J-S47019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PHYLLIS MCALLISTER

Appellant No. 1613 MDA 2015

Appeal from the Judgment of Sentence August 11, 2015

in the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0003155-2014

BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016

Appellant Phyllis McAllister (“Appellant”) appeals from the August 11, 

2015 judgment of sentence entered in the Luzerne County Court of Common 

Pleas following her guilty plea convictions for criminal conspiracy to deliver a 

controlled substance1and possession of a controlled substance with intent to 

deliver (“PWID”).2 Appellant’s counsel has filed an Anders3 brief, together 

with a petition to withdraw as counsel. We affirm the judgment of sentence 

and grant counsel’s petition to withdraw.

____________________________________________

1 18 Pa.C.S. § 903.

2 35 P.S. § 780-113(a)(30).

3 Anders v. California, 386 U.S. 738 (1967).
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On May 22, 2015, Appellant pleaded guilty to the aforementioned 

charges. On August 11, 2015, the trial court sentenced Appellant to 18 to 

36 months’ incarceration on the conspiracy conviction and a concurrent term 

of 18 to 36 months’ incarceration on the PWID conviction. Appellant lodged 

no objections at sentencing, and did not file post-sentence motions. 

Appellant filed a notice of appeal on September 10, 2015, and a 

Pa.R.A.P. 1925(b) statement on October 13, 2015. The trial court filed its 

Pa.R.A.P. 1925(a) opinion on November 6, 2015.4

As previously noted, Appellant’s counsel has filed an application 

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.

5

 Before 

addressing the merits of Appellant’s underlying issue presented, we must 

first pass on counsel’s petition to withdraw. 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 

____________________________________________

4 The Commonwealth did not file a brief with this Court.

5 978 A.2d 349 (Pa.2009).
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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. Counsel must also provide the appellant with a 

copy of the Anders brief, together with a letter that advises the appellant of 

his or her 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). 

Substantial compliance with these requirements is sufficient. 

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After 

establishing that the antecedent requirements have been met, this Court 

must then make an independent evaluation of the record to determine 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm, 

903 A.2d 1244, 1246 (Pa.Super.2006).

Instantly, counsel contemporaneously filed a petition to withdraw as 

counsel with the Anders brief. The petition states counsel’s determination 

that Appellant’s appeal is wholly frivolous and that no meritorious issues 

exist. See Petition to Withdraw As Counsel, ¶ 3. The petition further 

explains that counsel notified Appellant of the withdrawal request and sent 

Appellant a letter explaining her right to proceed pro se or with new, 
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privately-retained counsel.6 See id. at ¶ 4; see also Letter to Appellant, 

March 17, 2016. In the Anders brief, counsel provides a summary of the 

facts and procedural history of the case with citations to the record, refers to 

evidence of record that might arguably support the issue raised on appeal, 

provides citations to relevant case law, and states his conclusion that the 

appeal is frivolous and his reasons therefor. See Anders Brief, pp. 4-9. 

Accordingly, counsel has substantially complied with the requirements of 

Anders and Santiago.

As Appellant filed neither a pro se brief nor a counseled brief with new, 

privately-retained counsel, we review this appeal based on the issue of 

arguable merit raised in the Anders brief:

1. Whether the trial court abused its discretion in sentencing the 

Appellant[?]

Anders Brief, p. 1.

This claim raises a challenge to the discretionary aspects of Appellant’s 

sentence. “Challenges to the discretionary aspects of sentencing do not 

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 

A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a 

discretionary challenge, an appellant must comply with the following 

requirements:

____________________________________________

6 The letter further makes clear that counsel supplied Appellant with a copy 

of the Anders brief. See Letter to Appellant, January 29, 2016.
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An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (1) whether 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 

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.

Allen, 24 A.3d at 1064.

Here, Appellant filed a timely notice of appeal. Further, Appellant’s 

brief includes a concise statement of the reasons relied upon for allowance of 

appeal pursuant to Pa.R.A.P. 2119(f).7 See Appellant’s Brief, p. 3. 

