J-S39041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAUL COSME, JR.

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 413 MDA 2023

Appeal from the Judgment of Sentence Entered February 22, 2023

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0000132-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 14, 2023

Raul Cosme, Jr. (Appellant), appeals from the judgment of sentence 

entered in the Lackawanna County Court of Common Pleas, following his guilty 

plea to criminal attempt to commit indecent assault and false imprisonment.1 

Contemporaneous with this appeal, Appellant’s counsel, Kurt T. Lynott, 

Esquire (Counsel), has filed a petition to withdraw from representation and an 

Anders brief. The Anders2 brief raises a challenge to the discretionary 

aspects of sentencing in light of mitigating factors.3 For the reasons below, 

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

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1 18 Pa.C.S. §§ 901(a), 3126(a)(1), 2903(a), respectively. 

2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).

3 The Commonwealth has filed a letter, stating it would not file a brief.
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On September 30, 2022, Appellant pled guilty to one count each of 

attempted indecent assault and false imprisonment. He was represented by 

Counsel. The underlying incident occurred on January 7, 2021, at the Price 

Chopper in Taylor Borough, Lackawanna County where Appellant and the 

victim, Marcy Drucker (the victim), both worked. Trial Ct. Op., 5/11/23, at 1

(unpaginated).

We glean the following factual summary from the trial court opinion. 

[The victim] stated that around 7:00 p.m. she was working in the 

Food Court at Price Chopper when . . . Appellant . . . began acting 

inappropriately toward her, stating that he wanted to see her 

naked and showing her inappropriate, pornographic videos. The 

victim relayed that Appellant, while he exposed himself, also 

asked her if she could put his penis in her mouth. Appellant then 

grabbed the victim’s hand and tried to force her to touch his penis, 

but the victim refused, stating that she was uncomfortable.

Later that same evening, the victim went to the second floor 

of the building to use the Women’s Restroom. While she was 

sitting on the toilet with her underwear down, Appellant opened 

the stall and, while fondling his exposed penis, stated that “it 

wouldn’t take longer than five minutes.” Appellant then picked 

the victim up off the toilet, tried to kiss her, and ultimately tossed 

her to the floor, all while his erect penis was still exposed. At that 

time, another female employee entered the Women’s Restroom, 

causing Appellant to flee . . . .

Id. at 1-2 (record citations omitted & paragraph break added). 

On February 22, 2023, the trial court conducted a sentencing hearing. 

A pre-sentence investigation report (PSI) was filed; Appellant reviewed it and 
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raised no objection nor exception.4 N.T. Sentence, 2/22/23, at 5. The victim 

shared the gravity of Appellant’s actions and its lasting impact on her life. Id.

at 3. Further, the trial court noted Appellant’s prior record score of five. Id.

at 6. Appellant apologized for his conduct, and Counsel stated that he 

supports his family. Id. at 8. Additionally, Counsel noted that Appellant was 

treating for drugs or alcohol addiction. Id. at 6.

The trial court sentenced Appellant to: (1) 12 to 24 months’ 

imprisonment on attempt to commit indecent assault; and (2) 6 to 12 months 

on false imprisonment, to run consecutively. N.T., 2/22/23, at 9. Both 

sentences are within the standard range of the sentencing guidelines. Trial 

Ct. Op. at 4. Appellant was also ordered to comply with SORNA registration 

and notification requirements for a period of 15 years.5 N.T., 2/22/23, at 9.

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4 The Pennsylvania Rules of Criminal Procedure vests a sentencing judge with 

the discretion to order a PSI as an aid. Pa.R.Crim.P. 702(a)(1).

5 Pennsylvania Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 

9799.10 to 9799.42. Appellant’s conviction of attempted assault, under 

Subsection 3126(a)(1), is a Tier I offense, subjecting him to a 15-year 

registration. See 42 Pa.C.S. §§ 9799.14(b)(6), (22), 9799.15(a)(1).

