J-S13006-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

KYLE DAVEY CRIBBS,

Appellant No. 278 WDA 2018

Appeal from the Judgment of Sentence Entered January 17, 2018

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): 

CP-33-CR-0000624-2013

CP-33-CR-0000626-2013

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 07, 2019

Appellant, Kyle Davey Cribbs, appeals from the judgment of sentence of 

an aggregate term of 10 to 20 years’ imprisonment, imposed after the court 

revoked his probation based on a new conviction in an unrelated case. 

Counsel seeks permission to withdraw from further representation pursuant 

to Anders v. California, 386 A.2d 738 (Pa. 1967). Upon review, we find that 

counsel’s Anders brief satisfies the requirements set forth in 

Commonwealth v. Santiago, 97 A.2d 349 (Pa. 2009). Accordingly, we 

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

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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We glean the following relevant facts and procedural history from the 

record. On March 19, 2014, in the Court of Common Pleas of Jefferson County, 

Appellant entered a guilty plea to two charges of possession with intent to 

deliver a controlled substance1 at Nos. CP-33-CR-624-2013 and CP-33-CR626-2013. On that same date, Appellant was sentenced to an aggregate 

terms of 8 to 16 months’ state incarceration, followed by 20 months’ 

probation.

On August 9, 2016, after taking judicial notice of a guilty plea that 

Appellant entered regarding new charges in Clearfield County,2the trial court 

revoked Appellant’s probation and re-sentenced Appellant to 3 years’ 

probation at docket Nos. CP-33-CR-624-2013 and CP-33-CR-626-2013, with 

the sentences to run concurrent to each other and consecutive to the sentence 

imposed for a conviction in Jefferson County at CP-33-CR-143-2013. 

On January 17, 2018, after taking judicial notice of Appellant’s 

conviction and sentencing for new charges of endangering the welfare of 

children and simple assault at docket No. CP-33-CR-540-2017, the trial court 

revoked Appellant’s probation at docket Nos. CP-33-CR-624-2013 and CP-33-

CR-626-2013 and re-sentenced Appellant to an aggregate term of 10 to 20 

____________________________________________

1 35 P.S. § 780-113(a)(30).

2 On March 29, 2016, Appellant was charged with driving under the influence 

by the Dubois City Police Department from an incident that occurred on 

December 11, 2015. Additionally, Appellant admitted to the purchase and use 

of methamphetamines. 
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years’ imprisonment.3 Appellant filed a motion for reconsideration on January 

25, 2018, which was denied by the court on that same date. 

On February 15, 2018, Appellant filed a timely appeal, followed by a 

timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal.4 Appellant now presents the following issue for our 

review, via counsel’s Anders brief: “Whether the [t]rial [c]ourt committed an 

abuse of discretion when it revoked Appellant’s probation/parole and resentenced him to serve sentences aggregating to a minimum of ten (10) years 

and to a maximum of twenty (20) years in a state correctional institution given 

the circumstances of the case[?]” Anders Brief at 4. 

“When faced with a purported Anders brief, this Court may not review 

the merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Rojas, 875 A.2d 638, 639 (Pa. Super. 2005) 

(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 

1997)). 

____________________________________________

3 Appellant was re-sentenced to 21⁄2 to 5 years’ imprisonment at No. CP-33-

CR-624-2013, and to 71⁄2 to 15 years’ imprisonment at No. CP-33-CR-626-

2013. 

4 We recognize that our Supreme Court recently held that “the proper practice 

under Rule 341(a) is to file separate appeals from an order that resolves issues 

arising on more than one docket. The failure to do so requires the appellate 

court to quash the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977 

(Pa. 2018). The Court tempered its holding, however, by making it 

prospective only. The Walker opinion was filed on June 1, 2018; hence, this 

holding is not applicable in the instant matter, as Appellant filed his notice of 

appeal on February 15, 2018. 
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Court-appointed counsel who seeks to withdraw from representing 

an appellant on direct appeal on the basis that the appeal is 

frivolous 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) file a brief referring to anything that arguably might 

support the appeal but which does not resemble a “nomerit” letter to amicus curiae brief; and (3) furnish a copy 

of the brief to the [appellant] and advise the [appellant] of 

his or her right to retain new counsel or raise any additional 

points that he or she deems worthy of the court’s attention. 

Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998) 

(citation omitted). 

Rojas, 874 A.2d at 639. Appellant’s counsel has complied with these 

requirements. Counsel petitioned for leave to withdraw, and filed a brief 

satisfying the requirements of Anders, as discussed, infra. Counsel also 

provided a copy of the brief to Appellant, and submitted proof that he advised 

Appellant of his right to retain new counsel, proceed pro se, and/or to raise 

new points not addressed in the Anders brief. 

