J-S33015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHARON JACOBOSKY,

                            Appellant                No. 2004 MDA 2016


            Appeal from the Judgment of Sentence October 20, 2016
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003949-2013


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 09, 2017

        Sharon Jacobosky (Appellant) appeals from the judgment of sentence

of 9 to 48 months’ incarceration and the payment of restitution, imposed

after Appellant pled guilty to one count of theft by failure to make required

disposition of funds, 18 Pa.C.S. § 3927(a). Appellant challenges the court’s

sentencing her to a state correctional facility rather than allowing her to

enter the county intermediate punishment program or sentencing her to

probation.    Additionally, Appellant’s counsel, Matthew P. Kelly, Esq., 1 has

filed a petition to withdraw his representation of Appellant pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Attorney Kelly was appointed to represent Appellant on appeal.
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Santiago, 978 A.2d 349 (Pa. 2009).2              After careful review, we affirm

Appellant’s judgment of sentence and grant counsel’s petition to withdraw.

       Appellant’s conviction was based on the following facts: namely, that

while acting as a caretaker for the 94-year-old victim, Clementine Moseman,

and her disabled daughter, and having the victim’s Power of Attorney,

Appellant used that Power of Attorney to make unauthorized withdrawals

from the victim’s bank and investment accounts.           Specifically, the court

explained:

       [Appellant], who suffers from several health-related conditions,
       became Moseman’s Power of Attorney on October 22, 2009. The
       Power of Attorney was revoked on November 3, 2011, when
       Moseman’s niece, Evelyn Hannon, was made Power of Attorney.
       Hannon discovered a discrepancy in Moseman’s bank records
       and made a complaint of financial exploitation against
       [Appellant] with the Dallas Borough Police Department on
       December 9, 2011.        After an investigation and review of
       Moseman’s bank and investment accounts during the time period
       that [Appellant] had Power of Attorney, the Commonwealth
       alleged a systematic liquidation of Moseman’s investments and
       that a dramatic increase in checks negotiated by [Appellant] had
       taken place. Linda Mill, a Certified Fraud Examiner for the
       Institute on Protective Services at Temple University, examined
       the accounts and conducted a forensic audit. Based upon the
       results of her examination, Linda Mill found evidence that
       [Appellant] received $258,538.30 of Moseman’s funds between
       January 1, 2009 and November 4, 2011.

Trial Court Opinion (TCO), 2/15/17, at 1-2.


____________________________________________


2
  The Commonwealth has chosen not to submit a brief, indicating that it
agrees with Attorney Kelly’s position that no non-frivolous issues are
apparent in this case.



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      Following Appellant’s entry of her guilty plea and her sentencing,

Appellant filed a timely notice of appeal. She also timely complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) statement in which she raised

the following issue: “[Appellant] alleges that the court abused its discretion

in failing to sentence her to a county intermediate punishment program for

which she is eligible or in the alternative, probation due to [Appellant’s] poor

physical health.” Appellant’s Rule 1925(b) Statement, 12/19/16.

      As indicated supra, Attorney Kelly has filed with this Court a petition to

withdraw and an Anders brief, asserting that the issue Appellant seeks to

raise is frivolous, and that she has no other non-frivolous issues that counsel

could argue on appeal.

      This Court must first pass upon counsel’s petition to withdraw
      before reviewing the merits of the underlying issues presented
      by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
      287, 290 (Pa. Super. 2007) (en banc).

      Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in Santiago. The brief must:

         (1) provide a summary of the procedural history and facts,
         with citations to the record;

         (2) refer to anything in the record that counsel believes
         arguably supports the appeal;

         (3) set forth counsel’s conclusion that the appeal is
         frivolous; and

         (4) state counsel’s reasons for concluding that the appeal
         is frivolous. Counsel should articulate the relevant facts of
         record, controlling case law, and/or statutes on point that
         have led to the conclusion that the appeal is frivolous.