Furthermore, we note Counsel stated a sexually violent predator (SVP) 

assessment was conducted and Appellant was deemed to be an SVP. N.T., 

2/22/23, at 5. In its opinion, the trial court stated it reviewed the SVP 

assessment submitted by the Sexual Offender’s Assessment Board. Trial Ct. 

Op. at 5. However, neither the opinion, nor any other filing in the certified 

record, indicate Appellant was indeed found to be an SVP.
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On February 23, 2023, Appellant timely filed a motion for 

reconsideration of sentence, which was denied by the trial court on the same 

day. Appellant filed a timely pro se notice of appeal on March 13, 2023.6 The 

trial court ordered Appellant to file a Pa.R.A.P 1925(b) statement, which was 

timely filed. The trial court opinion concludes the sentencing was “within the 

standard range of the sentencing guidelines and, given the gravity of the 

offense as well as Appellant’s prior record score, this Court does not believe 

that its sentence was unreasonable.” Trial Ct. Op. at 6. 

Counsel filed a petition to withdraw as counsel and a brief pursuant to 

Anders.

7

 Counsel attached a letter he sent to Appellant explaining his right 

to retain new counsel or proceed pro se.

This Court has stated:

[We] must first pass upon counsel’s petition to withdraw before 

reviewing the merits of the underlying issues presented[.]

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6

 Generally, “[w]here a litigant is represented by an attorney before the Court 

and the litigant submits for filing a petition, motion, brief or other type of 

pleading in the matter, it shall not be accepted for filing, but noted on the 

docket and forwarded to counsel of record.” Commonwealth v. Williams, 

151 A.3d 621, 623 (Pa. Super. 2016), quoting Pa. Code § 65.24). However, 

“[a] pro se notice of appeal received from the trial court shall be docketed, 

even in instances where the pro se [appellant] was represented by counsel in 

the trial court.” Id.

7 On July 19, 2023, this Court per curiam denied Counsel’s first Anders

petition and struck his Anders brief. The brief did not comply with Anders

requirements because Counsel neither referred to anything in the record that 

Counsel believed arguably supported the appeal, nor stated his reasons for 

concluding the appeal was frivolous. On August 9, 2023, Counsel filed a new

Anders petition and brief, which are presently before us for review.
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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.

Counsel also must provide a copy of the Anders brief to his client. 

[Attached to] 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. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014) 

(citations omitted).

“Once counsel has satisfied the above requirements, it is then this 

Court’s duty to conduct its own review of the trial court’s proceedings and 

render an independent judgment as to whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 

2007) (en banc) (citation omitted).

Instantly, Counsel has satisfied the technical requirements of Anders

and Santiago. In Counsel’s Anders brief, he summarizes the pertinent 
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factual and procedural history with citations to the record. Anders Brief at 5-

6. Counsel also states that after a conscientious review of the record and 

applicable law, he concludes the appeal is frivolous. Id. at 7. Counsel also 

attached to his petition a letter to Appellant meeting the notice requirements. 

See Orellana, 86 A.3d at 880. Therefore, the brief and petition to withdraw 

comply with the technical requirements of Anders and Santiago.

The Anders brief then addresses one potential claim for our review:

Did the Trial Court abuse its discretion in denying [Appellant’s] 

Motion for Reconsideration of Sentence?

Anders Brief at 4. 

In the Anders brief, Counsel addresses whether the trial court erred in 

denying Appellant’s post sentence motion. Anders Brief at 6. Appellant 

argues the trial court failed to consider several mitigating factors in its 

sentencing determination:

At the time of sentence . . . Appellant noted that he was gainfully 

employed for nine . . . months. He did apologize for his actions. 

He was supporting his family and attending treatment and 

meetings . . . Appellant did not have a history of sexual offenses, 

but had a prior record score of five . . . . Appellant sought in[-]

patient treatment and was under the influence at the time of his 

offense. Had the Trial Court considered these facts his Motion for 

Reconsideration of Sentence would have been granted. 

