J-S56034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARISA PETERS,

                            Appellant                 No. 599 MDA 2014


             Appeal from the Judgment of Sentence March 19, 2014
              in the Court of Common Pleas of Lackawanna County
                Criminal Division at No.: CP-35-CR-0002534-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 26, 2014

        Appellant, Marisa Peters, appeals from the judgment of sentence

imposed following her entry of a guilty plea to theft by unlawful taking.1

Counsel for Appellant has petitioned to withdraw on the ground that



to withdraw and affirm the judgment of sentence.

        On November 27, 2013, Appellant pleaded guilty to the above-stated

offense.    In exchange for this plea, the Commonwealth nolle prossed the

remaining charges brought against Appellant, specifically, access device


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921(a).
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fraud, receiving stolen property, and theft by deception.2 The charges stem



Pisano, by an ATM

her drug addiction. At the time Appellant made this withdrawal, she lived in



trial court, after considering a pre-sentence investigation (PSI) report and

hearing from Ms. Pisano and Appellant, sentenced Appellant to a term of not

less than three nor more than eleven and one-

sentence in the aggravated range.3             On March 24, 2014, the trial court

denied Ap                                                             See Order,

3/24/14); see also Pa.R.Crim.P. 720(A)(1). This timely appeal followed.4

        On July 2, 2014, counsel for Appellant filed an Anders5 brief and a

petition to withdraw as counsel stating her belief that this appeal is

____________________________________________


2
    18 Pa.C.S.A. §§ 4106(a)(1), 3925(a), and 3922(a)(1), respectively.
3

supervision in Lackawanna County for another theft charge. (See N.T.
Sentencing, 3/19/14, at 3). In that cas
probation and sentenced her to a term of not less than six nor more than

imposed in the instant case. (See id. at 7).
4
  Pursuant to the trial
statement of errors on April 23, 2014. The court filed a Rule 1925(a)
opinion on June 10, 2014. See Pa.R.A.P. 1925.
5
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).



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meritless. (See Petition to Withdraw as Counsel, 7/02/14, at unnumbered



enclosing a copy of the Anders brief, informing her of the petition to

withdraw and advising her of her right to retain new counsel or proceed with

the appeal pro se. (See Letter from Donna M. De Vita, Esq. to Appellant,

7/02/14, at unnumbered page 1). Appellant has not responded.

     [I]n the Anders
     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


     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, supra at 361.

         Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any


         If counsel does not fulfill the aforesaid technical
     requirements of Anders, this Court will deny the petition to
     withdraw and remand the case with appropriate instructions
     (e.g., directing counsel to either comply with Anders or file an

     petition and brief satisfy Anders, we will then undertake our
     own review of the appeal to determine if it is wholly frivolous. If
     the appeal is frivolous, we will grant the withdrawal petition and
     affirm the judgment of sentence. However, if there are non-
     frivolous issues, we will deny the petition and remand for the




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Commonwealth                     , 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).

      In the instant case, counsel has complied with the Anders and

Santiago requirements.        She has submitted a brief that summarizes the

case, (see Anders Brief, at 5-6); referred to anything that might arguably

support the appeal, (see id. at 7-12); and set forth her reasoning and

conclusion that the appeal is frivolous, (see id. at 12).     See Santiago,

supra at 361.     Counsel has filed a petition to withdraw, sent Appellant a

letter advising that she concluded that there are no non-frivolous issues,

provided her with a copy of the Anders brief, and notified her of her right to

retain new counsel or proceed pro se

satisfy the requirements of Anders and Santiago, we will undertake our

own review of the appeal to determine if it is wholly frivolous.         See

           , supra at 1266.

      The Anders

                                                         Anders brief, at 4).

Appellant contends that the aggravated-range sentence is excessive because

her offense was non-violent and involved a small amount of money. (See

id. at 9, 11). Appellant asserts that, in imposing the sentence, the court did

not seriously consider her addiction issues or analyze whether she is a

danger to the community at large. (See id. at 11).



However,

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            Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.

2011) (citation omitted).


