J-S64028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TRACI LYNN JONES,

                            Appellant                    No. 513 MDA 2017


           Appeal from the Judgment of Sentence February 1, 2017
              In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000841-2016


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED OCTOBER 25, 2017

       Traci Lynn Jones (“Appellant”) appeals from the judgment of sentence

entered in the Court of Common Pleas of Franklin County on February 1,

2017. Appellant’s       counsel    has filed an    application   to   withdraw   her

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

govern a withdrawal from representation on direct appeal. Appellant has not

filed a response to counsel’s petition.1          After careful review, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.


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*   Former Justice specially assigned to the Superior Court.

1   The Commonwealth has not filed an appellate brief.
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        We glean the following background of this case from the record:

Appellant shopped at the Waynesboro Walmart on April 10, 2016, with her

friend, Brittany Sweitzer, and Ms. Sweitzer’s boyfriend, Ryan Hartley.

Because of her suspicious activity in the Walmart, asset protection associate

Cody Davis conducted surveillance of Appellant.          As Appellant passed

through the checkout area and exited the Walmart with $436.51 in unpaid

merchandise, Mr. Davis contacted the Washington Township police. Officers

arrested Appellant in an adjacent parking lot; she was charged with retail

theft, a violation of 18 Pa.C.S. § 3929(a)(1).2

        Following a one-day trial, a jury convicted Appellant of retail theft on

December 20, 2016, finding the value of the items taken to be in excess of

$150.      The trial court sentenced Appellant on February 1, 2017, to

incarceration for a term of nine to twenty-three months, followed by thirty-

seven months of probation. Appellant filed a timely post-sentence motion.

Following a hearing on March 20, 2017, the trial court denied Appellant’s

motion. On March 21, 2017, Appellant filed a notice of appeal. Appellant

and the trial court complied with Pa.R.A.P. 1925.

        Before we address the merits of this appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc).         There are procedural and
____________________________________________


2Mr. Hartley was also charged with retail theft as a result of his leaving the
Walmart with unpaid merchandise. N.T., 12/20/16, at 67, 73–74.



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briefing requirements imposed upon an attorney who seeks to withdraw on

direct appeal. The procedural mandates are that 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 brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied the directives for withdrawal. Within

her petition to withdraw, counsel averred that she conducted a thorough

review of Appellant’s case and determined that the appeal would be

frivolous. Counsel sent Appellant a copy of the Anders brief and petition to

withdraw, as well as a letter, a copy of which is attached to the petition. In

the letter, counsel advised Appellant that she could either represent herself

on appeal or retain private counsel to represent her.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

      in 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.

Santiago, 978 A.2d at 361.

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      Counsel’s Anders brief is compliant with Santiago. It sets forth the

factual and procedural history of this case, outlines pertinent case authority,

cites to the record, and refers to issues of arguable merit. Anders Brief at

3–9. Further, the brief sets forth counsel’s conclusion that the appeal is

frivolous and the reasons for counsel’s conclusion.           Id. at 10–16.

“Therefore, we now have the responsibility to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.”    Commonwealth v. Tukhi, 149 A.3d

881, 886 (Pa. Super. 2016) (citation and internal quotation marks omitted).

      In the Anders brief, counsel presents the following issues for our

consideration:

             1.     Whether the Sentencing Court abused its discretion
      by sentencing [Appellant] to nine (9) to 23 months in the
      Franklin County jail followed by 37 months of probation on her
      retail theft conviction?

            2.    Whether [Appellant] was denied a fair and impartial
      jury because the jury selection procedure utilized in Franklin
      County did not produce a jury pool that fairly represented the
      racial makeup of the community as there were no African
      American jurors that could have been empaneled on the jury in
      [Appellant’s] case?

            3.    Whether [Appellant] was unfairly discriminated
      against by law enforcement and the Commonwealth because of
      her race and gender in violation of her due process rights?

Anders Brief at 7.

      Appellant’s first issue challenges the discretionary aspects of her

sentence. We note that “[t]he right to appellate review of the discretionary


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aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d

127, 132 (Pa. Super. 2014).     Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

            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, 42
            Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will allow the appeal 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. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

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      Herein, the first, second, and third requirements of the four-part test

are met: Appellant brought a timely appeal, challenged her sentence in a

post-sentence motion, and included in her Anders brief the necessary

separate concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).        Notice of Appeal, 4/13/17; Post-

Sentence Motion, 2/7/17, at ¶¶ 4–10; Anders Brief at 11.

      With regard to the fourth requirement, “[w]e examine an appellant’s

Rule 2119(f) statement to determine whether a substantial question exists.”

Commonwealth v. Ahmad, 961 A.2d 884, 886–887 (Pa. Super. 2008).

Here, the Rule 2119(f) statement fails to cite the particular provision of the

Sentencing    Code   or   specific   fundamental   norm    Appellant’s   sentence

allegedly violates. Moreover, counsel recognizes that “Appellant received a

legal sentence with a minimum within the standard range and a maximum

no greater than the maximum permitted for a retail theft graded as a

misdemeanor of the first degree....” Anders Brief at 11.

      Appellant’s first issue could be deemed waived because it does not

specifically appear in the Rule 2119(f) statement.        However, because the

Commonwealth does not object to the omission, we address it. See

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (quoting

Commonwealth v. Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (“If a

defendant fails to include an issue in his Rule 2119(f) statement, and the




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Commonwealth objects, then the issue is waived and this Court may not

review the claim.”)).

