J-S16004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DANIEL MICHAEL SARANCHAK                :
                                         :
                   Appellant             :      No. 1600 MDA 2018

    Appeal from the Judgment of Sentence Entered September 10, 2018
             In the Court of Common Pleas of Schuylkill County
           Criminal Division at No(s): CP-54-CR-0000889-1993


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                  FILED MAY 14, 2019

     Daniel Michael Saranchak appeals from the judgment of sentence

imposed September 10, 2018, in the Schuylkill County Court of Common

Pleas. In 1994, Saranchak was sentenced to death for the murder of his uncle

and grandmother. After the Third Circuit Court of Appeals granted him habeas

corpus relief in the form of a new penalty phase hearing, the Office of the

Attorney General decided not to seek the death penalty and the trial court

resentenced   Saranchak   to   an   aggregate    term   of   life   imprisonment.

Contemporaneous with this appeal, Saranchak’s counsel has filed a petition to

withdraw from representation and an Anders brief.               See Anders v.

California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981). The sole issue addressed in the Anders brief challenges the

Attorney General’s decision not to pursue the death penalty. For the reasons
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below, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

        The facts underlying Saranchak’s conviction are well-known to the

parties and detailed in a prior decision by the Third Circuit Court of Appeals.

See Saranchak v. Beard, 616 F.3d 292, 297-300 (3d. Cir. 2010), cert.

denied, 565 U.S. 831 (2011). In summary, Saranchak shot and killed his

uncle and grandmother in October of 1993, while he and a cohort proceeded

to rob them. He eventually entered a guilty plea to murder generally, then

proceeded to a degree-of-guilt hearing and non-jury trial on the remaining

charges.    The court found Saranchak guilty of two counts of first-degree

murder, as well as robbery, burglary, aggravated assault, theft, and

conspiracy.1 A jury was empaneled for the penalty phase of the trial, and on

September 15, 1994, returned a sentence of death, which the trial court

imposed that same day. On September 19, 1994, the trial court conducted a

brief hearing to impose sentences on Saranchak’s remaining convictions.2

        Saranchak’s sentence was affirmed on direct appeal to the Pennsylvania

Supreme Court, and the United States Supreme Court denied his petition for

certiorari on January 6, 1997. See Commonwealth v. Saranchak, 675 A.2d
____________________________________________


1   See 18 Pa.C.S. §§ 2502(a), 3701, 3502, 2702, 3901, and 903, respectively.

2 Specifically, the court determined the charges of aggravated assault and
theft merged for sentencing purposes, and imposed consecutive statutory
maximum terms of imprisonment on the charges of robbery, burglary, and
conspiracy.



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268 (Pa. 1996), cert. denied, 519 U.S. 1061 (1997).3 Thereafter, Saranchak

filed a petition for collateral relief pursuant to the Post Conviction Relief Act

(“PCRA”).4 In May of 1997, the PCRA court entered an order denying relief,

however, the Pennsylvania Supreme Court later vacated that order and

remanded for the filing of an amended petition.        See Commonwealth v.

Saranchak, 739 A.2d 162 (Pa. 1999).              On remand, Saranchak filed an

amended petition, and the PCRA court conducted evidentiary hearings in

February of 2003, before entering an order denying relief on July 8, 2003.5

That order was affirmed on appeal to the Pennsylvania Supreme Court. See

Commonwealth v. Saranchak, 866 A.2d 292 (Pa. 2005).6
____________________________________________


3 In that appeal, the Supreme Court concluded (a) the evidence was sufficient
to support Saranchak’s convictions, (b) the trial court did not err or abuse its
discretion in excluding certain jurors or admitting photos of the victim during
the penalty phase, (c) the jury instructions on mitigating circumstances was
proper, and (d) the sentence of death was not excessive or disproportionate.
See Saranchak, supra, 675 A.2d at 272-279.

4   42 Pa.C.S. §§ 9541-9546.

5While the PCRA petition was pending, the Governor of Pennsylvania signed
Saranchak’s death warrant, and scheduled his execution for November 8,
2000.   However, the Third Circuit later stayed the execution.        See
Commonwealth v. Saranchak, 866 A.2d 292, 297-298 (Pa. 2005).