           Before we reach the merits of this [issue], we must engage
     in a four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved h[er] issue; (3) whether

     relied upon for allowance of appeal with respect to the
     discretionary aspects of sentence [See Pa.R.A.P. 2119(f)]; and
     (4) whether the concise statement raises a substantial question
     that the sentence is appropriate under the sentencing code. . . .
     [I]f the appeal satisfies each of these four requirements, we will
     then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citations and quotation marks

omitted).

     In the instant case, Appellant has complied with the first three

requirements because she filed a timely notice of appeal, preserved her

claim in a timely post-sentence motion, and the Anders brief contains a

Rule 2119(f) statement. (See Anders Brief, at 8-9). With respect to the

fourth requirement:

           The determination of what constitutes a substantial
     question must be evaluated on a case-by-case basis.         A
     substantial question exits only when the appellant advances a

     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. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).



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imposing an aggravated range sentence without consideration of mitigating

                                                Commonwealth v. Felmlee,

828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (citation omitted); see

also Commonwealth v. Fullin, 892 A.2d 843, 849 (Pa. Super. 2006)

(concluding that appellant raised substantial question where he argued that,

in imposing aggravated-range sentence, court failed to consider his remorse

and efforts at rehabilitation).

to the discretionary aspects of her sentence on the merits.

      Our standard of review is as follows:

      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. An abuse of discretion is
      more than just an error in judgment and, on appeal, the trial
      court will not be found to have abused its discretion unless the
      record discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-
      will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).



and can, on the appropriate record and for the appropriate reasons, consider



Commonwealth v. Hardy, 939 A.2d 974, 980 (Pa. Super. 2007) (citation

                                  Absent a manifest abuse of discretion, such




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sent                                    Commonwealth v. Stewart, 867 A.2d

589, 593 (Pa. Super. 2005) (citation omitted).

       Here, at the sentencing hearing, the trial court heard from Ms. Pisano,



boyfriend to stay at her home for approximately three months. (See N.T.

Sentencing, 3/19/14, at 2). Ms. Pisano explained that she gave Appellant

and her family food, money, and a place to stay, and that she was

                                          See id. at 2-3). Appellant expressed

remorse for her offense, advised the court that she took full responsibility for

her actions, and acknowledged that she needed help to overcome her drug

addiction.   (See id. at 3, 5-6).   Prior to imposing the sentence, the court

indicated that it had considered the PSI report, and it noted that Appellant

had been using drugs since she was fourteen years old. (See id. at 3, 5).

The court explained its rationale for the sentence to Appellant as follows:


       supervisory sentences with you that did not involve incarceration
       an

       at a case where you would steal from your own grandmother,
       that is really stooping pretty low. And your grandmother took
       not only you in but the rest of your family.

                                    *     *   *

             The sentence imposed on the theft by unlawful taking
       charge is in the aggravated range and that is because of the fact
       that the victim was, in fact, a close family member, and that
       charge was committed while you were on supervision with this
       [c]ourt.



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        . . . In fashioning this sentence, [the court] considered not only
        the nature and gravity of the offense but your own rehabilitative
        needs, your failures to adopt and adapt to the previous
        supervisory sentences that were imposed and the entire
        contents of this presentence file.

(Id. at 6, 8-9).

        Thus, the record reflects that the trial court was fully informed of



consideration Ms.                               -court sentencing statements,

and that it comprehensively set forth its reasons for the aggravated-range

sentence. Further, where, as here, the court reviewed a PSI

assume the sentencing court was aware of relevant information regarding



                                  Commonwealth v. Rhoades 8 A.3d 912,

919 (Pa. Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied,

132 S. Ct. 1746 (2012) (citation and internal quotation marks omitted).

        Upon review, we conclude that the trial court did not abuse its

                                              see Clarke, supra at 1287, and

that the issue raised in the Anders brief is frivolous.     Furthermore, after

independent review, we determine that there are no other non-frivolous

                                                                     , supra at

1266.

        Judgment of sentence affirmed.      Petition for leave to withdraw as

counsel granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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