      In the argument section of the Anders brief, counsel sets forth

Appellant’s assertions “that the trial court erred by not giving adequate

consideration to her mental health issues and the negative impact that nine

months [of] incarceration would have on her mental state,” as well as “the

fact that Appellant is the sole caretaker of her six-year-old daughter.”

Anders Brief at 12, 13.    Additionally, counsel advises that “the trial court

did not get the benefit of seeing a full picture of the sentencing factors

because [Appellant’s] sister momentarily stepped out of the courtroom at

the time of Appellant’s sentencing and did not get the opportunity to speak

on Appellant’s behalf.” Id. at 13.

      To the extent Appellant asserts that the trial court did not adequately

consider mitigating circumstances, this Court has found that such a claim

does not raise a substantial question.     See Commonwealth v. Kane, 10

A.3d 327, 335–336 (Pa. Super. 2010) (finding claim “that the court gave

inadequate consideration to certain mitigating factors, does not raise a

substantial question”); see also Commonwealth v. Downing, 990 A.2d

788, 794 (Pa. Super. 2010) (concluding claim that trial court abused its

discretion in failing to adequately consider certain mitigating factors did not




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raise substantial question).        Accordingly, we deny Appellant’s petition for

allowance of appeal with regard to her first issue.3

       In the next issue presented, Appellant complains that she was denied

a fair and impartial jury in violation of her constitutional rights. According to

Appellant, Franklin County’s jury selection process does not produce a jury

pool that is “a fair cross section of the community” and is “indicative of

systematic exclusion of African Americans in jury selection pools.” Anders

Brief at 14–15.

       The trial court implied that this issue was waived: “This court has been

unable to locate any portion of the record where this issue was properly

raised and/or preserved. This court is unable to opine upon an issue that


____________________________________________


3  Even if Appellant had raised a substantial question, she would not have
obtained relief because the trial court had the benefit of a presentence
investigation report. “Where the sentencing judge had the benefit of a
presentence investigation report, it will be presumed that he or she was
aware of the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016)
(quoting Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super.
2013)).

      Here, the trial court advises us that, “[p]rior to sentencing both the
Commonwealth and [Appellant] filed sentencing memorandums, which this
court considered.      The court also had the benefit of a presentence
investigation report.... Further, the [c]ourt presided over the jury trial in
this case and heard the evidence presented against [Appellant].” Trial Court
Opinion, 5/8/17, at unnumbered 4, 6. Accordingly, Appellant’s argument
that the trial court failed to consider mitigating evidence would fail.
Finnecy, 135 A.3d at 1038; Clarke, 70 A.3d at 1287.



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was not raised, nor able to explain a decision that was never made.” Trial

Court Opinion, 5/8/17, at unnumbered 7.

      Upon review of the record, we agree with the trial court that Appellant

has waived this issue because she did not preserve it below. See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”). Thus, we shall not address the merits

of this challenge.

      The third issue presents Appellant’s claim of gender and racial

discrimination by law enforcement and the Commonwealth:

            Appellant contends that because she is an African
      American woman she was prosecuted more severely than Mr.
      Hartley, a white man. Both Appellant and Mr. Hartley were
      accused of and apprehended for alleged shoplifting. However,
      only Appellant was arrested and incarcerated whereas Mr.
      Hartley was never arrested and only charged with retail theft
      graded as a summary, even though the amount he allegedly
      stole was over $150.

Anders Brief at 15. Counsel deemed this challenge frivolous because “[t]he

difference in charging between the co-defendants appears to have been due

to differences in their criminal records and the amount of items in the carts

of each individual.” Id. at 19. Counsel also submitted that this issue was

waived. Id. The trial court deemed this issue waived, as well. Trial Court

Opinion, 5/8/17, at unnumbered 8.

      Upon review of the record, we dispose of this issue by adopting as our

own the trial court’s waiver analysis:




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      Again, this court has been unable to locate any portion of the
      record where this issue was properly preserved. . . . [T]here
      does not appear in the record any motion raising such a claim,
      either pre-trial or post-sentencing. There has been no evidence
      presented to this court on the issue now raised by [Appellant],
      and thus this [c]ourt cannot opine on the issue. Assuming
      [Appellant] and her co-defendant are of different races, and
      assuming they were, in fact, treated differently by the
      Commonwealth in its prosecution of the cases, there could be
      any number of race-neutral reasons for such. Whether such
      race-neutral reasons exist in this case is not known, because
      [Appellant] did not properly raise the issue for this court’s
      determination.

Trial Court Opinion, 5/8/17, at unnumbered 8.

      Finally, we have independently reviewed the record in order to

determine if appellate counsel’s assessment about the frivolous nature of the

present   appeal   is    correct.   Tukhi,     149   A.3d   at   886;   see   also

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) (after

determining that counsel has satisfied the technical requirements of Anders

and Santiago, this Court must conduct an independent review of the record

to determine if there are additional, non-frivolous issues overlooked by

counsel). After review of the issues raised by counsel on Appellant’s behalf

and our independent review of the record, we conclude that an appeal in this

matter is frivolous.    Accordingly, we grant appellate counsel permission to

withdraw and affirm the judgment of sentence.

      Application to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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