Com. v. Johnson, L.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

LORENZO DEANGILO JOHNSON :

:

Appellant : No. 38 WDA 2026

Appeal from the Judgment of Sentence Entered April 15, 2025 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0000276-2025

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

LORENZO DEANGILO JOHNSON :

:

Appellant : No. 39 WDA 2026

Appeal from the Judgment of Sentence Entered April 15, 2025 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0002667-2023

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY STABILE, J.: FILED: August 31, 2026 In these consolidated appeals, Appellant, Lorenzo DeAngilo Johnson, appeals from his judgment of sentence of 63-126 months’ imprisonment for firearms offenses. Counsel for Appellant has filed an application to withdraw as counsel and a brief pursuant to Anders v. California, 268 U.S. 738

(1967). Although we conclude that the issues identified in the Anders brief

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* Former Justice specially assigned to the Superior Court.

are frivolous, our independent review of the record discloses another potentially non-frivolous issue. Specifically, the record raises the question whether the trial court based its sentence, at least in part, on Appellant’s decision to proceed to a jury trial instead of pleading guilty. Accordingly, we deny counsel’s application to withdraw and direct him to file either an advocate’s brief or supplemental Anders brief on this issue and any other meritorious issue that his review of the case may reveal.

Appellant was charged with various offenses arising from a traffic stop on January 19, 2023. Prior to trial, the court denied Appellant’s motion to suppress and granted his motion to sever the charge of persons not to possess firearms1 from the other charges. On January 15, 2025, a jury found Appellant guilty of carrying firearms without a license,2 and the court found Appellant guilty of persons not to possess firearms.

The trial court summarized the factual and procedural history of this case as follows:

This matter arises out of [Appellant]’s arrest following a traffic stop on January 19, 2023 during which a firearm was located in a vehicle being operated by [Appellant]. [Appellant] filed a Motion to Suppress alleging that the search of the vehicle was illegal. At the suppression hearing of November 7, 2023, the Commonwealth presented the testimony of Officer Ryan Johnston of the Duquesne Police Department, who testified that on January 19, 2023, he was patrolling with his partner in the 800 Block of Duquesne Boulevard, which he described as a high crime area, in an

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1 18 Pa.C.S.A. § 6105.

2 18 Pa.C.S.A. § 6106.

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unmarked vehicle at approximately 12:27 a.m. He observed a black Jeep SUV that passed in front of his location and the front passenger window was so dark that he could only see silhouette of the front seat passenger and believed that the window tinting was illegal. As he pulled behind the vehicle, he ran the registration of the vehicle, which showed that the registration expired in October of 2022 and that it was registered to Sdyyha Featherstone’s mother. At that time, he initiated a traffic stop by activating his lights, but the vehicle proceeded for approximately an additional 500 feet. Officer Johnston testified the delay of a vehicle stopping is often indicative of occupants concealing weapons, narcotics or other indicators of criminal activity. Upon stopping the vehicle he also observed that the rear bumper was being held by a bungee cord. At that time he and his partner, Sgt.

Vroman, approached the driver, whom he identified as [Appellant]. The front seat passenger was identified as Sdyyha Featherstone.

Officer Johnston advised [Appellant] of the reason for the stop and requested his license and registration. [Appellant] provided his driver’s license but said the vehicle was not his. Officer Johnston provided [Appellant]’s information to dispatch and was informed that [Appellant] was facing prosecution for felony drug charges.

He also noted that [Appellant] seemed to be breathing at a high rate and appeared nervous. During that time, Sgt. Vroman was talking with Featherstone, who was searching for the registration and the license.

Officer Johnston asked [Appellant] to step out of the vehicle and asked him for permission to pat him down, which he granted, and he felt a cell phone in each of his pockets. [Appellant] indicated that he only had two cell phones but had placed a third cell phone on the center console before exiting the vehicle. During this time the passenger was looking for the insurance information, which was never produced. He asked Featherstone if there were any weapons in the vehicle, and she responded saying “there better not be.” Officer Johnston also asked if there was a large amount of currency in the vehicle and she said no. When asked if there were any narcotics in the car, she looked around and then answered no. He asked if he could search the vehicle and she said no and he advised her that he believed that he had reasonable suspicion of criminal activity and was requesting a K-9 to sniff the vehicle.

