Com. v. Shaulis, E.

• Court: Superior Court of Pennsylvania
• Decided: April 9, 2026
• Docket: 272 WDA 2025
• Status: Unpublished
• Author: Murray

Opinion

J-A06028-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ELMER DUANE SHAULIS : : Appellant : No. 272 WDA 2025

Appeal from the Judgment of Sentence Entered January 31, 2025 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002877-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ELMER DUANE SHAULIS : : Appellant : No. 273 WDA 2025

Appeal from the Judgment of Sentence Entered January 31, 2025 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002878-2021

BEFORE: OLSON, J., MURRAY, J., and BECK, J.

MEMORANDUM BY MURRAY, J.: FILED: April 9, 2026

Elmer Duane Shaulis (Appellant) appeals from the judgment of sentence

imposed following his guilty pleas to flight to avoid apprehension, possession

of a controlled substance, possession with the intent to deliver a controlled

substance (PWID), and delivery of a controlled substance.1 Appellant’s court-

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1 18 Pa.C.S.A. § 5126(a); 35 P.S. § 780-113(a)(16), (30). J-A06028-26

appointed counsel, James P. Spriestersbach, Esquire (Counsel), has filed in

this Court a brief in accordance with Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 249 (Pa. 2009), to which

Counsel attached a petition to withdraw.2 After careful review, we grant

Counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.

The trial court summarized the relevant factual history as follows:

On or about December 11, 2019, Pennsylvania State Police Tro[o]per Karen Orsini (“Trooper Orsini”) and a confidential informant (“CI”) met [Appellant] at a supermarket in Latrobe[, Pennsylvania,] to purchase crack cocaine. [Appellant] entered Trooper Orsini’s undercover vehicle and delivered to the CI and [Trooper Orsini] 2.41 grams of crack cocaine. … On October 14, 2021, the Commonwealth filed a criminal information[, at CP-65- CR-0002878-2021 (Case 2878)], charging [Appellant] with delivery of a controlled substance, [PWID], and possession of a controlled substance.

In a separate incident on August 7, 2021, two Pennsylvania State [Police] troopers [(the troopers)] approached a residence in Latrobe, where [Appellant] was working, in pursuit of [Appellant] for a felony arrest warrant for [Appellant’s charges in Case 2878]. As the troopers approached, [Appellant] fled into the residence and failed to come outside as directed by the troopers. The troopers [entered] and found [Appellant] in the basement of the residence, hiding behind a piece of furniture. … On October 14, 2021, the Commonwealth filed a criminal information[, at CP-65- CR-0002877-2021 (Case 2877)], charg[ing Appellant] with flight to avoid apprehension….

… [Appellant] entered [open] guilty plea[s, to the above- described charges,] for both cases on November 12, 2024[. The ____________________________________________

2 Counsel did not comply with our directive, by orders dated October 23 and

November 18, 2025, to file his withdrawal petition separately from his Anders brief. See Order, 10/23/25 (ordering Counsel to comply within seven days); Order, 11/18/25 (same). While we admonish Counsel’s non-compliance with our directive, we will address his petition.

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trial] court ordered a presentence [investigation (PSI) report] on the same date.

Trial Court Opinion, 4/10/25, at 1-2 (citations omitted; punctuation and

capitalization modified).

The matter proceeded to sentencing on January 31, 2025. The

Commonwealth offered no recommendation, deferring to the trial court’s

sentencing discretion. N.T., 1/31/25, at 5. Appellant requested the trial court

“impose a period of probation with an appropriate length of house arrest.” Id.

at 6.

Prior to imposing sentence, the trial court questioned Appellant about

his housing, family, and mental health status; commented on Appellant’s prior

record score as a repeat felony offender (RFEL); noted a crime-free period in

Appellant’s criminal record between 1989 and 2011; and confirmed, with a

parole agent in attendance, that Appellant was eligible for house arrest should

the trial court be inclined to impose such a sentence. Id. at 10-11.

