequate reasons to support sentence challenges discretionary aspects of 

sentencing); Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 

(Pa.Super. 2010) (explaining challenge to imposition of consecutive 

sentences implicates discretionary aspects of sentencing); Commonwealth 

v. Lutes, 793 A.2d 949 (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) (stating claim that sentencing 

court failed to consider or did not adequately consider certain factors 

challenges discretionary aspects of sentencing). 

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 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). 
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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 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 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 912-13 (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 that a 

sentence is manifestly excessive might raise a substantial question if the 

appellant’s Rule 2119(f) statement sufficiently articulates the manner in 

which the sentence imposed violates a specific provision of the Sentencing 

Code or the norms underlying the sentencing process. Mouzon, supra at 

435, 812 A.2d at 627. Generally, “[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.” CruzCenteno, supra at 545. A challenge to the trial court’s exercise of 
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discretion in imposing sentences consecutively also generally fails to raise a 

substantial question. Commonwealth v. Pass, 914 A.2d 442, 446 

(Pa.Super. 2006). Nevertheless, “[a]n allegation that a judge ‘failed to offer 

specific reasons for [a] sentence does raise a substantial question.’” 

Dunphy, supra at 1222 (quoting Commonwealth v. Reynolds, 835 A.2d 

720, 734 (Pa.Super. 2003)). 

“In every case in which the court imposes a sentence for a felony or 

misdemeanor...the court shall make as a part of the record, and disclose in 

open court at the time of sentencing, a statement of the reason or reasons 

for the sentence imposed.” 42 Pa.C.S.A. § 9721(b). “Nevertheless, a 

lengthy discourse on the trial court’s sentencing philosophy is not required. 

Rather, the record as a whole must reflect the court’s reasons and its 

meaningful consideration of the facts of the crime and the character of the 

offender.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super. 

2006). See also Commonwealth v. Brown, 741 A.2d 726 (Pa.Super. 

1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001) (stating 

court meets requirement that it state on record reasons for sentence 

imposed if court states that it has consulted presentence investigation 

(“PSI”) report). 

Instantly, Appellant preserved his discretionary aspects of sentencing 

claims in a timely filed post-sentence motion. Nevertheless, Appellant fails 

to raise a substantial question with respect to his claims regarding the 
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excessiveness of his sentence, the court’s decision to run counts 

consecutively, and the court’s alleged failure to consider certain mitigating 

factors. See Mouzon, supra; Pass, supra; Cruz-Centeno, supra. 

Moreover, the court reasoned as follows in its Rule 1925(a) opinion:

Here, this [c]ourt carefully considered all relevant 

sentencing factors, pursuant to 42 Pa.C.S.[A.] § 9721(b). 

As a result, this [c]ourt imposed a standard range 

sentence. First, this [c]ourt wholly disagrees with 

[Appellant’s] claim that he has not been demonstrated to 

be a danger to the public. [Appellant] was convicted of 

seven counts of possessing child pornography. The 

Pennsylvania Supreme Court has clearly stated that even 

the mere possession and downloading of child pornography 

is harmful to children as “each image of child pornography 

creates a permanent record of a child’s abuse, which 

results in continuing exploitation of a child when the image

is subsequently viewed.” Com[monwealth] v. Baker, 24 

A.3d 1006, 1036 [Pa.Super. 2011]. Indeed, “[t]he 

purpose of Section 6312 is plainly to protect children, end 

the abuse and exploitation of children, and eradicate the 

production and supply of child pornography.” Id. This 

[c]ourt noted that [Appellant] had a prior record score of 

5. This [c]ourt considered that [Appellant] was remorseful 

at sentencing and he stated that he would seek treatment 

along with the fact that [Appellant] has a criminal history. 

While [Appellant’s] criminal history does not include 

offenses that are similar to the instant offense, he does 

have a somewhat lengthy criminal history, a majority of 

which dates back as far as to the 1980’s. Therefore, this 

[c]ourt decided to run the seven counts of Possession of 

Child Pornography concurrently. The [c]ourt imposed a 

sentence on Criminal Use of a Communication Facility that 

ran consecutively to the Possession of Child Pornography 

counts. Thus, this [c]ourt considered factors one (the 

protection of the public) and two (the gravity of the 

offense as it relates to the victim and on the community) 

when imposing [Appellant’s] sentence. 

As to rehabilitation, [Appellant] is correct that this [c]ourt 

did not specifically mention the rehabilitation factor at 
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sentencing[,] however[,] this court did consider 

[Appellant’s] rehabilitation when imposing sentence. ... 

When imposing sentence, this [c]ourt considered the fact 

that [Appellant] observed/possessed child pornography on 

at least seven different occasions over the course of four 

months. This [court] found that a fourteen year aggregate 

maximum sentence was necessary in order to attempt to 

rehabilitate [Appellant] so he does not continue to aid an 

online industry that revolves around the exploitation of 

children. 

Appellant cites [Commonwealth v. Coulverson, 34 A.3d 

135 (Pa.Super. 2011),] for the proposition that “[a] 

sentence may still be excessive regardless of the 

commencement of terms of imprisonment in the standard 

guidelines range if the upper end of the sentence imposes 

a term unlikely to end during the defendant’s natural life 

span or...perpetually subject to the discretion of the Board 

of Probation and Parole.” [Id. at 148.] This [c]ourt finds 

that Coulverson is distinguishable from [Appellant’s] 

case. The Coulverson [C]ourt noted that the trial court 

mainly took into account the crime’s impact on the victims 

and the severity of the crime when imposing sentence. 

Id. at 149-50. The trial court did not consider 

“dysfunction” in Coulverson’s own life, his remorse, his 

cooperation, his attempts at becoming a productive 

member of society, and the possibility that he may 

succeed at rehabilitation after serving a substantial term of 

18 years of incarceration. Id. at 150. On the other hand, 

this [c]ourt in the instant matter considered all [Section] 

9721(b) factors when it imposed sentence. In addition, 

Coulverson was sentenced to a hefty 90 year period of 

confinement (80 years if legally sentenced) despite the 

tragedy in Coulverson’s life. Id. at 148. However, here, 

[Appellant] was merely sentenced to a maximum of 14 

years of incarceration. 

(Trial Court Opinion, filed June 4, 2015, at 6-8). The record shows the court 

appropriately considered all relevant sentencing factors, and belies 

Appellant’s claim that the court imposed an excessive aggregate sentence. 
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Additionally, the court had the benefit of a PSI report. See 

Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super 2005) (stating where 

sentencing court had benefit of PSI, law presumes court was aware of and 

weighed relevant information regarding defendant’s character and mitigating 

factors); Cruz-Centeno, supra (explaining that, absent more, standard 

range sentence cannot be considered excessive or unreasonable where court

had benefit of PSI). 

Appellant’s allegation that the court failed to state on the record its 

reasons for the sentence does present a substantial question. See Dunphy, 

supra. Nevertheless, at sentencing, the court explicitly stated that it took 

into account the PSI report, which included various affidavits and Appellant’s 

criminal history. The court also stated it considered Appellant’s age and the 

nature of his offenses, and reviewed the Sentencing Guidelines before it 

imposed standard range sentences for each of Appellant’s convictions. 

Accordingly, the court adequately stated its reasons for the sentence at the 

time of imposition. See Brown, supra; Malovich, supra. Following our 

independent examination of the record, we affirm and grant counsel’s

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

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2015