However, Appellant did not preserve his issue by lodging an objection at 

sentencing or by filing a post-sentence motion for reconsideration of 

sentence. Therefore, because she did not properly preserve her 

discretionary aspects of sentencing claim, Appellant waived this claim for 

review.

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7 Appellant’s Rule 2119(f) statement states, in its entirety:

The trial court refusing the Appellant entry into the Intermediate 

Punishment Program is a substantial question requiring a 

discretionary review. 42 Pa.C.S.[] § 9781(b); Pa.R.A.P. 2119(f).

Appellant’s Brief, p. 3. Although this Rule 2119(f) statement is meager and 

nearing insufficiency, the Commonwealth did not object. Therefore, we may 

overlook the statement’s deficiencies. See Commonwealth v. Gould, 912 

A.2d 869, 872 (quoting Commonwealth v. Bonds, 890 A.2d 414, 418 

(Pa.Super.2005)) (“[i]n the absence of any objection from the 

Commonwealth, we are empowered to review claims that otherwise fail to 

comply with Rule 2119(f)”) (internal brackets omitted).
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Further, even had Appellant properly preserved her issue, it does not 

present a substantial question for review. “A substantial question will be 

found where the defendant advances a colorable argument that the sentence 

imposed is either inconsistent with a specific provision of the [sentencing] 

code or is contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.Super.2013) 

(internal citations omitted); see also 42 Pa.C.S. § 9781(b). “We determine 

whether a particular case raises a substantial question on a case-by-case 

basis.” Id. A bald or generic assertion that a sentence is excessive does 

not, by itself, raise a substantial question justifying this Court’s review of the 

merits of the underlying claim. Id.; see also Commonwealth v. Harvard, 

64 A.3d 690, 701 (Pa.Super.2013). Further, “where a sentence is within the 

standard range of the guidelines, Pennsylvania law views the sentence as 

appropriate under the Sentencing Code.” Commonwealth v. Moury, 992 

A.2d 162, 171 (Pa.Super.2010).

In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial 

court abused its discretion by refusing her request to serve her sentence on 

intermediate punishment, instead of total confinement. See Appellant’s 

Brief, p. 3. Appellant does not articulate how this particular argument either 

violates the Sentencing Code or represents a deviation from the fundamental 

norms of sentencing. Hence, Appellant has not presented a substantial 

question for review.
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Further, even had Appellant stated a substantial question for review, 

we would affirm on the merits. We review discretionary aspects of sentence 

claims under the following standard of review:

[S]entencing is vested in the discretion of the trial court, 

and will not be disturbed absent a manifest abuse of that 

discretion. An abuse of discretion involves a sentence which was 

manifestly unreasonable, or which resulted from partiality, 

prejudice, bias or ill will. It is more than just an error in 

judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006) 

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did 

not abuse its discretion. Instead, the trial court imposed a sentence that 

was consistent with the protection of the public, took into account the 

gravity of the offense as it related to the impact on the life of the victim and 

on the community, and considered the Appellant’s rehabilitative needs, as 

required by 42 Pa.C.S. § 9721(b). 

In imposing sentence, the trial court considered the sentencing 

guidelines, the pre-sentence investigation report,8the arguments of counsel, 

and the testimony of Appellant. N.T. 8/11/2015, pp. 2-7. The trial court 

____________________________________________

8 Where a sentencing court had the benefit of a pre-sentence investigation 

report, we assume the sentencing court was aware of relevant information 

contained therein and weighed that information along with any mitigating 

factors. Moury, 992 A.2d at 171.
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then sentenced Appellant to a standard range sentence. Id. at 5-7. We find 

no abuse of discretion in the trial court’s sentencing.

Given the foregoing, Appellant has not properly preserved his claim for 

review by this Court. Further, she has not raised a substantial question 

regarding the appropriateness of her sentence. Finally, even if she had 

raised a substantial question for review, her claim would fail on the merits. 

Accordingly, we agree with counsel that Appellant’s claim is wholly frivolous. 

Moreover, our independent review of the record has revealed no other 

preserved issues of arguable merit. Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2016