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Ms. Featherstone was requested to step out of the vehicle, and she told Officer Johnston that she had a knife in the bottom of her purse which also had an open bottle of alcohol. When the officers [Appellant] and Featherstone were at the back of the vehicle, it started to rain and the driver’s door window was down. As Officer Johnston was going to close the window, Featherstone indicated she wanted the window rolled up, and when he opened the door to roll up the window, and while he was outside the vehicle, he observed a tan handgun under the driver’s seat. Upon seeing the gun, [Appellant] and Featherstone were detained and since neither claimed ownership they both were advised of their rights and placed under arrest. When [Appellant] was searched incident to the arrest, he was found in possession of a tan handgun magazine matching the color and caliber of the handgun.

Featherstone was then asked if she would give consent to search the vehicle, and after calling her mother, who was the registered owner of the vehicle, she gave consent to search the vehicle. After she gave consent to the search, the gun was retrieved from the car. The handgun also had a “block switch” on the rear plate that turns the gun into an automatic handgun. The K-9 alerted at the front passenger door of the vehicle. The Commonwealth also called Sergeant Patrick Vroman, who testified that during the traffic stop he approached the passenger’s side and confirmed that when it began to rain, Officer Johnston went to the vehicle to roll the windows up to protect the car from damage, and that Featherstone stated that she was going to ask the officers to do that. Based on the foregoing testimony, the Motion to Suppress was denied. [Appellant] proceeded to trial and was found guilty as set forth above. A Presentence Report was then ordered.

At the sentencing hearing on April 15, 2025, counsel stated that there were no corrections or additions to the Presentence Report.

[Appellant] presented the testimony of his grandmother and a representative of Justice Related Services, who testified that JRS was recommending [Appellant] reside in the community and engage in mental health outpatient treatment. [Appellant] also presented the testimony of the re-entry service coordinator of the Allegheny County Jail, who testified regarding the programs that [Appellant] completed while in the jail; that he had employment in place if released; and, that he was part of a peer support program while in the jail. Counsel also offered letters of support from jail guards and others that were made part of the record. In his statement, [Appellant] testified that while he had a “bad

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reputation with the Court when it comes to criminal activity,” he was now a better person than what was seen in his record. He testified that based on his treatment and therapy, he was better able to manage his impulsiveness and act appropriately outside of jail.

The Commonwealth’s position was that the Glock firearm that [Appellant] was found guilty of possessing was modified with a selector switch so that it only fired as an automatic weapon and was no longer capable of firing as only a semi-automatic, and that it was not a typical firearm but a “machine gun” which was the basis for the prohibited weapons charge. Further, [the Commonwealth argued] that [Appellant] “has been given his chances, and his second chance and his third chance with multiple firearm convictions in the past, showing that when he is out on the street, he is carrying firearms.” It was further noted that he has been known to carry weapons that are “very dangerous to the community” and that based on the firearm he possessed and the surrounding circumstances, the Commonwealth was requesting standard range consecutive sentences of 3 ½ to 7 years, 1 to 2 years and 2 to 4 years.

This Court then reviewed [Appellant]’s criminal history as set forth in the Presentence Report including charges in 2018 for carrying a firearm without a license and possession of heroin; in 2019 for person not to possess a firearm; in 2020 for possession of synthetic cannabis; and, in November of 2023 for possession of a controlled substance and flight to avoid apprehension.

[Appellant]’s history during supervision while on probation from September of 2019 to January of 2023 was also reviewed on the record. It was also stated, that as the Commonwealth argued, that “you had what was the equivalent of a machine gun, which you were carrying at this time. And your prior record it just - it goes on, you know to hear people say that they think you’ve learned something, I don’t buy it.”