The Commonwealth noted that Appellant was not being held on a state

detainer. Id. at 11. The Commonwealth represented, however, that “two

[parole] agents are here from the [Pennsylvania Parole Board] and[, after]

sentenc[ing], they are going to take [Appellant] into custody to serve his back

time, which is approximately 18 months.” Id. at 12.3 Appellant did not

3 Details concerning Appellant’s sanction by the Pennsylvania Parole Board, relative to an unrelated sentence, are not contained within the certified record.

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dispute the Commonwealth’s representation. See id. at 14 (Counsel stating,

“[W]ith … the [Pennsylvania Parole Board’s] intention that [Appellant] be

taken into custody today, I was going to ask[,] if the [trial c]ourt were to

incarcerate [Appellant,] to give him some reasonable time to make

arrangements for his property ….”).

The trial court concluded that, “[i]f [Appellant is] going to serve 18[

months in prison], he might as well just serve some state time on [the instant

cases.]” Id. at 12. The trial court thereafter sentenced Appellant to an

aggregate 21 to 42 months in prison.4 For each conviction, the trial court

sentenced Appellant at the lower end of the mitigated sentencing guideline

ranges.5

Appellant did not timely file post-sentence motions. On February 19,

2025, in both cases, Appellant filed nunc pro tunc post-sentence motions

4 At Case 2878, the trial court determined that Appellant’s convictions for PWID and possession of a controlled substance merged with his conviction of delivery of a controlled substance for purposes of sentencing. N.T., 1/31/25, at 15.

5 The applicable minimum sentencing guideline ranges, under the seventh edition of the sentencing guidelines, were as follows:

• Delivery of a controlled substance – 27 to 40 months in prison, plus/minus 6 months; • Flight to avoid apprehension – 24 to 36 months in prison, plus/minus 3 months.

See 204 Pa. Code § 303.16(a) (Basic Sentencing Matrix).

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challenging the discretionary aspects of his sentence. The trial court did not

rule on Appellant’s nunc pro tunc motions. Appellant timely filed a single

notice of appeal listing both docket numbers.6 Appellant timely filed a court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. On April 10, 2025, the trial court filed an opinion pursuant to Rule

1925(a).

On September 24, 2025, Counsel filed an Anders brief, to which he

attached a petition to withdraw from representation.7, 8 Appellant did not

retain separate counsel, file a pro se brief, or otherwise respond to Counsel’s

petition to withdraw.

6 On March 11, 2025, this Court entered an order directing Appellant to file

amended notices of appeal, one at each docket number. Order, 3/11/25 (citing Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (requiring appellants to file separate notices of appeal when a single order resolves issues arising on more than one lower court docket) and Commonwealth v. Young, 265 A.3d 462 (Pa. 2021) (permitting appellate courts to allow for correction when a timely appeal is erroneously filed at only one docket)). Appellant complied, and this Court consolidated the appeals for review.

7 This Court may consider a withdrawal request attached to an Anders brief.

See Commonwealth v. Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995). We note, however, that “the more desirable practice would be to submit a separate withdrawal request to the [C]ourt ….” Id.

8 As noted above, Appellant filed a Rule 1925(b) concise statement, rather than a statement of intent to withdraw. See Pa.R.A.P. 1925(b), (c)(4). Appellant did not attach to his Anders brief a copy of the concise statement, in violation of Pa.R.A.P. 2111(d). This procedural defect does not impede our review.

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We initially address Counsel’s petition to withdraw prior to reaching the

substantive issues raised in the Anders brief. See Commonwealth v.

Strasser, 134 A.3d 1062, 1065 (Pa. Super. 2016) (“[W]e do not consider the

merits of an issue raised in an Anders brief without first reviewing a request

to withdraw”). Counsel seeking to withdraw pursuant to Anders must satisfy

certain procedural and substantive requirements. Commonwealth v.

