J-S59043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

SERGIO JACOBS

 Appellant No. 2542 EDA 2015

Appeal from the Judgment of Sentence July 16, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0203011-2005

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,*J.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 12, 2016

Appellant, Sergio Jacobs, appeals from the judgment of sentence 

following the revocation of his probation. Counsel has filed a petition to 

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant the 

petition to withdraw and affirm the judgment of sentence.

We adopt the facts and procedural history set forth in the trial court’s 

opinion. See Trial Ct. Op., 12/1/15, at 1-2. On December 16, 2014, 

following a hearing, the court revoked Appellant’s probation and sentenced 

him to an aggregate sentence of five to ten years’ imprisonment. On 

December 24, 2014, Appellant filed a timely motion for reconsideration of 

his violation-of-probation sentence. The court, on December 30, 2014, 

 

*

Former Justice specially assigned to the Superior Court.
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vacated the sentence pending a hearing on Appellant’s post-sentence 

motion. 

The court held a hearing on July 16, 2015, and initially indicated the 

purpose of the hearing was to address Appellant’s post-sentence motion. 

N.T., 7/16/15, at 2. Appellant’s counsel, however, stated that the hearing 

was for a violation but later noted the court had vacated the prior aggregate 

sentence of five to ten years’ imprisonment. Id. at 2-3. The court also 

acknowledged granting Appellant’s counsel’s December 24, 2014 postsentence motion. Id. at 11. After arguments, the court again sentenced 

Appellant to an aggregate sentence of five to ten years’ imprisonment. Id.

at 14. The court, however, did not enter or docket a written sentencing 

order. Appellant did not file another post-sentence motion.

Appellant, while represented by counsel, filed a pro se, timely notice of 

appeal1on August 11, 2016.2 On September 2, 2016, the trial court served 

Appellant’s counsel an order directing counsel to comply with Pa.R.A.P. 

1925(b). Counsel filed a motion to withdraw on September 9, 2015, which 

the court denied on October 5, 2015. The court, in its October 5, 2015 

 

1

The pro se notice of appeal is valid although counsel was representing 

Appellant. Cf. Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa. 2011) 

(holding defendant’s premature pro se notice of appeal valid despite being 

represented by counsel and given unique procedural posture of case).

2 See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. 

Super. 2006) (discussing prisoner mailbox rule).
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order, again instructed counsel to comply with Rule 1925(b). Appellant’s 

counsel timely filed a Rule 1925(b) statement, which challenged the 

discretionary aspects of Appellant’s sentence. Appellant’s counsel filed a 

petition to withdraw with this Court. Appellant did not file a pro se response 

or another counseled brief.

We first examine whether Counsel complied with the requirements of 

Anders and Santiago.

This Court must first pass upon counsel’s petition to 

withdraw before reviewing the merits of the underlying 

issues presented by [the appellant].

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. 

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 
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deems worth 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) 

(some citations omitted). If counsel complies with these requirements, “we 

will make a full examination of the proceedings in the lower court and render 

an independent judgment [as to] whether the appeal is in fact ‘frivolous.’” 

Id. at 882 n.7 (citation omitted).

Instantly, counsel’s petition avers he undertook “a conscientious 

examination of the record” and concludes the appeal is “wholly frivolous.” 

Mot. Seeking Permission to Withdraw as Counsel, 2/19/16, at 2 

(unpaginated). Counsel informed Appellant of his conclusion by letter dated 

February 18, 2016, which attached counsel’s motion to withdraw. The letter 

informed Appellant of his right to retain new counsel or to proceed pro se

and raise any additional arguments for this Court’s consideration. Id. at Ex. 

1. Counsel provided Appellant with a copy of the Anders brief, which 

includes a summary of the proceedings and facts of the case, pertinent law, 

and a discussion explaining why Appellant’s issues lack merit. Counsel 

concluded that he could not discern any non-frivolous issues. Id. We hold 

Counsel has complied with the mandates of Santiago, and we proceed to 

our independent analysis. See Orellana, 86 A.3d at 879-80. 