Trial Court Opinion, 4/28/26, at 2-6 (citations omitted; cleaned up).

On April 15, 2025, the court sentenced Appellant to 21-42 months’

imprisonment for persons not to possess firearms and a consecutive term of 41-82 months’ imprisonment for carrying firearms without a license.

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On April 23, 2025, Appellant’s trial attorney moved for leave to withdraw as counsel. On April 24, 2025, the court granted the motion. On or about May 12, 2025, new counsel, attorney Thomassey, filed a motion to reconsider sentence nunc pro tunc. On May 15, 2025, the court denied this motion. On July 21, 2025, Appellant filed a pro se Post Conviction Relief Act (“PCRA”) petition. On July 24, 2025, the court appointed attorney Charles Pass III as PCRA counsel. On October 23, 2025, attorney Pass filed an amended PCRA petition that sought to reinstate post-conviction and direct appeal rights. On November 24, 2025, the Commonwealth filed an answer indicating that it did not oppose reinstatement of appellant’s post-sentence and appellate rights. On December 22, 2025, the court entered an order reinstating appellant’s post-sentence and appellate rights. On December 30, 2025, attorney Pass filed post-sentence motions on Appellant’s behalf. On January 6, 2026, the court denied all post-sentence motions. These timely appeals followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

In this Court, on May 4, 2026, attorney Pass filed an Anders brief and an application for leave to withdraw as counsel. On June 30, 2026, Appellant filed a pro se response to the Anders brief in which he contended that the trial court erred by denying his motion to suppress. The pro se response did not include any argument relating to Appellant’s sentence.

We begin by examining attorney Pass’s application for leave to withdraw. “When faced with a purported Anders brief, this Court may not

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review the merits of any possible underlying issues without first examining counsel’s request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007). To withdraw pursuant to Anders, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has 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 defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court’s attention.

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). The Anders brief must comply with the following requirements:

(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “This Court first considers the issues raised by counsel in the Anders brief and determines whether they are in fact frivolous.” Commonwealth v. Weitzel, 304 A.3d 1219, 1224 (Pa. Super. 2023) (citing Commonwealth v. Yorgey, 188 A.3d 1190, 1196-1197 (Pa. Super. 2018) (en banc)). “[I]f the Court finds all of

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those issues frivolous, this Court conducts a review of the record to ascertain if, on its face, there are other issues of arguable merit overlooked by counsel.” Id. An appeal is frivolous if it “lacks any basis in law or fact.” Commonwealth v. Santiago, 978 A.2d 349, 356 (Pa. 2009).

The Anders brief fully complies with the requirements set forth in Santiago. The brief includes a procedural and factual summary with citations to the record, identifies the issues that Appellant wishes to raise, and explains why the issues are frivolous. The brief also includes the trial court’s opinion. The application to withdraw includes counsel’s letter advising Appellant of his rights in accordance with Millisock. Both the Anders brief and application to withdraw contain proof of service on Appellant. Accordingly, we turn to the claims identified in the Anders brief.

The Anders brief identifies two issues:

1. Whether the Court of Common Pleas erred in denying [Appellant]’s Motion to Suppress Physical Evidence where warrantless intrusion into the vehicle prior to discovering the firearm was unreasonable and in violation of his rights under Article 1, Section 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the United States Constitution?

2. Whether the Court of Common Pleas abused its discretion and acted inconsistent with the fundamental norms of the sentencing process by focusing on the seriousness of the offense to the exclusion of the other factors under 42 Pa.C.S.[A.] §§ 9721(b)

and 9725 and—while ordering mental health and drug and alcohol evaluation and treatment during incarceration—did not (adequately) state reasons on the record for the need for such a lengthy sentence to protect the public and why a lesser sentence of incarceration would depreciate the seriousness of [Appellant]’s crime?

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Anders Brief at 4.