6 In that appeal, the Supreme Court rejected Saranchak’s challenges to trial
counsel’s ineffectiveness for failing to: (1) investigate the possibility of
presenting a diminished capacity defense; (2) seek suppression of both a
statement he made to police and a statement he made to a caseworker; (3)
object to his co-defendant’s invocation of the Fifth Amendment during cross-
examination; (4) investigate his background for potential mitigating evidence
during the penalty phase; (5) seek an evaluation of his mental health
condition; (6) object to the court’s jury instructions during the penalty phase;



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       Saranchak next challenged his conviction via a petition for writ of habeas

corpus. On January 4, 2008, the federal district court for the Middle District

of Pennsylvania granted relief in part, concluding trial counsel rendered

ineffective assistance during the degree of guilt hearing.      Accordingly, the

court vacated his conviction and remanded for further proceedings.           See

Saranchak v. Beard, 538 F.Supp.2d 847 (M.D. Pa. 2008). The Third Circuit

Court of Appeals reversed the ruling on appeal, but remanded the matter back

to the district court to consider the remaining issues in the petition, including

those related to the penalty phase of the trial. See Saranchak v. Beard,

616 F.3d 292 (3d. Cir. 2010). The United States Supreme Court subsequently

denied certiorari. See Saranchak v. Wetzel, 565 U.S. 831 (2011).

       On April 24, 2012, the district court denied Saranchak relief on his

remaining claims. Saranchak v. Beard, 2012 WL 1414344 (M.D. 2012). On

appeal, the Third Circuit affirmed in part, reversed in part, and remanded.

See Saranchak v. Secretary, Pa. Dept. of Corrections, 802 F.3d 579 (3d.

Cir. 2015). Specifically, the Court affirmed the district court’s denial of relief

with regard to counsel’s ineffectiveness at the degree of guilt hearing, but

concluded “counsel’s performance at the penalty phase was unreasonably

deficient,” such that Saranchak was entitled to a new penalty hearing. Id. at

596. The Third Circuit summarized:



____________________________________________


and (7) object to the Commonwealth’s improper argument during the penalty
phase. See Saranchak, supra, 866 A.2d at 299-307.

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      For these reasons, we will affirm that part of the District Court’s
      judgment denying Saranchak’s petition for habeas corpus due to
      trial counsel’s cumulative errors at his degree-of-guilt hearing.
      We will reverse in part the judgment of the District Court and
      remand with instructions to grant a provisional writ of habeas
      corpus directed to the penalty phase.               Unless the
      Commonwealth        of    Pennsylvania      conducts      a   new
      sentencing hearing, Saranchak shall be sentenced to life
      imprisonment.

Id. at 601 (emphasis supplied). Once again, the United States Supreme Court

denied a petition for writ of certiorari. See Saranchak v. Wetzel, 136 S.Ct.

1494 (2016).

      Upon remand, the Commonwealth filed a Notice of Intention to Seek the

Death Penalty against Saranchak. See Commonwealth’s Notice, 6/28/2016.

The case was continued several times by both parties. In April of 2018, the

Office of the Attorney General assumed jurisdiction of the matter when the

newly elected district attorney of Schuylkill County realized he had a conflict

of interest. See Anders Brief at 4. At a May 1, 2018, status conference, the

Attorney General’s Office requested, and the court granted, a 60-day

continuance to determine if it still wanted to pursue the death penalty. See

N.T., 5/1/2018, at 2-5. Thereafter, on August 6, 2018, the Attorney General’s

Office informed the trial court that it decided not to pursue a new penalty

hearing. Accordingly, the court scheduled Saranchak’s resentencing hearing

for September 10, 2018. At that time, the court imposed two consecutive

terms of life imprisonment without parole for the first-degree murder

convictions, and consecutive terms of 10 to 20 years for robbery, 10 to 20




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years for burglary, and five to 10 years for criminal conspiracy. 7          On

September 25, 2018, Saranchak filed a timely, pro se notice of appeal and a

request for the appointment of new counsel.8, 9

       On October 23, 2018, present counsel filed a petition to withdraw,

accompanied by a letter to this Court explaining why he believed the appeal

was wholly frivolous. See Petition to Withdraw as Counsel, 10/23/2018. On

October 26, 2018, this Court entered an order denying counsel’s application

to withdraw and directing counsel to comply with the procedural requirements

of Anders and its progeny. See Order, 10/26/2018 (noting Anders requires

counsel to file an Anders brief and letter advising the defendant of his rights,

in addition to petition to withdraw). Counsel replied by filing only an Anders

brief, absent a new petition to withdraw or notification to the defendant.