Id. at 7 (record citations omitted). Counsel cites relevant law on the 

discretionary aspects of sentencing, and avers that “[t]he sentence imposed 

by the Trial Court was within its discretion and within the standard guideline 

range.” Id. at 7. Accordingly, Counsel suggests this appeal is frivolous. 
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We now proceed to our independent review of the record to determine 

whether this appeal is wholly frivolous. See Goodwin, 928 A.2d at 291.

It is well established that a challenge to the discretionary aspects of 

sentencing does not entitle an appellant to “review as of right.” 

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en 

banc). Rather,

[b]efore this Court can address such a discretionary challenge, an 

appellant must comply with the following requirements:

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.

Id. (citations omitted).

In the present case, Appellant filed a motion to reconsider sentence and 

filed a timely notice of appeal. In addition, the Anders brief includes the 

requisite Rule 2119(f) concise statement of reasons relief upon for appeal. 

See Anders Brief at 6. Thus, Appellant has invoked this Court’s jurisdiction 

as to a discretionary aspect of sentencing claim. See Caldwell, 117 A.3d at 

768.

Nevertheless, Appellant’s claim warrants no relief. This Court has 

stated:
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Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias, or ill will, or 

arrived at a manifestly unreasonable decision.

Caldwell, 117 A.3d at 770 (citation omitted). Moreover, before imposing a 

sentence, a trial court must consider the sentencing guidelines, as well as “the 

factors set out in 42 Pa.C.S. § 9721(b),” which include “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(b). If the sentencing court has the benefit of a PSI, the 

law presumes the court considered relevant information regarding the 

defendant’s character and other mitigating factors. Commonwealth v.

Tirado, 870 A.2d 362, 366 n.6, 368 (Pa. Super. 2005).

We note Section 9781(c) of the Sentencing Code provides:

(c) Determination on appeal.—The appellate court shall 

vacate the sentence and remand the case to the sentencing court 

with instructions if it finds:

(1) the sentencing court purported to sentence within 

the sentencing guidelines but applied the guidelines 

erroneously;

(2) the sentencing court sentenced within the 

sentencing guidelines but the case involves circumstances 

where the application of the guidelines would be clearly 

unreasonable; or

(3) the sentencing court sentenced outside the 

sentencing guidelines and the sentence is unreasonable.
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In all other cases the appellate court shall affirm the sentence 

imposed by the sentencing court.

42 Pa.C.S. § 9781(c)(1)-(3).

A review of the record shows that prior to imposing Appellant’s 

sentence, the trial court reviewed his PSI, which included his medical, 

psychological, and social history, and considered argument from defense 

counsel, as well as statements from Appellant and the victim. Trial Ct. Op. at 

4. Importantly, the trial court considered “the nature and gravity of [the] 

particular . . . offenses.” N.T., 2/22/23, at 9. The trial court noted Appellant’s 

“significant prior criminal history, a prior record score of five” which was “the 

highest any defendant can have.” Id. at 8. 

The trial court also properly considered the lasting impact of Appellant’s 

crime on the victim, who testified she is “afraid to use public restrooms [and] 

afraid to go anywhere by [her]self in fear that [Appellant] will be behind” her. 

N.T., 2/22/23, at 3. She is in a “constant state of depression, anxiety, worry, 

[and] fear.” Id. 

We conclude the trial court properly considered Appellant’s history, the 

gravity of the offenses and the severe impact on the victim, as well as the 

Appellant’s rehabilitative needs. See 42 Pa.C.S. § 9721(b). Lastly, both of 

Appellant’s sentences are within the standard range of the sentencing 

guidelines. Trial Ct. Op. at 4. Thus, we grant Counsel’s petition to withdraw, 

and we affirm the judgment of sentence. 
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Counsel’s petition to withdraw from representation granted. Judgment 

of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/14/2023