The first issue concerns whether the trial court erred by denying Appellant’s motion to suppress. Our standard of review when addressing a challenge to the denial of a suppression motion is

limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court’s factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (internal citations omitted). Our scope of review is limited to the record created during the suppression hearing. In re L.J., supra.

Neither the Anders brief nor Appellant’s pro se response to the Anders brief contends that the initial traffic stop for the improper window tint was unconstitutional. The Anders brief asserts that the warrantless seizure of the handgun under the driver’s seat was valid both under the plain view doctrine and because the owner of the vehicle consented to the search of the passenger compartment. Appellant argues in his pro se response that (1) Officer Johnston had no authority to ask Appellant to exit the vehicle, (2) the plain view doctrine does not apply, because Officer Johnston did not view the handgun from a lawful vantage point, and (3) there was no consent to search the vehicle. We agree with the Anders brief that these issues are frivolous.

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We first address Appellant’s claim that Officer Johnston lacked the authority to direct Appellant to exit the vehicle. “Both the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures.” Commonwealth v. Cook, 735 A.2d 673, 675 (Pa. 1999). “Not every encounter between a law enforcement officer and a citizen constitutes a seizure warranting constitutional protections.” Commonwealth v. Adams, 205 A.3d 1195, 1199 (Pa. 2019). “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. There are three types of interactions between the police and private citizens: mere encounter, investigative detention, and arrest. Commonwealth v. Hicks, 208 A.3d 916, 927 (Pa. 2019). A mere encounter “does not constitute a seizure ... and requires no particular suspicion of criminality[.]” Id. An investigative detention, on the other hand, “constitutes a seizure of a person, and to be constitutionally valid police must have a reasonable suspicion that criminal activity is afoot.” Adams, 205 A.3d at 1200. An arrest is also, of course, a seizure, “and must be supported by probable cause.” Id.

A forcible stop of a motor vehicle by the police constitutes a second-

level seizure, or “investigative detention,” triggering the constitutional protections of the Fourth Amendment. Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006). Reasonable suspicion justifying an

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investigative detention must be “based upon specific and articulable facts ... that criminality is afoot.” Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000). The police must have “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). This is not a particularly demanding standard. “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Kansas v. Glover, 589 U.S. 376, 380 (2020). “The reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy[.]” Id. at 381. The assessment of whether reasonable suspicion exists “requires an evaluation of the totality of the circumstances[.]” Zhahir, 751 A.2d at 1156. This totality is based on all facts, and “[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Cook, 735 A.2d at 676. The investigative detention must be “justified at its inception”; circumstances arising after the suspect was detained cannot retroactively provide a lawful basis for the stop. Zhahir, 751 A.2d at 1156.

A police officer has the authority to stop a motor vehicle for an investigative detention upon observing a Vehicle Code violation. Clinton, 906 A.2d at 1030. During the traffic stop, the officer may check “vehicle registration, proof of financial responsibility, vehicle identification number or

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engine number or the driver’s license, or secure such other information as the officer may reasonably believe necessary to enforce the provisions of [the Vehicle Code].” 75 Pa.C.S.A. § 6308(b). The officer has “additional authority…

to request that the driver and any passengers step out of a vehicle which is the subject of a traffic stop “as a matter of course,”

regardless of whether the police have a reasonable suspicion that criminal activity is afoot. …. As the United States Supreme Court determined, the concern for officer safety, which is a legitimate basis for police requests to occupants to alight from stopped vehicles, outweighs the minor intrusion on the drivers and passengers whose freedom of movement had already been curtailed by the traffic stop. …. Further, … individuals have a diminished expectation of privacy while in vehicles.

Clinton, 906 A.2d at 1030.

