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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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