J-S01043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                   Appellee                    :
                                               :
            v.                                 :
                                               :
LANCE ALLEN MOSER JR.,                         :
                                               :
                   Appellant                   :    No. 1409 EDA 2019


         Appeal from the Judgment of Sentence Entered July 25, 2018
                in the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002719-2017

BEFORE:       BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                              Filed: March 23, 2020

        Lance Allen Moser Jr. (Appellant) appeals nunc pro tunc from his July

25, 2018 judgment of sentence of five to twelve months of imprisonment,

which the trial court imposed after revoking his probation.             Appellant’s

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

Anders v. California, 386 U.S. 738 (1967), as refined by Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009).              Upon review, we deny counsel’s

petition without prejudice and remand for further proceedings consistent

with this memorandum.

        The procedural background underlying this matter can be summarized

as follows.      On May 18, 2017, Appellant pled guilty to one count each of

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*   Retired Senior Judge assigned to the Superior Court.
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disorderly conduct and false identification to a law enforcement officer, and

was sentenced to a term of one year of probation. On August 6, 2017, while

on probation, Appellant was arrested and charged with simple assault and

institutional vandalism. On February 2, 2018, Appellant pled guilty to both

offenses. At the Gagnon II1 hearing, on July 25, 2018, Appellant stipulated

to violating the terms of his probation. The court then revoked Appellant’s

probation and sentenced Appellant to a term of five to twelve months of

imprisonment.

       Appellant pro se untimely filed a motion seeking modification of

sentence on August 8, 2018, and a petition for early parole on August 16,

2018, which were treated together as a petition for relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.              Counsel was

appointed,     and    counsel     filed   an   amended   PCRA   petition   seeking

reinstatement of Appellant’s direct appeal rights nunc pro tunc. The PCRA

court granted Appellant’s petition to reinstate Appellant’s direct appeal

rights. On April 29, 2019, this timely-filed appeal followed.

       In lieu of a concise statement pursuant to Pa.R.A.P. 1925(b), counsel

filed notice of intent to file an Anders brief pursuant to Pa.R.A.P.
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1 “A Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is
made, a Gagnon II hearing is conducted where the Commonwealth is
required to establish that the defendant did violate his parole/probation.”
Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa. Super. 2011)
(citation omitted); see also Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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1925(c)(4).   Because Appellant did not raise any claims before the trial

court, rather than filing an opinion pursuant to Pa.R.A.P. 1925(a), the trial

court filed an order transmitting the record to this Court and asking this

Court to dismiss Appellant’s appeal and affirm his judgment of sentence.

      In this Court, Appellant’s counsel filed both a petition to withdraw as

counsel and an Anders brief. Accordingly, the following principles guide our

review of this matter.

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure as follows.

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       [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 (emphasis added).

       Counsel has failed to satisfy all of these requirements.     Specifically,

counsel has failed to meet the second requirement outlined in Santiago. In

his brief, Appellant’s counsel argues that he has failed to discover any

meritorious issues that can be raised on appeal, and therefore, the appeal is

frivolous. Anders Brief at 9. In fact, the only issue that counsel appears to

raise is a challenge to the discretionary aspects of Appellant’s sentence,2 but

counsel’s Anders brief does not refer to anything in the record that counsel

believes arguably supports the appeal. Counsel merely presents arguments



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2  Counsel failed to include a Pa.R.A.P. 2119(f) statement. See Pa.R.A.P.
2119(f) (“[a]n appellant who challenges the discretionary aspects of a
sentence … shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence”). Cf. Commonwealth v. Zeigler,
112 A.3d 656, 661 (Pa. Super. 2015) (“Where counsel files an Anders brief,
this Court has reviewed the matter even absent a separate [Rule] 2119(f)
statement.”). Therefore, “we do not consider counsel’s failure to submit a
Rule 2119(f) statement as precluding review of whether Appellant’s issue is
frivolous.” Zeigler, 112 A.3d at 661.



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that promote affirmance of the trial court’s rulings by explaining how the

sentence is appropriate. Id. at 7-8.

      Although an appellant’s counsel is not required to advocate strongly

for issues he or she believes are frivolous, “[a] brief that essentially argues

for affirmance is unacceptable.”       Commonwealth v. Vilsaint, 893 A.2d

753, 758 (Pa. Super. 2006) (citing Commonwealth v. Greer, 314 A.2d

513, 515 (Pa. 1974)).      “A proper Anders brief does not explain why the

issues are frivolous and does not develop arguments against the appellant’s

interest,” but rather, “articulates the issues in neutral form, cites relevant

legal authorities, references appropriate portions in the record to aid our

review, and concludes that, after a thorough review of the record, the appeal

is wholly frivolous.” Santiago, 978 A.2d at 351-52, citing Anders, 386 U.S.

at 738 (citations omitted).        Here, counsel has done nothing more than

present    arguments   that      support    affirmance      of   Appellant’s   sentence.

Therefore, upon review, we conclude that counsel has failed to satisfy the

technical requirements of Anders.

      Accordingly, we deny counsel’s petition to withdraw and remand this

case for further proceedings consistent with this memorandum. After review

of the entire record, counsel shall file either an advocate’s brief or a new

petition   to   withdraw   and    Anders     brief   that    fully   comply    with   the

requirements detailed above.




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      Petition to withdraw denied.   Case remanded with instructions.

Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/20




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