J-S22022-19; J-S22023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    COLLEEN KOWALSKI                           :
                                               :
                       Appellant               :   No. 1700 MDA 2018

      Appeal from the Judgment of Sentence Entered September 13, 2018
     In the Court of Common Pleas of Bradford County Criminal Division at
                       No(s): CP-08-CR-0000834-2015

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    COLLEEN KOWALSKI                           :
                                               :
                       Appellant               :   No. 1701 MDA 2018

      Appeal from the Judgment of Sentence Entered September 13, 2018
     In the Court of Common Pleas of Bradford County Criminal Division at
                       No(s): CP-08-CR-0000835-2015



BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 27, 2019

       Appellant, Colleen Kowalski, appeals from the Judgments of Sentence

entered in the Bradford County Court of Common Pleas at Docket Numbers

834-2015 and 835-2015 on September 13, 2018.1              On appeal, Appellant

____________________________________________


1We have consolidated the appeals at Nos. 1700 MDA 2018 and 1701 MDA
2018 sua sponte.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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challenges the discretionary aspects of her sentence. Appellant’s counsel has

filed a Brief and Petition to Withdraw pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). After careful review, we affirm Appellant’s Judgments of Sentence and

grant counsel’s Petition to Withdraw as Appellate Counsel.

        A detailed recitation of the underlying facts is not necessary to our

disposition. Briefly, on March 15, 2016, Appellant entered a guilty plea to

Criminal Mischief2 at Docket Number 834-2015. On May 19, 2016, the trial

court sentenced her to a 24-month term of probation.

        On May 27, 2016, at a separate docket—Docket Number 835-2015—a

jury convicted Appellant of Resisting Arrest and Disorderly Conduct, and the

court convicted her of Harassment.3 On August 21, 2016, the court sentenced

her to a term of 71 days’ incarceration followed by 18 months of county

intermediate punishment.           The court ordered the sentences at Docket

Numbers 834-2015 and 835-2015 to run concurrently.4

        On November 14, 2017, the Bradford County Probation Department filed

a Petition for Revocation of Probation alleging that Appellant had failed to: (1)

report for probation meetings; (2) schedule drug and alcohol and mental

____________________________________________


2   18 Pa.C.S. § 3304(a)(5).

3   18 Pa.C.S. §§ 5104; 5503(a); and 2709(a)(1), respectively.

4 Thus, the court sentenced Appellant to an aggregate term of 71 days’
incarceration, followed by 18 months’ county intermediate punishment,
followed by 24 months’ probation.

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health evaluations; (3) report for three drug screenings; and (4) document

community service hours. Appellant failed to appear at a scheduled hearing

on the Petition and, on January 8, 2018, the court issued a bench warrant for

her arrest.

        On September 18, 2018, the Bradford County Probation Department

filed an Addendum Petition alleging that Appellant failed to: (1) maintain

contact with the probation department; (2) make payments towards

collections; and (3) appear for every drug and alcohol screening except one.

        Police arrested Appellant on the bench warrant and, on September 13,

2018, Appellant waived her Gagnon I and Gagnon II5 hearings. That same

day, the court revoked her probation and her county intermediate

punishment. The revocation court resentenced Appellant at Docket Number

834-2015 to 10 days’ to one month incarceration and at Docket Number 835-

2015 to 75 days’ to 5 months’ incarceration.6 The court credited Appellant

with 74 days’ time served. Appellant did not file a Post-Sentence Motion from

her Judgment of Sentence.

        This timely appeal followed. Both Appellant and the revocation court

complied with Pa.R.A.P 1925.           In her Rule 1925(b) Statement, Appellant

claimed her revocation sentence was “unjust.”


____________________________________________


5   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

6Thus, the court sentenced Appellant to an aggregate revocation sentence of
85 days’ to 6 months’ incarceration.

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      On April 2, 2019, counsel filed an Anders Brief purporting to challenge

discretionary aspects of Appellant’s sentence. Anders Brief at 8. In addition,

counsel has filed an Application to Withdraw as Counsel.

      “When faced with a purported Anders brief, this Court may not 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) (en banc).     Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

      (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.

      In addition, counsel 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.’”



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Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (quoting

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).

      Counsel has complied with the requirements of Anders as articulated in

Santiago. Namely, he has included a summary of the relevant factual and

procedural history; referred to the portions of the record that could arguably

support Appellant’s claims; and set forth his conclusion that Appellant’s appeal

is frivolous. He has explained his reasoning and supported his rationale with

citations to the record as well as pertinent legal authority.     Counsel has

supplied Appellant with a copy of his Anders Brief and a letter explaining the

rights enumerated in Nischan.        See Letter appended to Application to

Withdraw. Accordingly, counsel has complied with the technical requirements

for withdrawal.

      Having addressed counsel’s technical compliance with Anders, we will

address the substantive issues raised by counsel.       In addition, we must

conduct “a simple review of the record to ascertain if there appear on its face

to be arguably meritorious issues that counsel, intentionally or not, missed or

misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.

2018) (en banc).

      In her issue, Appellant purports to challenge discretionary aspects of

her sentence.     See Anders Brief at 8 (suggesting Appellant’s sentence is

“excessive and unjust”).

      A challenge to discretionary aspects of a sentence is not reviewable as

a matter of right.    Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.

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Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction by,

inter alia, preserving a challenge at sentencing or in a post-sentence motion.

Id.   “Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to modify

the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).     Here, Appellant did not preserve this challenge at her

sentencing hearing or thereafter in a Post-Sentence Motion. Accordingly, she

has waived any challenge to discretionary aspects of her sentence.         See

Leatherby, supra; Griffin, supra.

      When an appellant fails to raise an issue before the trial court and has,

thus, waived the issue on direct appeal, the courts consider that issue

“frivolous” for purposes of an Anders analysis.      See Commonwealth v.

Tukhi, 149 A.3d 881, 888–89 (Pa. Super. 2016); see also Commonwealth

v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (“Having been waived,

pursuing this matter on direct appeal is frivolous.”). Following our review of

the issue purportedly raised by Appellant in counsel’s Anders Brief, we agree

with counsel that this appeal is wholly frivolous.   In addition, following an

independent review of the record, we discern no arguably meritorious issues

that warrant further consideration.        See Dempster, supra at 272.

Accordingly, we grant counsel’s Application to Withdraw as Counsel and affirm

Appellant’s Judgment of Sentence.

      Application to Withdraw as Counsel granted; Judgment of Sentence

affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




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