Under these standards, particularly Clinton, Officer Johnston had the authority to direct Appellant to exit the vehicle. Id. (during traffic stop, concern for officer safety entitles officer to request vehicle occupant to alight from vehicle).3

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3 Although neither the Anders brief nor Appellant’s pro se submission addresses the subject, we agree with the trial court that even before spotting the gun, Officer Johnston had reasonable suspicion to request a K9 sniff of the exterior of the vehicle:

[T]he vehicle was stopped in a high crime area late at night and the driver did not stop the vehicle immediately when the stop was initiated which raised the Officer Johnston’s suspicion that attempts were being made to conceal contraband. When approached, [Appellant] immediately informed Officer Johnston that he was not the owner of the vehicle and neither he nor the passenger could produce the registration or insurance (Footnote Continued Next Page)

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Next, we analyze Appellant’s claim that the plain view doctrine did not apply to this case because Officer Johnston was not in a lawful vantage point when he observed the gun under the driver’s seat. The plain view doctrine authorizes a warrantless seizure of evidence when (1) the police must observe the object from a lawful vantage point; (2) the incriminating character of the object must be immediately apparent4; and (3) the police must have a lawful right of access to the object. Commonwealth v. Graham, 721 A.2d 1075, 1079 (Pa. 1998) (citing Horton v. California, 496 U.S. 128, 136-37 (1990)). Since any evidence seized by police will be in plain view at the moment of seizure, the “question of whether property in plain view of the police may be seized therefore must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question.” Graham, 721 A.2d at 1079 (citing Texas v. Brown, 460 U.S. 730, 737 (1983)).

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information. In addition, based on the visible nervousness of [Appellant] and the passenger, [Appellant]’s possession of three flip phones and the information obtained from dispatch that [Appellant] had pending drug possession charges, Officer Johnston had a reasonable suspicion to request a K-9 sniff of the vehicle.

Trial Court Opinion, 4/28/26, at 7. 4 In other words, “the observing officer must have probable cause to believe

the evidence in question is contraband or incriminating evidence”). Commonwealth v. Saunders, 326 A.3d 888, 897 (Pa. 2024). Probable cause exists “where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Id.

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Here, Officer Johnston asked Featherstone, the vehicle passenger, to step out of the vehicle after advising her that he believed he had reasonable suspicion of criminal activity and was requesting a K-9 to sniff the vehicle.5 Officer Johnston testified that at that point,

it started to rain moderately hard, and I was concerned about protecting the property within the vehicle as well as insuring rain doesn’t potentially damage any narcotics if there were to be any, so I went to the front driver’s door to roll up the windows, and as I did that, Ms. Featherstone mentioned to Sergeant Vronan that she was going to ask me to roll up the windows anyhow because, again, it was raining, so I wanted to protect everything.

N.T., 11/7/23, at 12-13. Officer Johnston opened the driver’s side door and began to roll up both front windows when he observed a tan handgun under the driver’s seat. Id. at 13. The trial court found this testimony credible, since the court incorporated this testimony into its opinion. Trial Ct. Op. at 7.

We hold that Officer Johnston was at a lawful vantage point when he observed the gun, because he was not conducting a search at that moment. “A search takes place when police intrude upon a constitutionally protected area without the individual’s explicit or implicit permission.” Commonwealth v. Prater, 256 A.3d 1274, 1286 (Pa. Super. 2021). Officer Johnston opened the front driver’s door and began rolling up the windows at Featherstone’s request. Nothing in the record suggests that Featherstone lacked the authority to make this request. Since she gave “explicit or implicit permission”

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5Neither the Anders brief nor Appellant’s pro se response contended that Officer Johnston’s order for Featherstone to exit the car was illegal.

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to roll up the windows, Officer Johnston’s actions did not constitute a search, id., so the officer was at a lawful vantage point when he noticed the gun underneath the driver’s seat.

Next, Appellant claims in his pro se filing that the search of the vehicle was invalid because Featherstone did not give valid consent to the search. We disagree. Officer Johnston asked Featherstone for consent to search the vehicle. Featherstone responded that she wanted to speak with her mother, the registered owner of the vehicle. The officers permitted Featherstone to telephone her mother. Featherstone’s mother consented to the search, N.T., 11/7/23, at 16, and Featherstone then consented as well. Id. at 17.

