J-S51044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

Appellee : 

: 

v. : 

: 

BARBARA L. NEWMAN, : 

: 

Appellant : No. 1766 MDA 2013 

Appeal from the Judgment of Sentence entered on September 5, 2013 

in the Court of Common Pleas of Lycoming County, 

Criminal Division, No. CP-41-CR-0001976-2012 

BEFORE: BOWES, OTT and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014 

Barbara L. Newman (“Newman”) appeals from the judgment of 

sentence imposed following the revocation of her probation. Kathryn E. 

Bellfy, Esquire, (“Bellfy”), Newman’s counsel, has filed a Petition to 

Withdraw as Counsel and an accompanying brief pursuant to Anders v. 

California, 386 U.S. 738, 744 (1967). We grant counsel’s Petition to 

Withdraw and affirm Newman’s judgment of sentence.

The trial court has set forth the relevant history as follows: 

Under Information 1976-2012, [Newman] was charged 

with driving under the influence of alcohol [“DUI”] while 

incapable of safely driving and then refusing a chemical test of 

her blood, driving when her operating privilege was suspended 

as a result of a previous DUI, and several other summary

offenses as a result of an incident on August 8, 2012, where she 

drove past a “Road Closed” sign and got her truck stuck on a 

portion of Route 864 that was under construction. At the time 

[that Newman] committed these offenses, she was under 

probation supervision for simple assault, a misdemeanor of the 
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second degree, and trespass, a misdemeanor of the third 

degree[1]

, in case 1261-2011. 

[Newman] failed to appear for a status conference and a bench 

warrant was issued for her arrest. [Newman] fled to Missouri, 

but was arrested and extradited back to Pennsylvania. 

On August 8, 2013, [Newman] entered a no contest plea to DUIincapable (refusal) and [driving while operating privilege is 

suspended] [“DUS”]-DUI related. On September 5, 2013, the 

court sentenced [Newman] to pay a $1,500 fine and to serve six 

months under the Intermediate Punishment Program with the 

first 90 days to be served at the pre-release center for DUI. In 

addition, the court sentenced [Newman] to 60 days of 

incarceration and a $500 fine for DUS-DUI related. 

The court [] held [Newman]’s probation violation hearing on 

September 5, 2013. The court found that [Newman] violated 

her probation by absconding from supervision and committing a 

new criminal offense. The court revoked [Newman]’s probation 

and sentenced her to a term of 3 to 6 months of incarceration to 

be served consecutively to her sentence in case 1976-2012. 

Trial Court Opinion, 9/5/13, at 1-2 (footnote added). 

Newman filed a timely Notice of Appeal. On appeal, Newman’s 

counsel, Bellfy, has filed a brief pursuant to Anders that raises the following 

question for our review: “Whether the trial court abused its discretion by 

issuing a sentence that is manifestly excessive or in excess of the plea 

agreement[?]” Brief for Appellant at 4. Bellfy filed a separate Petition to 

withdraw as counsel with this Court on April 28, 2014. Newman filed neither 

a pro se brief, nor retained alternate counsel for this appeal. 

“[W]e note that when faced with a purported Anders brief, this Court 

may not review the merits of the underlying issues without first passing on 

 

1

 18 Pa.C.S.A. §§ 2701(a), 3503(b)(1)(i) 
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the request to withdraw.” Commonwealth v. Edwards, 906 A.2d 1225, 

1227 (Pa. Super. 2006) (citation, brackets, and quotation marks omitted). 

Pursuant to Anders, when counsel believes an appeal is frivolous and 

wishes to withdraw representation, he must do the following: 

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record, counsel

has determined the appeal would be frivolous; 

(2) file a brief referring to any issues that might arguably 

support the appeal, but which does not resemble a nomerit letter; and 

(3) furnish a copy of the brief to the defendant and advise him 

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

any additional points he deems worthy of this Court’s 

attention. 

Commonwealth v. Curry, 931 A.2d 700, 701 (Pa. Super. 2007) (citation 

omitted). In Commonwealth v. Santiago, 978 A.3d 349 (Pa. 2009), our 

Supreme Court addressed the second requirement of Anders, i.e., the 

contents of an Anders brief, and set forth the following requirements for 

Anders briefs: 

(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. “Once counsel has satisfied the [Anders] 

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.” Edwards, 906 A.2d at 1228 

(citation omitted). 

 Here, we conclude that Bellfy has substantially complied with each of 

the requirements of Anders. See Commonwealth v. Wrecks, 934 A.2d 

1287, 1290 (Pa. Super. 2007) (stating that counsel needs to substantially 

comply with the requirements of Anders). Bellfy indicates that she has 

conscientiously examined the record and determined that an appeal would 

be frivolous. The record contains a copy of the letter that Bellfy sent to 

Newman, advising her of her rights to proceed pro se or retain alternate 

counsel and file additional claims and stating Bellfy’s intention to seek 

permission to withdraw. Bellfy has complied with the procedural 

requirements for withdrawing from representation. Therefore, we shall 

proceed to an independent evaluation of the record to determine whether 

this appeal is wholly frivolous. 

 Here, Newman challenges the discretionary aspects of her sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162, 

170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary 

sentencing issue, 
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[this Court conducts] a four part analysis to determine: (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, [see] 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, [see] 42 

Pa.C.S.A. § 9781(b). 

Moury, 992 A.2d at 170 (citation omitted). 

“The determination of whether a particular issue raises a substantial 

question is to be evaluated on a case-by-case basis.” Commonwealth v. 

Titus, 816 A.2d 251, 256 (Pa. Super. 2003). “Generally, however, in order 

to establish a substantial question, the appellant must show actions by the 

sentencing court inconsistent with the Sentencing Code or contrary to the 

fundamental norms underlying the sentencing process.” Id. 

Here, Newman filed a timely Notice of Appeal, but did not preserve the 

issue at sentencing or in a post-sentence motion. Nevertheless, because we 

are required to undertake an independent review of the record, we will 

address Newman’s sentencing claim. 

Newman presents, in her Rule 2119(f) statement, only a bald 

allegation of excessiveness and does not raise any challenge as to a violation 

of the Sentencing Code or a particular fundamental norm underlying the 

sentencing process. See Brief for Appelant at 7; see also Commonwealth 

v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (stating we cannot 

look beyond the statement of questions presented and 2119(f) concise 
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statement to determine whether a substantial question exists). Therefore, 

we conclude that Newman’s claim does not present a substantial question 

for our review. See Titus, 816 A.2d at 255-56 (stating that bald claim of 

excessiveness does not raise a substantial question). Moreover, our 

independent examination of the record has convinced us that there are no 

other sentencing claims, not advanced by Bellfy, that would raise a 

substantial question to permit review of Newman’s sentence. See id. at 

256.2

 

Based on our independent review of the record, we conclude that this 

appeal is frivolous. For these reasons, we grant Bellfy’s request to withdraw.

Petition to Withdraw as Counsel granted; judgment of sentence 

affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/16/2014 

 

2

 We also note that at the sentencing hearing, the court noted that it 

believed that a three to six month sentence was lenient in light of the 

violations Newman had committed while on supervision. N.T., 9/5/13, at 

12.