Com. v. Green, R.

• Court: Superior Court of Pennsylvania
• Decided: May 30, 2025
• Docket: 1437 MDA 2024
• Status: Unpublished

Opinion

J-A11024-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHAAD HAKIEM GREEN : : Appellant : No. 1437 MDA 2024

Appeal from the Judgment of Sentence Entered September 12, 2024 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000304-2024

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHAAD HAKIEM GREEN : : Appellant : No. 1438 MDA 2024

Appeal from the Judgment of Sentence Entered September 12, 2024 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000306-2024

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHAAD HAKIEM GREEN : : Appellant : No. 1439 MDA 2024

Appeal from the Judgment of Sentence Entered September 12, 2024 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000312-2024 J-A11024-25

BEFORE: MURRAY, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED: MAY 30, 2025

Appellant, Rashaad Hakiem Green, appeals from the judgment of

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

his guilty pleas to two counts of theft by unlawful taking, and one count of

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

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

On June 20, 2024, Appellant entered three open guilty pleas. At Docket No.

304-2024, he pled guilty to one count of theft by unlawful taking. At Docket

No. 306-2024, he pled guilty to one count of conspiracy to commit robbery of

a motor vehicle. At Docket No. 312-2024, he pled guilty to one count of theft

by unlawful taking.

On September 12, 2024, with the benefit of a pre-sentence investigation

(“PSI”) report, the court sentenced Appellant to an aggregate term of 60 to

120 months of incarceration. At each docket number, the court imposed a

standard-range sentence but ordered that all sentences be served

consecutively. On September 20, 2024, Appellant filed a timely post-sentence

motion challenging the discretionary aspects of his sentence. On September

23, 2024, the court denied Appellant’s motion.

On September 30, 2024, Appellant timely filed separate notices of

appeal at each docket. That same day, the court ordered him to file Pa.R.A.P. ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3921 and 903, respectively.

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1925(b) statements of errors complained of on appeal. On October 10, 2024,

Appellant timely complied.

On December 30, 2024, counsel filed an Anders2 brief and application

to withdraw in this Court. On January 14, 2025, the Commonwealth filed a

motion to consolidate the appeals, which this Court granted on January 30,

2025.

Preliminarily, appellate counsel seeks to withdraw representation

pursuant to Anders 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. See Santiago, supra at 173-

79, 978 A.2d at 358-61. “Substantial compliance with these requirements is

sufficient.” Commonwealth v. Reid, 117 A.3d 777, 781 (Pa.Super. 2015).

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

____________________________________________

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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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 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 178-179, 978 A.2d at 361.

Instantly, appellate counsel has filed an application to withdraw. The

application states that counsel has reviewed the record and determined that

there are no non-frivolous grounds for appeal. Counsel sent a copy of the

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Anders brief to Appellant. Counsel also provided Appellant with a letter

explaining Appellant’s right to retain new counsel or proceed pro se to raise

any additional points Appellant deems worthy of this Court’s attention.3

In the Anders brief, counsel summarized the facts and procedural

history of Appellant’s case. The argument section of the brief cites to portions

of the record that might arguably support Appellant’s claims on appeal.

Counsel also provides the reasons for his conclusion that the appeal is wholly

frivolous. Therefore, counsel has substantially complied with the technical

requirements of Anders and Santiago. See Reid, supra.

Counsel raises the following issue on Appellant’s behalf:

Whether the sentencing court abused its discretion in sentencing [Appellant] to consecutive sentences at the high end of the standard range without stating aggravating factors nor stating the mitigating factors addressed at the sentencing hearing, in the [PSI report], and post-sentence motion.

(Anders Brief at 3).

On appeal, Appellant challenges the discretionary aspects of his

sentence, contending that the imposition of consecutive sentences was

manifestly excessive and an abuse of the court’s discretion. “[C]hallenges to

the discretionary aspects of sentencing do not entitle an appellant to an appeal

as of right.” Commonwealth v. Perzel, 291 A.3d 38, 46 (Pa.Super. 2023),

appeal denied, ___ Pa. ___, 301 A.3d 426 (2023). Prior to reaching the merits

of a discretionary sentencing issue: ____________________________________________

3 Appellant has not responded pro se or with privately-retained counsel.

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[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).

“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.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)

(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.

2011)).

Bald claims of excessiveness based upon the imposition of consecutive

sentences do not raise substantial questions for our review. Caldwell, supra

at 769. Rather, the decision to impose consecutive rather than concurrent

sentences lies within the sound discretion of the trial court, and does not raise

a substantial question unless the sentence is so “manifestly excessive in

extreme circumstances that it may create a substantial question.”

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

denied, 632 Pa. 671, 117 A.3d 297 (2015) (citation omitted). In such cases,

we have focused on “whether the decision to sentence consecutively raises

the aggregate sentence to, what appears upon its face to be, an excessive

level in light of the criminal conduct in this case.” Id. at 133-34.