Courts must consider the following factors in determining whether consent to a search is valid:

the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen’s movements; 4) police demeanor and manner of expression; 5)

the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8)

whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Metz, 332 A.3d 92, 100-01 (Pa. Super. 2025). Featherstone initially did not consent because she wanted to speak with her mother, but after the officers permitted her to telephone her mother, she consented. Under the nine-factor test articulated in Metz, Featherstone’s consent clearly was voluntary and not the product of coercion. The fact that

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the officers allowed her to call her mother before making her final decision is compelling evidence that the officers did not behave coercively. It also deserves mention that we have found consent to a search voluntary in more difficult circumstances than the present case. See Metz, 332 A.3d at 101-02 (defendant’s consent to search was voluntary even though he initially refused to give consent, where police later obtained consent by advising defendant that they had enough information to obtain search warrant; such advice was merely “a factor, but not a dispositive one, in the totality of circumstances that the court must review in determining whether the police coerced the individual into consenting to the search”).

In short, the Anders brief properly concludes that Appellant’s objections to the trial court’s decision to deny Appellant’s motion to suppress are frivolous, because it is clear that (1) Officer Johnston had the authority to order Appellant to exit the vehicle, (2) Officer Johnston was at a lawful vantage point when he observed the gun, and (3) Featherstone gave valid consent to the search of the vehicle. No evidence of record conceivably demonstrates otherwise.

The second issue in the Anders brief concerns whether Appellant’s sentence was an abuse of discretion because the court focused on the seriousness of Appellant’s offense without addressing other mandatory sentencing factors, such as Appellant’s rehabilitative needs. We agree with the Anders brief that this issue is frivolous. Although this issue appears to

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raise a substantial legal question, there is no factual support whatsoever for this issue in the record.

This issue implicates the discretionary aspects of a sentence. An appellant “is not entitled to the review of challenges to the discretionary aspects of a sentence as of right.” Commonwealth v. Samuel, 102 A.3d 1001, 1006 (Pa. Super. 2014). Instead, the party challenging a discretionary aspect of a sentence must invoke this Court’s authority to review the claim by satisfying a four-part test. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). It is necessary to (1) timely file a notice of appeal, (2) preserve the issue at sentencing, (3) submit a brief that comports with Pa.R.A.P. 2119(f), and (4) establish that there is a “substantial question that the sentence appealed from is not appropriate under the Sentencing Code.” Id.

A substantial question is posed where a colorable argument has been advanced that the “sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010). Such a determination “must be evaluated on a case-by-case basis.” Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016).

Here, Appellant filed a timely notice of appeal, preserved his objection to his sentence in a post-sentence motion, and filed a brief that comports with

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Rule 2119(f). In addition, he raised a substantial question as to the propriety of his sentence under the Sentencing Code by claiming that his sentence was excessive and that the court focused on the seriousness of his offense without giving appropriate consideration to other sentencing factors required under 42 Pa.C.S.A. §§ 9721(b) (such as his rehabilitative needs) and 9725. See Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) (averment that court focused solely on seriousness of offense without considering all relevant factors, such as mitigating factors and defendant’s rehabilitative needs, raised substantial question).

Even though this issue is a substantial question under the law, there simply is no factual support for it in the record. The record clearly establishes that Appellant’s sentence was a proper exercise of discretion, because the court took into account all requisite sentencing factors.

At a sentencing hearing, the trial 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 . . . and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Sentencing is a matter vested in the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super. 2019). An abuse of discretion is not merely an error in judgment; rather a defendant must establish that the sentencing court misapplied the law or exercised its judgment for reasons of

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partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Nevels, 203 A.3d 229, 247 (Pa. Super. 2019).

“[W]hen a court possesses a pre-sentence report, it is presumed the court was aware of and weighed all relevant information contained in the report along with any mitigating sentencing factors.” Commonwealth v. Velez, 273 A.3d 6, 10 (Pa. Super. 2022) (cleaned up).