Tejada, 176 A.3d 355, 358 (Pa. Super. 2017). Procedurally, counsel must

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the Anders brief to the appellant; and 3) advise the appellant that he or she has the right to retain private counsel or raise additional arguments that the appellant deems worthy of the court’s attention.

Commonwealth v. Gabra, 336 A.3d 1052, 1056 (Pa. Super. 2025) (citation

omitted).

Substantively, counsel must file an Anders brief, in which counsel

(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state[s] 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, 978 A.2d at 361; see also Commonwealth v. Redmond, 273

A.3d 1247, 1252 (Pa. Super. 2022) (“Substantial compliance with the Anders

requirements is sufficient.”). Once counsel has complied with the procedural

requirements, we review the record and render an independent judgment as

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to whether the appeal is wholly frivolous. Commonwealth v. Yorgey, 188

A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

Counsel has substantially complied with Anders’ procedural and

substantive requirements. In his brief, Counsel states that he made a

“thorough review of the record,” and concluded Appellant’s appeal is frivolous.

See Anders Brief at 11. Counsel provided Appellant with a copy of the

Anders brief, which summarizes the facts and procedural history, includes an

issue that could arguably support Appellant’s appeal,9 and explains Counsel’s

assessment of why Appellant’s issue is frivolous. Id. at 8-16. Counsel

attached to his Anders brief a copy of the letter he sent to Appellant, in which

Counsel advised Appellant of his right to retain private counsel, or proceed

pro se, to raise any additional issues on appeal. See id., Attachment

(Correspondence). Accordingly, we review Appellant’s issue presented in

Counsel’s Anders brief.

Counsel’s Anders brief identifies the following issue: Whether the trial

court abused its discretion in imposing sentence, and was “impermissibly

swayed” by the fact that the Commonwealth represented parole agents

intended to take Appellant into custody to serve his parole back time following

the imposition of sentence in Appellant’s instant cases? Id. at 13.

9 Although, in his statement of questions involved, Counsel frames the issues

in general terms of whether there are issues of arguable merit and whether the appeal is frivolous, the brief’s argument section contains the discrete issue that Counsel has identified. See Anders Brief at 7, 12.

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Appellant challenges the discretionary aspects of his sentence, from

which there is no absolute right to appeal. Commonwealth v. Solomon,

247 A.3d 1163, 1167 (Pa. Super. 2021) (en banc); see also Commonwealth

v. Davis, 341 A.3d 808, 812 (Pa. Super. 2025) (observing a “claim that the

sentencing court relied on an impermissible factor in determining [the

appellant’s] sentence challenges the sentencing court’s exercise of

discretion[.]”). An appellant challenging the discretionary aspects of his

sentence must first invoke this Court’s jurisdiction:

We 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.

Commonwealth v. Glawinski, 310 A.3d 321, 325 (Pa. Super. 2024)

(citation omitted).

Here, Appellant timely filed a notice of appeal. However, as Counsel

candidly concedes, Appellant did not preserve his challenge to the

discretionary aspects of his sentence at the time of sentencing or in a timely

post-sentence motion. Anders Brief at 13; see also Pa.R.Crim.P. 720(A)(1)

(“[A] written post-sentence motion shall be filed no later than 10 days after

imposition of sentence.”); Commonwealth v. Wrecks, 931 A.2d 717, 719

(Pa. Super. 2007) (“An untimely post-sentence motion does not preserve

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issues for appeal.” (citation omitted)). Consequently, Appellant waived his

discretionary sentencing claim. Glawinski, 310 A.3d at 325.

Even if Appellant had not waived his challenge to the discretionary

aspects of his sentence, it would merit no relief.10 As stated by Counsel,

Appellant argues that, “while seemingly contemplating” a lesser sentence, the

trial court was “impermissibly swayed” by the Commonwealth’s representation

that Appellant was required to serve 18 months’ back time relative to an

unrelated parole violation sanction. Anders Brief at 11.