On the other hand, “an excessive sentence claim—in conjunction with

an assertion that the court failed to consider mitigating factors—raises a

substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa.Super. 2014), appeal denied, 629 Pa. 636, 105 A.3d 736 (2014). See

also Commonwealth v. Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding

defendant’s claim that court failed to consider factors set forth under Section

9721(b) and focused solely on seriousness of defendant’s offense raised

substantial question).

Here, Appellant timely filed a post-sentence motion and notice of appeal

and preserved his sentencing issue in his Rule 1925(b) statement and

Pa.R.A.P. 2119(f) statement. While Appellant’s challenge to the imposition of

consecutive sentences, alone, would not constitute a substantial question,

Appellant also argues that the trial court failed to adequately consider

mitigating factors contained within the PSI report, including the fact that

Appellant’s mother was incarcerated, his father was killed when he was only

five years old, that he had been abused in foster care, and that he suffered

from mental health conditions and substance abuse disorder. Therefore, to

the extent that Appellant claims his sentence is excessive, in conjunction with

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his assertion that the court failed to properly consider various mitigating

factors, he has arguably raised a substantial question for our review. See

Raven, supra.

This Court reviews discretionary sentencing challenges based on the

following standard:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).

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). Additionally, “a court is

required to consider the particular circumstances of the offense and the

character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10

(Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984, 162 L.Ed.2d

902 (2005). “In particular, the court should refer to the defendant’s prior

criminal record, his age, personal characteristics and his potential for

rehabilitation.” Id.

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... Where the sentencing court had the benefit of a [PSI report], we can assume the sentencing court “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, 101-02, 546 A.2d 12, 18 (1988). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court has benefit of PSI, law expects court was aware of relevant information regarding defendant’s character and weighed those considerations along with any mitigating factors).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010). Further:

[W]e note the “imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court.” [Zirkle, supra at 113]. It is well- accepted “in imposing a sentence, the trial [court] may determine whether, given the facts of a particular case, a sentence should run consecutive to or concurrent with another sentence being imposed.” Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa.Super. 2003).

Commonwealth v. Taylor, 277 A.3d 577, 593 (Pa.Super. 2022).

Instantly, the trial court stated at sentencing that it had reviewed the

sentencing guidelines, the PSI report, letters from the victims, and considered

Appellant’s acceptance of responsibility by entering guilty pleas. (See N.T.

Sentencing, 9/12/24, at 19-25). The court specifically noted Appellant’s

“rough start” and the court’s intent to impose a sentence that reflected the

serious nature of the offenses, but with the opportunity for Appellant to be

released on parole as a young man. (See id. at 20-21). Accordingly, the

court imposed consecutive sentences in the higher end of the standard

guideline range. (Id. at 23-25).

The trial court further explained in its opinion:

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In this case, the court read the [PSI report] prior to sentencing. The court heard from one of the victims in open court. In his statement, the victim believed that the defendant had a gun. His grandchildren were present at the time of the incident. Additionally, the victim stated that this incident would have lasting effects as the “harm caused was indelible and I think that harm will be lasting.” A second victim submitted a statement that was read aloud in court. The victim stated that they now live in fear with constant anxiety. The court also heard the argument of the Commonwealth which noted the close proximity of the offenses to the victims’ homes, families, and their personal property, as well as the threat to the community at large. All three offenses happened within days of each other. The court heard the arguments of defense counsel as well, which pointed the court to [Appellant’s] willingness to plead guilty and take responsibility for the crimes. Defense counsel outlined [Appellant’s] juvenile history as well as his time in foster care. Finally, this court heard from [Appellant]. [Appellant] gave a brief statement wherein he took responsibility for the offenses and apologized to the victims. This court acknowledged [Appellant’s] statements as well as all arguments of counsel, the statements of the victims, as well as the [PSI report] and [Appellant’s] prior record score of three, and imposed the above standard guideline range sentence and allowed [Appellant] to have credit for all time served.

As such, and in light of the above stated case law, the sentencing guidelines, the well-reasoned arguments of counsel, the victims and [Appellant’s] statements, the court did not err in sentencing the defendant at the higher end of the standard guideline range.

(Trial Court Opinion, 11/1/24, at 4-6) (citations omitted).

The record reflects that the court had the benefit of a PSI report and

considered the mitigating factors therein. Thus, the record belies Appellant’s

claim that the court failed to adequately consider mitigating factors in the

record. See Moury, supra; Tirado, supra. Further, the court did not err or

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abuse its discretion when it imposed consecutive sentences in this case, where

it noted the seriousness of the offenses and their close proximity to the

victims’ homes as well as the threat to the community at large. See Taylor,

supra; Zirkle, supra. On this record, we see no reason to disrupt the court’s

broad sentencing discretion. See McNabb, supra. Further, our independent

review of the record does not reveal any additional, non-frivolous issues. See

Dempster, supra; Palm, supra. Accordingly, we affirm and grant counsel’s

petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw is granted.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/30/2025

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