J-S71025-16

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*

Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

KATHLEEN PATRICIA GREGG

Appellant No. 670 EDA 2016

Appeal from the Judgment of Sentence January 26, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-SA-0000846-2015

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 23, 2016

Appellant, Kathleen Patricia Gregg, appeals from the judgment of 

sentence entered in the Delaware County Court of Common Pleas, Criminal 

Division. Additionally, Appellant’s court-appointed counsel, J. Anthony Foltz, 

Esquire, has filed an application to withdraw as counsel pursuant to Anders 

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009).

The relevant facts and procedural history of the case are as follows. On

June 25, 2014, Appellant was cited for driving a vehicle while her license 

was suspended or revoked. To that end, Appellant entered a guilty plea to 

the summary traffic offense of driving while operating privilege is suspended 
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or revoked on December 9, 2015.1 That same day, the trial court sentenced 

Appellant to serve a term of 15 consecutive 48-hour periods of incarceration 

starting on January 6, 2016, followed by 30 days of electronic home 

monitoring, and to pay a $500.00 fine and court costs. 

Appellant reported for her first period of incarceration, but was turned 

away at the George W. Hill Correctional Facility because the prison records 

indicated Appellant’s report date was January 16, 2016. 

Appellant filed a motion for reconsideration and modification of 

sentence on January 11, 2016. The court held a hearing on the motion. 

Appellant requested that her sentence be reduced to a period of 60 days of 

electronic home monitoring because Appellant suffered from a number of 

maladies—diabetes, hypertension, anxiety, and a herniated disc. She cited 

concern that certain of her required medications, including Valium and 

OxyContin, may be prohibited in the prison. Alternatively, Appellant 

requested that the court modify Appellant’s sentence to reflect a different 

report date. 

The court denied Appellant’s request to reduce the sentence, but 

modified her report date. On January 26, 2016, the court re-sentenced 

Appellant to serve a term of 15 consecutive 48-hour periods of incarceration 

starting on February 10, 2016, at 10 a.m., followed by a period of 30 days of 

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1 75 Pa.C.S.A. § 1543(b)(1).
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electronic home monitoring, and to pay a $500.00 fine and court costs. 

Appellant did not file a post-sentence motion challenging her sentence. 

Instead, this timely appeal followed. 

As noted, Attorney Foltz has requested to withdraw and has submitted 

an Anders brief in support thereof contending the appeal is frivolous. The 

Pennsylvania Supreme Court has articulated the procedure to be followed

when court-appointed counsel seeks to withdraw from representing an 

appellant on direct appeal.

[I]n the Anders brief that accompanies court-appointed 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 case law, and/or statutes 

on point that have led to the conclusion that the appeal is 

frivolous. 

Santiago, 978 A.2d at 361. Once counsel has met his obligations, “it then 

becomes the responsibility of the reviewing court to make a full examination 

of the proceedings and make an independent judgment to decide whether 

the appeal is in fact wholly frivolous.” Id. at 355 n.5 (citation omitted). 

Attorney Foltz confirms that he sent a copy of that Anders brief as 

well as a letter explaining to Appellant that she has the right to proceed pro 

se or the right to retain new counsel. A copy of the letter is appended to 

Attorney Foltz’s petition. See Commonwealth v. Daniels, 999 A.2d 590, 
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594 (Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d 748, 749 

(Pa. Super. 2005). Appellant did not file a response. 

Counsel’s Anders brief sets forth a claim for the modification of 

Appellant’s sentence pursuant to 61 P.S. § 81. Illness of prisoner; 

removal for treatment, and cites to law interpreting § 81. The legislature, 

however, repealed § 81 in 2009, see Act 33 of Aug. 11, 2009, P.L. No. 147, 

No. 33, § 4, and replaced it with 42 Pa.C.S.A. § 9777. Transfer of inmates 

in need of medical treatment. The new statute brought new 

requirements. Compare § 81, with § 9777.

Oddly, counsel concedes the repeal of § 81 in his Anders brief, but 

relies exclusively on that statute. See Anders Brief, at 7. Be that as it may. 

Counsel’s reliance on the incorrect statute apart, the claim raised on appeal, 

that counsel finds frivolous, is that the trial court should have granted 

Appellant house arrest because of her medical problems. 

Appellant’s claim does not even implicate § 9777. Appellant was 

ordered to serve her sentence in Pennsylvania’s only privately operated 

prison, the George W. Hill Correctional Facility.2 Therefore, § 9777(a)(1) and 

(2) are inapplicable as those subsections require the petitioner to be 

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2 This facility is owned and operated by Community Education Centers, Inc. 

See http://www.cecintl.com/corrections-2/locations/pennsylvania-geo-whill/ (last visited November 3, 2016). See also George W. Hill Correctional 

Facility, Wikipedia, https://en.wikipedia.org/wiki/George_W._Hill_Correc 

tional_Facility (last visited November 3, 2016).
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“committed to custody of department.” 42 Pa.C.S.A. § 9777(a). 

“Department” is defined as “The Department of Corrections of the 

Commonwealth.” 42 Pa.C.S.A. § 9777(g) Definitions.

As Appellant was not “committed to custody of department” § 9777(b) 

is applicable. That subsection permits the petitioner to “have service of the 

sentence of confinement deferred and may be placed in a hospital, longterm care nursing facility or licensed hospice care location, subject to 

electronic monitoring....” Appellant seeks not placement in a hospital, longterm care nursing facility or hospice care location, but in her own home. 

Section 9777(b) is plainly inapplicable.

After examining the issue contained in the Anders brief and 

undertaking our independent review of the record, we concur with counsel’s 

assessment that the appeal is wholly frivolous. 

Judgment of sentence affirmed. Permission to withdraw as counsel 

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016
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