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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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Power of Attorney was revoked on November 3, 2011, when 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