At sentencing, the court explained that Appellant had a history of firearms violations but had failed to learn from his errors despite being sentenced to probation and participation in re-entry programs. N.T., 4/15/25, at 15-18. The trial court further explained the basis for Appellant’s sentence in its opinion:

[Appellant] contends that the sentence imposed was an abuse of discretion and was inconsistent with the fundamental noms of the sentencing process by focusing on the seriousness of the offense to the exclusion of the other factors under 42 Pa.C.S.[A.] §§ 9721(b) and 9725 and, while ordering mental health and drug and alcohol evaluation and treatment during incarceration, did not adequately state reasons on the record for the need for such a lengthy sentence to protect the public and why a lesser sentence of incarceration would depreciate the seriousness of [Appellant]’s crime. Sec[tion] 9721 (b) provides:

General standards.--In selecting from the alternatives set forth in subsection (a), 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 [Appellant].

42 Pa.C.S.[A.] § 9721.

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42 Pa.C.S.[A.] § 9725 provides:

Total Confinement - The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the [Appellant], it is of the opinion that the total confinement of the [Appellant]

is necessary because:

(1) there is undue risk that during a period of probation or partial confinement the [Appellant] will commit another crime;

(2) the [Appellant] is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

(3) a lesser sentence will depreciate the seriousness of the crime of the [Appellant].

42 Pa.C.S.[A.] § 9725.

A trial court is not required to parrot the words of the Sentencing Code, stating every factor that must be considered under Section 9721(b), however, the record as a whole must reflect due consideration by the court of the statutory considerations at the time of sentencing. Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super. 2017). Here the record establishes that consideration was given to the protection of the public, the gravity of the offense and the impact on the community from the offense.

The evidence established that [Appellant]’s offense, as correctly characterized by the Commonwealth, was the possession of a gun that had been converted to a fully automatic weapon which was essentially a machine gun. In addition, as described in the Presentence Report, this was not an isolated offense as [Appellant] had a history of repeated possession of unlicensed weapons, including possession of a stolen weapon. [Appellant]’s family, education and health history was reviewed, including his mental health and rehabilitation history. The rehabilitative needs of [Appellant] were also considered in that he acknowledged in the Presentence Report that “he needs a strong support system to help him maintain his recovery” and it appears that outside of total confinement [Appellant] fails to maintain his conduct in conformity with the law. Given the nature of [Appellant]’s

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offenses, lesser sentences would depreciate the serious of the crimes that he committed. The record adequately sets forth the reasons on the record for the sentences imposed. Therefore, there was no abuse of discretion in the sentences imposed.

Trial Court Opinion, 4/28/26, at 8-9.

Having carefully reviewed the record, we agree with the Anders brief that the claim that Appellant’s sentence constitutes an abuse of discretion is frivolous. The court emphasized in its opinion that it reviewed Appellant’s presentence report in calculating Appellant’s sentence. The presumption thus arises that the court “weighed all relevant information contained in the report along with any mitigating sentencing factors,” including the report’s discussion of Appellant’s rehabilitative needs. Velez, 273 A.3d at 10. Indeed, it is a fact, not merely a presumption, that the court weighed Appellant’s rehabilitative needs, since its opinion expressly explains that it considered this subject. After weighing Appellant’s rehabilitative needs and other mandatory sentencing factors, the court determined that the gravity of Appellant’s offense, and his history of weapons offenses, required the arrived-at sentence.

Although we conclude the issues presented in the Anders brief are frivolous, our independent review discloses another potentially non-frivolous issue that requires further proceedings: whether the court abused its discretion by enhancing Appellant’s sentence for exercising his right to a jury trial instead of accepting a guilty plea offer. This issue is different from the sentencing issue in the Anders brief. The issue in the Anders brief concerned

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whether the court considered all proper sentencing factors; this issue is whether the court took an improper factor into account.