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     Santiago, 978 A.2d at 361. Counsel also must provide a copy
     of the Anders brief to his client. Attending the brief must be a
     letter that advises the client of his right to: “(1) retain new
     counsel to pursue the appeal; (2) proceed pro se on appeal; or
     (3) raise any points that the appellant deems worthy of the
     court[’]s attention in addition to the points raised by counsel in
     the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
     353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
     (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”      Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

     In the instant case, Attorney Kelly’s Anders brief substantially

complies with the above-stated requirements. Namely, he includes a brief

summary of the relevant factual and procedural history, and provides

citations to the record.    He refers to a portion of the record that could

arguably support Appellant’s claim, and he sets forth his conclusion that

Appellant’s issue is frivolous.    He explains his reason for reaching that

determination, which he supports with legal authority. Attorney Kelly also

states in his petition to withdraw that he has supplied Appellant with a copy

of his Anders brief, and he attaches a letter directed to Appellant in which

he informs her of the rights enumerated in Nischan.                Therefore, we

conclude   that   counsel   has   sufficiently   complied   with   the   technical



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requirements for withdrawal.         We now independently review the record to

determine if Appellant’s sentencing claim is frivolous, and to ascertain

whether there are other, non-frivolous issues Appellant could pursue on

appeal.

       According to Attorney Kelly, Appellant’s claim is a challenge to the

discretionary aspects of her sentence, i.e., whether the court abused its

discretion in sentencing her to a standard range sentence in a state

correctional facility instead of allowing her to participate in the intermediate

punishment program.3          Specifically, in the Anders brief, Attorney Kelly

recognizes that to challenge the discretionary aspects of sentencing there is

no entitlement to appellate review as of right. We agree and note that in

Commonwealth v. Kimbrough, 872 A.2d 1244 (Pa. Super. 2005), this

Court explained:

             A challenge to the discretionary aspects of a sentence
       requires an appellant to set forth a separate, concise statement
       of the reasons relied upon for allowance of appeal. Pa.R.A.P. …
       2119(f)[.] In addition, the appellant must raise a substantial
       question as to the appropriateness of the sentence, which would
       permit us to accept the appeal as to this issue.
       Commonwealth v. Boyer, 856 A.2d 149, [152] (Pa. Super.
       2004).

                                          . . .

____________________________________________


3
  The Anders brief contains a concise statement of the reason relied upon
for allowance of appeal as to the discretionary aspects of Appellant’s
sentence; thus, she has complied with the requirements of Pa.R.A.P.
2119(f).



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      Whether a substantial question has been raised that a sentence
      is inappropriate under the Sentencing Code must be evaluated
      on a case-by-case basis. Commonwealth v. Titus, 816 A.2d
      251 (Pa. Super. 2003). A substantial question exists where the
      brief sets forth a colorable argument that the sentence violates a
      particular provision of the Sentencing Code or is contrary to the
      fundamental norms underlying the sentencing scheme.
      Commonwealth v. Reynolds, 835 A.2d 720 (Pa. Super. 2003).
      After careful review and for the reasons that follow, we find that
      because the sentencing judge imposed sentences that were
      within the standard range of the applicable guidelines, and that
      he fully stated his reasons for imposing those sentences, no
      substantial question has been presented.

Id. at 1262-63 (emphasis in original).

      Here, Attorney Kelly concludes that “[u]pon review of the record,

counsel cannot opine that the sentence violates the Sentencing Code or

represents a deviation from said Code, thus[,] no abuse of discretion exists

and there is no substantial [question] for this [C]ourt to review.”     Anders

brief at 7. Furthermore, we recognize that in its Pa.R.A.P. 1925(a) opinion,

the trial court noted Appellant’s health issues, but stated:

            In this case, we reviewed the PSI and heard from
      [Appellant] and the niece of the now deceased victim. This
      [c]ourt specifically found that, although [Appellant] was
      statutorily eligible for an IPP sentence “it would be inappropriate,
      under the circumstances of the case, as it would diminish the
      seriousness of the offense in this case.” []Sentencing Hearing
      N.T. at 14, 1, 5-7.[] Further this [c]ourt explained its reasons
      for the sentence on the record, emphasizing that [Appellant] was
      in a position of trust with two elderly victims. Id. at 14, 1, 11-
      12. We also particularly noted that [Appellant] has shown
      absolutely no remorse. Id. at 14, 1, 15.

TCO at 5.

      In light of the record, we conclude that Appellant has failed to assert a

substantial question.   Thus, we agree with Attorney Kelly that the issue

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Appellant seeks to assert on appeal is frivolous, and our independent review

of the record does not reveal any other, non-frivolous issues he could

present on Appellant’s behalf.   Accordingly, we grant counsel’s petition to

withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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