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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILIP MARTIN CACURAK,                     :
                                               :
                       Appellant               :      No. 1036 WDA 2018

          Appeal from the Judgment of Sentence Entered May 25, 2018
                in the Court of Common Pleas of Indiana County
              Criminal Division at No(s): CP-32-CR-0001148-2017

BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 12, 2019

        Philip Martin Cacurak (“Cacurak”) appeals from the judgment of

sentence imposed following his conviction of failure to comply with registration

requirements.1 Additionally, Cacurak’s counsel, Jennifer L. Westrick, Esquire

(“Attorney Westrick”), has filed a Petition to Withdraw as counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744

(1967).     We grant Attorney Westrick’s Petition to Withdraw and affirm

Cacurak’s judgment of sentence.

        On May 22, 2018, following a jury trial, Cacurak was convicted of failure

to comply with his registration requirements pursuant to the Sexual Offenders

Registration and Notification Act (“SORNA”).           The trial court sentenced

Cacurak to a term of 6 months to 2 years, less one day, in prison, followed by

three years of probation. Cacurak filed a post-sentence Motion challenging,
____________________________________________


1   See 18 Pa.C.S.A. § 4915.1(a)(1).
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inter alia, the sufficiency of the evidence supporting his conviction. The trial

court denied Cacurak’s Motion. Cacurak, via Attorney Westrick, filed a timely

Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal. Attorney Westrick subsequently filed an

Anders Brief and a Petition to Withdraw as counsel. Cacurak neither filed a

pro se brief, nor retained alternate counsel for this appeal.

      Before addressing Cacurak’s issues on appeal, we must determine

whether Attorney Westrick has complied with the dictates of Anders and its

progeny     in   petitioning   to   withdraw   from   representation.       See

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009)

(stating that “[w]hen presented with an Anders brief, this Court may not

review the merits of the underlying issues without first passing on the request

to withdraw.”). Pursuant to Anders, when counsel believes that an appeal is

frivolous and wishes to withdraw from representation, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record and
      interviewing the defendant, counsel has determined the appeal
      would be frivolous, (2) file a brief referring to any issues in the
      record of arguable merit, and (3) furnish a copy of the brief to
      defendant and advise him of his right to retain new counsel or to
      raise any additional points that he deems worthy of the court’s
      attention. The determination of whether the appeal is frivolous
      remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted).




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     Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

     In the instant case, our review of the Anders Brief and the Petition to

Withdraw reveals that Attorney Westrick has substantially complied with each

of the requirements of Anders/Santiago. See Commonwealth v. Wrecks,

934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders). Attorney Westrick

indicates that she has made a conscientious examination of the record and

determined that an appeal would be frivolous. Further, Attorney Westrick’s

Anders Brief comports with the requirements set forth by the Supreme Court

of Pennsylvania in Santiago.   Finally, Attorney Westrick provided Cacurak

with a copy of the Anders Brief; advised Cacurak of his rights to retain new

counsel or to raise any additional points deemed worthy of the Court’s

attention; and attached a copy of the letter sent to Cacurak to the Anders

Application for Leave to Withdraw, as required by Commonwealth v.




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Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).2 Thus, Attorney Westrick

has complied with the procedural requirements for withdrawing from

representation.      We now address the issues that, according to Attorney

Westrick, arguably support Cacurak’s appeal.

       Attorney Westrick states that Cacurak wishes to raise the following

issues for our review:

       1. Was the evidence presented at trial sufficient to support the
       verdict against [Cacurak]?

       2. Was the imposed sentence proper?

Anders Brief at 5.

       In his first issue, Cacurak argues that the Commonwealth failed to

present sufficient evidence to establish that he failed to comply with his

registration requirements. See id. at 10-14. Cacurak alleges that his extreme

mental anxiety prevented him from being able to register his new employment

with the Pennsylvania State Police. Id. at 12-13. Cacurak claims that he

drove to the Pennsylvania State Police Barracks in Indiana, PA, but his fear of

being arrested prevented him from entering the building and registering. Id.

       We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

             [W]hether[,] viewing all the evidence admitted at trial in the
       light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
____________________________________________


2 While the Supreme Court in Santiago set forth the above-mentioned
requirements for an Anders brief, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.