The Anders brief raises the following issue:

Whether there are any issues of arguable merit that could 

be raised on direct appeal presently before this Court and 

whether the appeal is wholly frivolous?
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Anders Brief at 3.3 The brief also addresses whether Appellant’s sentence 

was excessive and concludes Appellant waived the issue by failing to file a 

second post-sentence motion and preserve the issue in the Rule 1925(b) 

statement.4 Id. at 10. Appellant has not raised any additional issues.

This Court has stated that

[c]hallenges to the discretionary aspects of 

sentencing do not entitle an appellant to appellate 

review as of right. Prior to reaching the merits of a 

discretionary sentencing issue:

[W]e conduct 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, 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, 42 Pa.C.S.A. § 

9781(b).

Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing 

hearing or raised in a motion to modify the sentence 

imposed at that hearing.

 

3 Appellant did not file an additional counseled or pro se brief.

4 As noted above, however, Appellant preserved the issue in the Rule 

1925(b) statement.
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Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some 

citations and punctuation omitted). We add that a vacated sentence is a 

legal nullity. Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007).

[T]he Rule 2119(f) statement must specify where the 

sentence falls in relation to the sentencing guidelines and 

what particular provision of the Code is violated (e.g., the 

sentence is outside the guidelines and the court did not 

offer any reasons either on the record or in writing, or 

double-counted factors already considered). Similarly, the 

Rule 2119(f) statement must specify what fundamental 

norm the sentence violates and the manner in which it 

violates that norm . . . . 

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en 

banc). 

Instantly, the court, in response to Appellant’s initial post-sentence 

motion for reconsideration, vacated Appellant’s sentence, rendering it a legal 

nullity. See Wilson, 934 A.2d at 1196. At the second sentencing hearing, 

the court subsequently imposed the same sentence and Appellant timely 

appealed. See Evans, 901 A.2d at 533. Appellant, however, did not file a 

post-sentence motion or otherwise raise the issue at the second hearing. 

See id. Appellant, therefore, has waived the issue.5 See Evans, 901 A.2d 

at 533-34. Accordingly, we deny Appellant permission to appeal. Our 

independent review of the record reveals no other issue of arguable merit. 

 

5 Counsel also failed to include a Rule 2119(f) statement in the Anders brief 

but that alone does not preclude review. See Commonwealth v. BynumHamilton, 135 A.3d 179, 184 (Pa. Super. 2016). 
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See Santiago, 978 A.2d at 355 n.5. We conclude that the appeal is 

frivolous and grant counsel’s petition for leave to withdraw.

Counsel’s petition for leave to withdraw granted. Judgment of 

sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/2016
1 

Appeal. On September 9, 2015, counsel filed a Motion to Withdraw Representation, which was 

ordered Defendant, through counsel, to file a Concise Statement of Matters Complained of on 

filed a Notice of Appeal to the Superior Court of Pennsylvania. On September 2, 2005, this Court 

hearing on July 16, 2015, this Court denied Defendant's motion. On August 11, 2015, Defendant 

Defendant subsequently filed a Motion for Reconsideration of Sentence. Following a 

any other sentence the Defendant is serving. 

an Instrument of a Crime and Terroristic Threats, to be served consecutively to one another and to 

Defendant to two and one half (2 ¥i) to five (5) years incarceration for the charges of Possessing 

Defendant to be in violation of his probation. As a result of this violation, this Court sentenced 

of a Firearm. At a Violation of Probation ("YOP") hearing on December 16, 2014, this Court found 

Defendant, Sergio Jacobs (aka Jacobs Sergio), pled guilty to Aggravated Assault and Possession 

On September 16, 2014, while on this Court's probation for Robbery and related offenses, 

llll lllll lllllllll I Ill I/I 

FACTUAL AND PROCEDURAL HISTORY 7376258671 

_CP-51-CR-0203-011-2005 Comm. v Sergio, Jacobs OPINION Opinion 

MEANS,J. November 30, 2015 

Sergio JACOBS 

2542 EDA 2015 

v. 