At sentencing, the court stated, “I remember [Appellant] got offered several plea agreements and he insisted on going to trial.” N.T., 4/15/25, at 12 (emphasis added). Subsequently, after summarizing Appellant’s prior criminal history, the court stated:

[T]he problem I have is you were given several offers to resolve this and you wanted a jury trial and you lost. And w[hat] the Commonwealth has pointed out[,] this is a very serious charge, you had what was equivalent to a machine gun, which you were carrying at this time. And your prior record … goes on, … to hear people say that they think you’ve learned something, I don’t buy it.

Id. at 18 (emphasis added).

In Commonwealth v. Bethea, 379 A.2d 102 (Pa. 1977), the trial court stated at sentencing that if the defendant had plead guilty, “it might have shown me the right side of your attitude about this, but you pled not guilty, fought it all the way, and the jury found you guilty, and I’m going to sentence you at this time.” Id. at 105-06. Our Supreme Court held that this comment “indicate[d] that the judge may have been influenced by the fact that appellant chose to stand trial rather than plead guilty,” vacated the judgment of sentence and remanded the case for resentencing. Id. at 107. The Court observed:

[T]he correct inquiry in a case such as this is not whether the trial court considered legitimate factors in fixing sentence, but whether it considered only such factors. This is so because any increase in sentence which results from a defendant’s decision to put the

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state to its proof puts a price upon the exercise of a fundamental constitutional right, and hence is unjustified. Thus, a sentence based in part on an impermissible consideration is not made proper simply because the sentencing judge considers other permissible factors as well.

Id. at 106.

“A court’s reliance on a defendant’s decision to go to trial rather than accept a plea bargain constitutes an abuse of discretion and presents a substantial question.” Moury, 992 A.2d at 170 (Pa. Super. 2010 (quoting Bethea, 379 A.2d at 104.

In his Anders brief, attorney Pass acknowledged that the trial court referred at sentencing to Appellant’s decision to exercise his right to a jury trial, but attorney Pass claimed that this reference

was not used to impose a more severe sentence which is prohibited by [Bethea]. Rather, [Appellant’s] decision on how to proceed in the guilt phase tangentially implicated whether [his]

significant criminal history and noncompliance while on supervision outside of total confinement should be discounted based upon recent professions of [him] learning his lesson and changing his ways. See Commonwealth v. Campbell, 347 A.3d 707, 720 (Pa. Super. 2025), appeal denied, --- A.3d ---, 2026 Pa.Lexis 688 (“That Appellant searched for pornographic videos related to his violent rape was relevant to both his rehabilitative needs, under 42 Pa.C.S.[A.] § 9721 (b), and his ‘history, character, and condition,’ under … § 9725, which were undoubtedly appropriate considerations for sentencing”). More significant, his prior guilty pleas did not effect a change in his behavior or show a sincere expression of remorse.

Anders Brief at 26 n.10. While we might expect the Commonwealth to construe the court’s remark in this manner, we also think it possible that defense counsel would argue that this remark demonstrates that the court

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violated Bethea by factoring Appellant’s decision to go to trial and demand a jury into its sentencing calculus. Attorney Pass, however, failed to present argument in support of Appellant on this potentially non-frivolous issue.

Since we have located a potentially non-frivolous issue, we deny attorney Pass leave to withdraw and remand for him to file either an advocate’s brief or a supplemental Anders brief explaining why this issue is frivolous. See Commonwealth v. Orellana, 86 A.3d 877, 883 (Pa. Super. 2014). We also direct attorney Pass to address any other meritorious issue that his review of the case might uncover. Id. He shall file his brief within 45 days of today’s decision.6 Motion to withdraw as counsel denied. Panel jurisdiction retained.

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6 We note that our discovery of a potentially non-frivolous issue does not preclude us from determining that the two issues raised in the Anders brief are frivolous. See Commonwealth v. McDonald, 2026 WL 1209815 (Pa. Super., May 4, 2026) (non-precedential memorandum) (defendant was entitled to relief on issue not raised in Anders brief, namely, his sentence on the one of the charges was illegal and subject to vacatur; despite granting this relief, court also agreed that issues in Anders brief were frivolous and denied relief on these issues).