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     crime beyond a reasonable doubt. In applying the above test, we
     may not weigh the evidence and substitute our judgment for the
     fact-finder. In addition, we note that the facts and circumstances
     established by the Commonwealth need not preclude every
     possibility of innocence. Any doubts regarding a defendant’s guilt
     may be resolved by the fact-finder unless the evidence is so weak
     and inconclusive that as a matter of law no probability of fact may
     be drawn from the combined circumstances. The Commonwealth
     may sustain its burden of proving every element of the crime
     beyond a reasonable doubt by means of wholly circumstantial
     evidence. Moreover, in applying the above test, the entire record
     must be evaluated and all evidence actually received must be
     considered. Finally, the finder of fact[,] while passing upon the
     credibility of witnesses and the weight of the evidence produced,
     is free to believe all, or part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

     Cacurak’s conviction under 18 Pa.C.S.A. § 4915.1(a)(1) required the

Commonwealth to prove that Cacurak (1) was subject to the registration

requirements of SORNA, (2) had a “change in the location or entity in which

[he was] employed,” and (3) knowingly failed to appear in person at an

approved registration site to notify the Pennsylvania State Police of that

change, (4) within three days of the change. See 18 Pa.C.S.A. §§ 9799.13,

4915.1(a)(1), 9799.15(g)(3).

     Here, Cacurak stipulated that he was subject to registration under

SORNA at the time of the current offense.        See N.T., 5/21/18, at 14.

Additionally, Cacurak testified that he was aware that he had to register his

new employment. See id. at 45-46, 47. Further, Cacurak acknowledged that

he signed a Notice advising him of his registration requirements, that he was


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aware of the three-day registration requirement for new employment, and

that he refused to register because he believed it was against his constitutional

rights. Id. at 51, 54, 55.

      Moreover, Cacurak’s parole officer, James D. Decker (“Decker”),

testified that on June 5, 2017, Cacurak informed Decker that he had started

a new job. Id. at 26-27. Decker stated that despite advising Cacurak of his

SORNA registration requirements on several occasions, as of June 26, 2017,

Cacurak had not registered his new employment. Id. at 26-28.

      Thus, the evidence was sufficient to prove that Cacurak was subject to

registration under SORNA, and that he knowingly failed to register his new

employment within three days of his new employment. Accordingly, Cacurak’s

first issue is wholly frivolous.

      In his second issue, Cacurak challenges the discretionary aspects of his

sentence.    “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017).        Prior to reaching the merits of a

discretionary sentencing issue,

      [w]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Grays, 167 A.3d at 815-16 (citation omitted).

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      Here, Cacurak filed a timely Notice of Appeal and preserved his claim in

his post-sentence Motion.    Although we note the absence of the requisite

Pa.R.A.P. 2119(f) statement in the Anders Brief, “[w]here counsel files an

Anders brief, this Court has reviewed the matter even absent a separate

Pa.R.A.P. 2119(f) statement. Hence, we do not consider counsel’s failure to

submit a Rule 2119(f) statement as precluding review of whether [Cacurak’s]

issue is frivolous.”   Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.

Super. 2015) (citations omitted). Accordingly, we will conduct an independent

review of the record to determine whether Cacurak’s sentencing claim is

frivolous.

            When imposing a sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.      It must be
      demonstrated that the court considered the statutory factors
      enunciated for determination of sentencing alternatives, and the
      sentencing guidelines. Additionally, the court must impose a
      sentence which 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 the community, and the rehabilitative needs of the
      defendant.

Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)

(internal citations and quotation marks omitted).      “[W]here a sentence is

within the standard range of the guidelines, Pennsylvania law views the

sentence as appropriate under the Sentencing Code.” Commonwealth v.

Moury, 992 A.2d 162, 171 (Pa. Super. 2010).




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      Initially, the trial court had the benefit of a pre-sentence investigation

report (“PSI”), which the court expressly stated it had considered prior to

imposing sentence. N.T., 5/25/18, at 3.     “[W]here the trial court is informed

by a [PSI], it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.” Commonwealth v. Downing, 990

A.2d 788, 794 (Pa. Super. 2010) (quotation marks and citations omitted).

      Moreover, the trial court considered the sentencing guidelines,

Cacurak’s   probation    history,   including   two   revocations,    Cacurak’s

rehabilitative needs, and the protection of the community. See N.T., 5/25/18,

at 3; Trial Court Opinion, 9/17/18, at 8-9.     Thus, the trial court properly

considered all of the statutory factors before sentencing Cacurak.         See

McClendon, supra. Moreover, the sentence was within the standard range

of the guidelines. See Moury, supra. Accordingly, we conclude that the trial

court’s sentence was not improperly excessive, and Cacurak’s discretionary

sentencing challenge is wholly frivolous.

      Finally, our independent review of the record discloses no additional

non-frivolous issues that could be raised on appeal.       We therefore grant

Attorney Westrick’s Petition, and affirm Cacurak’s judgment of sentence.

      Petition to Withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/2019




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