“The standard employed when reviewing the discretionary aspects of

sentencing is very narrow.” Commonwealth v. King, 182 A.3d 449, 454

(Pa. Super. 2018) (citation omitted). “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.” Commonwealth v. Reid,

323 A.3d 26, 30 (Pa. Super. 2024) (citation omitted). “The rationale behind

such broad discretion and the concomitantly deferential standard of appellate

review is that the sentencing court is in the best position to determine the

proper penalty for a particular offense based upon an evaluation of the

individual circumstances before it.” Commonwealth v. Walls, 926 A.2d 957,

10 Counsel failed to include in his Anders brief a Pa.R.A.P. 2119(f) statement

of reasons relied upon for allowance of appeal. Nevertheless, “[w]here counsel files an Anders brief, this Court has reviewed [discretionary sentencing claims] even absent a separate [Rule] 2119(f) statement.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citation omitted).

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961 (Pa. 2007) (citation and quotation marks omitted); see also

Commonwealth v. Hill, 66 A.3d 365, 370 (Pa. Super. 2013) (stating a

sentencing court “has broad discretion in choosing the range of permissible

confinements that best suits a particular defendant and the circumstances

surrounding his crime.” (citation omitted)).

Where the trial court has imposed a sentence within the sentencing

guidelines, our standard of review is whether application of the guidelines was

“clearly unreasonable” under the circumstances of the case. 42 Pa.C.S.A. §

9781(c)(2); see also Commonwealth v. Coulverson, 34 A.3d 135, 146 (Pa.

Super. 2011) (noting “the concept of unreasonableness [is] inherently a

circumstance-dependent concept that is flexible in understanding and lacking

precise definition.” (citation omitted)).

Sentencing Code Section 9721(b) directs trial courts to adhere to the

general principle that the sentence imposed should call for total confinement

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). “The weighing

of factors under [Section] 9721(b) is exclusively for the sentencing court, and

an appellate court may not substitute its own weight of those factors.”

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

Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012)).

Instantly, the trial court opined that

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the record in this case makes clear that the court arrived at [its] sentencing decision based on the necessary statutory factors. The court observed [Appellant] during the sentencing hearing and considered factors[,] including the circumstances of [Appellant’s] offenses, a [PSI] report, and [Appellant’s prior record score of] RFEL …. The sentencing transcript, [] shows that the court did not change its sentence from house arrest to incarceration or otherwise change its course in sentencing. N.T., 1/31/25, at 11- 13.

Trial Court Opinion, 4/10/25, at 7 (citations modified; paragraph break

We discern no abuse of the trial court’s broad discretion in imposing

Appellant’s sentence. See Hill, 66 A.3d at 370. As noted above, prior to

imposing a mitigated-range sentence, the trial court queried Appellant

regarding certain of his life circumstances, evidencing the trial court’s

individualized approach to sentencing Appellant. Further, the trial court had

the benefit of a PSI report. Where a trial court “had and considered a [PSI]

report, we are required to presume that the court properly weighed the

mitigating factors present in the case.” Commonwealth v. Fowler, 893 A.2d

758, 766 (Pa. Super. 2006) (citation omitted); see also Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (observing the trial court

satisfies “the requirement that reasons for imposing sentence be placed on

the record by indicating that he or she has been informed by the pre-

sentencing report; thus properly considering and weighing all relevant

factors.” (citation omitted)).

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Moreover, Appellant did not at the time of sentencing, or now on appeal,

contest that he was required to serve back time as a result of a parole

violation, and the record does not establish otherwise. See Walls, 926 A.2d

at 967 n.6 (rejecting the appellant’s claims that the sentencing court

mischaracterized the appellant’s version of events where “neither [the

appellant] nor his counsel sought to correct the sentencing court’s

understanding of [the appellant’s] statements.”).

Consequently, even if Appellant had preserved his discretionary

sentencing claim, it would merit no relief. Further, our independent review

discloses no non-frivolous issues Appellant could raise. Accordingly, we grant

Counsel’s petition to withdraw as counsel and affirm the judgment of

sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

4/9/2026

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