J-S33015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHARON JACOBOSKY,
Appellant No. 2004 MDA 2016
Appeal from the Judgment of Sentence October 20, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003949-2013
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 09, 2017
Sharon Jacobosky (Appellant) appeals from the judgment of sentence
of 9 to 48 months’ incarceration and the payment of restitution, imposed
after Appellant pled guilty to one count of theft by failure to make required
disposition of funds, 18 Pa.C.S. § 3927(a). Appellant challenges the court’s
sentencing her to a state correctional facility rather than allowing her to
enter the county intermediate punishment program or sentencing her to
probation. Additionally, Appellant’s counsel, Matthew P. Kelly, Esq., 1 has
filed a petition to withdraw his representation of Appellant pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Attorney Kelly was appointed to represent Appellant on appeal.
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Santiago, 978 A.2d 349 (Pa. 2009).2 After careful review, we affirm
Appellant’s judgment of sentence and grant counsel’s petition to withdraw.
Appellant’s conviction was based on the following facts: namely, that
while acting as a caretaker for the 94-year-old victim, Clementine Moseman,
and her disabled daughter, and having the victim’s Power of Attorney,
Appellant used that Power of Attorney to make unauthorized withdrawals
from the victim’s bank and investment accounts. Specifically, the court
explained:
[Appellant], who suffers from several health-related conditions,
became Moseman’s Power of Attorney on October 22, 2009. The
Power of Attorney was revoked on November 3, 2011, when
Moseman’s niece, Evelyn Hannon, was made Power of Attorney.
Hannon discovered a discrepancy in Moseman’s bank records
and made a complaint of financial exploitation against
[Appellant] with the Dallas Borough Police Department on
December 9, 2011. After an investigation and review of
Moseman’s bank and investment accounts during the time period
that [Appellant] had Power of Attorney, the Commonwealth
alleged a systematic liquidation of Moseman’s investments and
that a dramatic increase in checks negotiated by [Appellant] had
taken place. Linda Mill, a Certified Fraud Examiner for the
Institute on Protective Services at Temple University, examined
the accounts and conducted a forensic audit. Based upon the
results of her examination, Linda Mill found evidence that
[Appellant] received $258,538.30 of Moseman’s funds between
January 1, 2009 and November 4, 2011.
Trial Court Opinion (TCO), 2/15/17, at 1-2.
____________________________________________
2
The Commonwealth has chosen not to submit a brief, indicating that it
agrees with Attorney Kelly’s position that no non-frivolous issues are
apparent in this case.
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Following Appellant’s entry of her guilty plea and her sentencing,
Appellant filed a timely notice of appeal. She also timely complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) statement in which she raised
the following issue: “[Appellant] alleges that the court abused its discretion
in failing to sentence her to a county intermediate punishment program for
which she is eligible or in the alternative, probation due to [Appellant’s] poor
physical health.” Appellant’s Rule 1925(b) Statement, 12/19/16.
As indicated supra, Attorney Kelly has filed with this Court a petition to
withdraw and an Anders brief, asserting that the issue Appellant seeks to
raise is frivolous, and that she has no other non-frivolous issues that counsel
could argue on appeal.
This Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The 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.
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Santiago, 978 A.2d at 361. Counsel also 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.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant case, Attorney Kelly’s Anders brief substantially
complies with the above-stated requirements. Namely, he includes a brief
summary of the relevant factual and procedural history, and provides
citations to the record. He refers to a portion of the record that could
arguably support Appellant’s claim, and he sets forth his conclusion that
Appellant’s issue is frivolous. He explains his reason for reaching that
determination, which he supports with legal authority. Attorney Kelly also
states in his petition to withdraw that he has supplied Appellant with a copy
of his Anders brief, and he attaches a letter directed to Appellant in which
he informs her of the rights enumerated in Nischan. Therefore, we
conclude that counsel has sufficiently complied with the technical
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requirements for withdrawal. We now independently review the record to
determine if Appellant’s sentencing claim is frivolous, and to ascertain
whether there are other, non-frivolous issues Appellant could pursue on
appeal.
According to Attorney Kelly, Appellant’s claim is a challenge to the
discretionary aspects of her sentence, i.e., whether the court abused its
discretion in sentencing her to a standard range sentence in a state
correctional facility instead of allowing her to participate in the intermediate
punishment program.3 Specifically, in the Anders brief, Attorney Kelly
recognizes that to challenge the discretionary aspects of sentencing there is
no entitlement to appellate review as of right. We agree and note that in
Commonwealth v. Kimbrough, 872 A.2d 1244 (Pa. Super. 2005), this
Court explained:
A challenge to the discretionary aspects of a sentence
requires an appellant to set forth a separate, concise statement
of the reasons relied upon for allowance of appeal. Pa.R.A.P. …
2119(f)[.] In addition, the appellant must raise a substantial
question as to the appropriateness of the sentence, which would
permit us to accept the appeal as to this issue.
Commonwealth v. Boyer, 856 A.2d 149, [152] (Pa. Super.
2004).
. . .
____________________________________________
3
The Anders brief contains a concise statement of the reason relied upon
for allowance of appeal as to the discretionary aspects of Appellant’s
sentence; thus, she has complied with the requirements of Pa.R.A.P.
2119(f).
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Whether a substantial question has been raised that a sentence
is inappropriate under the Sentencing Code must be evaluated
on a case-by-case basis. Commonwealth v. Titus, 816 A.2d
251 (Pa. Super. 2003). A substantial question exists where the
brief sets forth a colorable argument that the sentence violates a
particular provision of the Sentencing Code or is contrary to the
fundamental norms underlying the sentencing scheme.
Commonwealth v. Reynolds, 835 A.2d 720 (Pa. Super. 2003).
After careful review and for the reasons that follow, we find that
because the sentencing judge imposed sentences that were
within the standard range of the applicable guidelines, and that
he fully stated his reasons for imposing those sentences, no
substantial question has been presented.
Id. at 1262-63 (emphasis in original).
Here, Attorney Kelly concludes that “[u]pon review of the record,
counsel cannot opine that the sentence violates the Sentencing Code or
represents a deviation from said Code, thus[,] no abuse of discretion exists
and there is no substantial [question] for this [C]ourt to review.” Anders
brief at 7. Furthermore, we recognize that in its Pa.R.A.P. 1925(a) opinion,
the trial court noted Appellant’s health issues, but stated:
In this case, we reviewed the PSI and heard from
[Appellant] and the niece of the now deceased victim. This
[c]ourt specifically found that, although [Appellant] was
statutorily eligible for an IPP sentence “it would be inappropriate,
under the circumstances of the case, as it would diminish the
seriousness of the offense in this case.” []Sentencing Hearing
N.T. at 14, 1, 5-7.[] Further this [c]ourt explained its reasons
for the sentence on the record, emphasizing that [Appellant] was
in a position of trust with two elderly victims. Id. at 14, 1, 11-
12. We also particularly noted that [Appellant] has shown
absolutely no remorse. Id. at 14, 1, 15.
TCO at 5.
In light of the record, we conclude that Appellant has failed to assert a
substantial question. Thus, we agree with Attorney Kelly that the issue
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Appellant seeks to assert on appeal is frivolous, and our independent review
of the record does not reveal any other, non-frivolous issues he could
present on Appellant’s behalf. Accordingly, we grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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Com. v. Jacobosky, S.
Combined Opinion