Our Supreme Court has held, in addition, that counsel must explain the 

reasons underlying his assessment of Appellant’s case and his conclusion that 

the claims are frivolous. Thus, counsel’s Anders brief must satisfy the 

following criteria before we may consider the merits of the underlying appeal:

[W]e hold that in the Anders brief that accompanies courtappointed 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 
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case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous. 

Santiago, 978 A.2d at 361. 

Upon review of the Anders brief submitted by Appellant’s counsel, we 

find it complies with the technical requirements of Santiago. Counsel’s 

Anders brief (1) provides a summary of the procedural history and facts of 

this case; (2) directs our attention, when applicable, to the portions of the 

record that ostensibly supports Appellant’s claim of error; (3) concludes that 

Appellant’s claim is frivolous; and (4) does so by citation to the record and 

appropriate/applicable legal authorities. Thus, we now examine whether 

Appellant’s claim is, indeed, frivolous. We also 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.” Com. V. 

Dempster, 187 A.3d 266, 277 (Pa. Super. 2018) (en banc). 

Appellant’s allegations relate to the discretionary aspects of his 

sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. 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 

[the] 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 [the]

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.[] § 9781(b).
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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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations 

and internal quotations omitted). 

Here, the record reflects that Appellant filed a timely notice of appeal, 

properly preserved his claim in his post-sentence motion, and counsel has 

included a Rule 2119(f) statement in his Anders brief in compliance with 

Pennsylvania Rules of Appellate Procedure.5 Thus, we proceed to determine 

whether Appellant has raised a substantial question to meet the fourth 

requirement of the four-part test outlined above. 

As we explained in Moury:

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. A substantial question 

exists 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.

Id. at 170 (citations and internal quotations omitted). 

Appellant maintains in his Rule 2119(f) statement that his revocation 

sentence is manifestly unreasonable “in that it was excessive and constituted 

too severe a punishment under the circumstances of the case and the 

probation violation....” Appellant’s Brief at 7. Appellant further avers that the 

reasons given by the trial court for the sentence do not justify the severity of 

____________________________________________

5 We recognize that where counsel files an Anders brief, we may review the 

issue even absent a Rule 2119(f) statement. See Commonwealth v. 

Ziegler, 112 A.3d 656, 661 (Pa. Super. 2015). 
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the sentence. Id. Based on the arguments presented in Appellant’s Rule 

2119(f) statement, and the case law on which he relies, we conclude that he 

has presented a substantial question for our review. See Commonwealth v. 

Simmons, 56 A.3d 1280, 1286 (Pa. Super. 2012) (quoting Commonwealth 

v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim that a sentence is 

manifestly excessive such that it constitutes too severe a punishment raises 

a substantial question.”)). 

Accordingly, we will review the merits of Appellant’s claim, mindful of 

the following standard of review:

Sentencing is a matter vested within the discretion of the trial 

court and will not be disturbed absent a manifest abuse of 

discretion. An abuse of discretion requires the trial court to have 

acted with manifest unreasonableness, or partiality, prejudice, 

bias, or ill-will, or such lack of support so as to be clearly 

erroneous. It is also now accepted that in an appeal following the 

revocation of probation, it is within our scope of review to consider 

challenges to both the legality of the final sentence and the 

discretionary aspects of an appellant’s sentence. 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) 

(citations omitted). Moreover, when we consider an appeal from a sentence 

imposed following the revocation of probation, 

[o]ur review is limited to determining the validity of the probation 

revocation proceedings and the authority of the sentencing court 

to consider the same sentencing alternatives that it had at the 

time of the initial sentencing. 42 Pa.C.S. § 9771(b). Also, upon 

sentencing following a revocation of probation, the trial court is 

limited only by the maximum sentence that it could have imposed 

originally at the time of the probationary sentence. 
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Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) 

(internal citation omitted). 

The reason for the trial court’s broad discretion in sentencing and the 

deferential standard of appellate review is that “the sentencing court is in the 

best position to measure various factors and determine the proper penalty for 

a particular offense based upon an evaluation of the individual circumstances 

before it.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal 

citation and quotation marks omitted). Our Supreme Court has recognized 

that the sentencing court’s “institutional advantage” is, perhaps, even “more 

pronounced in fashioning a sentence following the revocation of probation, 

which is qualitatively different than an initial sentencing proceeding.” 

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014). 

At initial sentencing, all of the rules and procedures designed to 

inform the court and to cabin its discretionary sentencing 

authority properly are involved and play a crucial role. However, 

it is a different matter when a defendant reappears before the 

court for sentencing proceedings following a violation of the mercy 

bestowed upon him in the form of a probationary sentence. For 

example, in such a case, contrary to when an initial sentence is 

imposed, the Sentencing Guidelines do not apply, and the 

revocation court is not cabined by Section 9721(b)’s requirement 

that “the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the 

offense as it relates to the impact on the life of the victim and on 

the community, and the rehabilitative needs of the defendant.” 