COMMON\VEALTH OF I>ENNSYLVANIA CP-51-CR-0203011-2005 

FILED 

DEC O 1 2015 

IN THE COURT OF COMMON PLEAS \ Unit 

PHILADELPHIA COUNTY Criminal App~~ .s . fl. 

FIRST JUDICIAL DISTRICT OF PENNSYL V ANI~rst Judicial D1stnct ot p 

CRIMINAL TRIAL DIVISION 

Circulated 08/31/2016 10:29 AM
2 

A. Jurisdiction 

It is clear that this Court had jurisdiction to impose a sentence upon the Defendant. The 

original charges were felony matters, which occurred in the City of Philadelphia, and were tried 

before a duly elected judge. The subsequent Violations of Probation also occurred in the city of 

Philadelphia. Dkt. CP-51-CR-0025523-2010. Therefore, lack of jurisdiction cannot serve as 

grounds for appeal in this matter. See generally, Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 

1066 (2003 ). 

LEGAL ISSUES 

Because this case involves a Violation of Probation, the only grounds for appeal are that: 

(i) the Court lacked jurisdiction to impose a sentence, or (ii) that the sentence imposed was illegal 

or excessive. Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 790 (Pa. 2005) (holding 

that '<the scope of review in an appeal following a sentence imposed after probation revocation is 

limited to the validity of the revocation proceedings and the legality of the sentence imposed 

following revocation"). 

denied by this Court for lack of jurisdiction on October 5, 2015, and which time counsel was reordered to file a Concise Statement of Matters Complained of on Appeal. On October 23, 2015, 

Defendant, through counsel, filed a Concise Statement of Matters Complained of on Appeal, 

alleging that this Court erred in failing to consider the rehabilitative needs of Defendant when 

imposing its sentence. 
3 

he was on this Court's probation, he would not have accepted the plea deal offered on his 

excuse his actions by stating that he did not intend to violate his probation, and that, had he realized 

at close range. N.T. 12/16/2014 at 11. At his reconsideration hearing, Defendant attempted to 

Specifically, Defendant pied guilty to Aggravated Assault after shooting another man in the neck 

probation for a serious, violent offense, pled guilty to yet another serious, violent offense. 

will likely commit another crime if he is not imprisoned. Defendant, while on this Court's 

Defendant has been convicted of another crime, and his conduct clearly indicates that he 

42 Pa. C.S.A. § 9771(c). 

1. defendant has been convicted of another crime; 

11. the conduct of the defendant indicates that it is likely 

that he will commit another crime if he is not 

imprisoned; or 

111. such a sentence is essential to vindicate the authority 

of the court. 

impose total confinement if one of three conditions is met: 

A.2d 1218 (Pa. 1982); Commonwealth v. Wallace, 870 A.2d 838 (Pa. 2005). The trial court may 

had at the time of initial sentencing. 42 Pa. C.S.A. § 9771 (b ); E.g. Commonwealth v. Pierce, 441 

Upon revocation of probation, a sentencing court possesses the same sentencing options that it 

2005). 

Smith, 673 A.2d 893, 895 (Pa. 1996); see also Commonwealth v. Wallace, 870 A.2d 838 (Pa. 

manifestly unreasonable or the result of partiality, prejudice, bias or ill-will." Commonwealth v. 

court has not abused its discretion "unless the record discloses that the judgment exercised was 

on appeal." Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa. Super. 1996). A sentencing 

sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed 

The imposition of sentence following the revocation of probation "is vested within the 

B. Legality of Se11te11ci11g 
4 

MEANS,J 

BY THE COURT: 

Based on the above reasons, the judgment of this Court should not be disturbed, 

CONCLUSION 

not impose an illegal or excessive sentence. 

Accordingly, because this Court imposed a sentence within the statutory maximum it did 

sentences imposed were well within the statutory limits for the relevant offenses. 

a significant period of incarceration was necessary to protect the public from the Defendant. The 

hearing did the Defendant express any remorse for his actions. As such, this Court determined that 

Aggravated Assault case. At no time during his reconsideration hearing or his original VOP