42 Pa.C.S. § 9721. See Commonwealth v. Reaves, ... 923 A.2d 

1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b) 

(Sentencing Guidelines do not apply to sentences imposed as 

result of revocation of probation)). 

Id. 
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Here, Appellant concedes that a period of incarceration was warranted, 

but he argues that the imposition of consecutive sentences with an aggregate 

term of 10 to 20 years’ imprisonment was manifestly unreasonable. 

Appellant’s Brief at 10. Appellant notes that Jefferson County Adult Probation 

recommended an aggregate sentence of 71⁄2 to 20 years’ imprisonment, and

he suggests that a shorter sentence would have been more than adequate 

protection of the public. Id.

Having carefully reviewed the record of Appellant’s sentencing 

proceeding, we ascertain no abuse of discretion by the court. Initially, we 

stress that the court had the benefit of a pre-sentence investigation report

and reviewed that report prior to the sentencing proceeding. N.T. Sentencing, 

1/17/17, at 4-5. Additionally, the trial court indicated that it took into 

consideration the fact that the mother of Appellant’s children (“Amanda”) and 

Appellant’s father both obtained protection from abuse (“PFA”) orders against 

Appellant. Id. at 5. While in jail, Appellant repeatedly attempted to contact 

Amanda and his father in violation of the PFA orders. Id. The court stated 

that these actions demonstrated Appellant’s “lack of care and concern to any 

of the court’s objectives or to any of the court’s orders or rules[,]” and 

concluded, thus, that boot camp or the State Intermediate Punishment 

program (“SIP”) would not be appropriate. Id. The court further addressed 

Appellant from the bench:

[T]his type of assaultive behavior and threatening behavior, 

getting PFA[] [orders] from your family members, from the people 
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you love, that it shows you could and are potentially dangerous to 

individuals, especially those closest to you.

So[,] I think ... that the maximum sentence is deserved and [is] 

also necessary to protect the public and your own family against 

you and to give you some time to reach statistical maturity age 

where perhaps you could control your own behaviors, which you 

haven’t been able to do on the street since you were a juvenile. 

Id. at 5-6. 

Additionally, the trial court summarized its reasoning in support of 

Appellant’s post-revocation sentence in its Rule 1925(a) opinion, in which it 

so aptly opined:

Before the [c]ourt for re-sentencing, [Appellant] purported 

to take responsibility for his actions and, indicating his interest in 

being rehabilitated, asked it to consider SIP or motivational boot 

camp rather than the longer state sentence being recommended 

by Probation. His history and demeanor, however, suggested that 

he was only saying what he thought might result in a more 

favorable outcome. In that regard, his conduct at the jail while 

awaiting disposition at CP-33-CR-540-2017[,] and his devil-maycare attitude during proceedings related to that case[,] were far 

more instructive than the words he uttered on January 17, 2018. 

Faced with a young man whose mindset and criminal 

proclivities had been unaffected by his previous dealings with the 

criminal justice system, therefore, the [c]ourt imposed a 

maximum term of incarceration. Certainly[,] a prior postrevocation sentence (with a boot camp recommendation) had not 

proven effective, ... nor had the drug rehab to which he repeatedly 

referred in his pro se filings. An escalated sentence was thus 

warranted—one that would keep him sequestered from a 

community full of potential victims for the longest possible period 

of time while he matured and learned self-control. With the credit 

he was due for time served, though, it was also a sentence that 

offered him the potential for release within a few years. 

Trial Court Opinion, 5/31/18, at 1-2 (citations to record and footnote omitted). 
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To the extent that Appellant contends that the court failed to explain its 

reasoning for imposing a harsher sentence on Appellant post-revocation, we 

note that:

[F]ollowing revocation, a sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence or 

specifically reference the statutes in question. Simply put, since 

the defendant has previously appeared before the sentencing 

court, the stated reasons for a revocation sentence need not be 

as elaborate as that which is required at initial sentencing. The 

rationale for this is obvious. When sentencing is a consequence 

of the revocation of probation, the trial judge is already fully 

informed as to the facts and circumstances of both the crime and 

the nature of the defendant....

Pasture, 107 A.3d at 28. The Pasture Court further emphasized that “a trial 

court does not necessarily abuse its discretion in imposing a seemingly 

harsher post-revocation sentence where the defendant received a lenient 

sentence and then failed to adhere to the conditions imposed on him.” Id. 

Based on our review of the record, we are satisfied with the justification 

provided for the sentence imposed on Appellant post-revocation, and we 

discern no abuse of discretion by the trial court. 

Finally, our review of the record reveals no other potential, non-frivolous 

issues which Appellant could raise on appeal. As such, we agree with counsel 

that a direct appeal in this case is wholly frivolous. Accordingly, we grant 

counsel’s motion to withdraw.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/7/2019