Accordingly, on November 26, 2018, this Court entered another order,

directing counsel to fully comply with Anders and its progeny within 14 days.

See Order, 11/26/2018. Counsel complied on December 18, 2018.




____________________________________________


7 The court’s sentence on the remaining charges was the same as initially
imposed in 1994.

8 Saranchak claimed present counsel “refuses to appeal the decision as I have
requested him to do so.” Appeal Letter, 9/25/2018, at 1.

9The trial court did not direct Saranchak to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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       Before we may address the substantive issue set forth in the Anders

brief, we must first examine the request to withdraw. See Commonwealth

v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). Here, our review of the

record reveals counsel has substantially complied with the requirements for

withdrawal outlined in Anders, supra, and its progeny. Specifically, counsel

requested permission to withdraw based upon his determination that the

appeal is wholly frivolous,10 filed an Anders brief pursuant to the dictates of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a

copy of the Anders brief to Saranchak, and advised Saranchak of his right to

retain new counsel or proceed pro se. See Commonwealth v. Cartrette,

83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Moreover, our review of

the record reveals no correspondence from Saranchak responding to the

Anders brief.      Accordingly, we will proceed to examine the issue counsel

identified in the Anders brief, and then conduct “a full examination of all the
____________________________________________


10 We note counsel neglected to state in his petition to withdraw that (1) he
believed Saranchak’s appeal was wholly frivolous, and (2) he made a
conscientious examination of the record.          However, under the unique
procedural posture of this case, we find counsel’s omissions to be harmless.
In the petition to withdraw, counsel explained the only issue to be decided on
remand was whether Saranchak would receive the death penalty, and the
Attorney General’s Office’s decision not to pursue the death penalty “is not
appealable and is final.”     Petition to Withdraw as Counsel of Record,
12/18/2018, at ¶ 5. Moreover, counsel stated in both his letter to Saranchak
and his Anders Brief his belief that the appeal is “wholly frivolous.” Letter to
Saranchak, dated 12/6/2018; Anders Brief at 5. As this remand for was a
very limited purpose, counsel’s failure to state he made an examination of the
entire record is of no moment.




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proceedings,      to    decide     whether     the   case   is   wholly   frivolous.”

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 2018) (en

banc).11

       The only issue identified in counsel’s Anders brief is a challenge to the

decision of the Office of the Attorney General not to pursue the death penalty.

See Anders Brief at 6.           The trial court addressed Saranchak’s appeal as

follows:

             There is no further remedy at this point available to
       [Saranchak]. We have complied with the United States Court of
       Appeals for the Third Circuit’s decision which is attached hereto.
       The Commonwealth, represented by the Attorney General, has
       chosen not to seek the death penalty. It is the Commonwealth,
       not [Saranchak], who possesses the discretion on whether to seek
       the death penalty in a murder case. See Commonwealth v
       Buck, 551 Pa. 184, 190-91, 709 A.2d 892, 896 (1998). We then
       held a sentencing hearing, at which [Saranchak] was present, and
       imposed a life sentence without the possibility of parole.
       Therefore, there is no further action to be taken by this Court or
       by the Pennsylvania Superior Court.

Trial Court Opinion, 11/20/2018, at 1-2 (footnote omitted).

       We agree. The Third Circuit’s remand was limited. Indeed, first, in its

August 3, 2010, opinion, the Third Circuit reversed the district court’s grant

of habeas corpus relief with respect to three claims arising from Saranchak’s

degree of guilt hearing (diminished capacity defense, suppression of

statements made to police, and suppression of statements made to witness).

See Saranchak, supra, 616 F.3d at 301-315. The Court remanded the case

____________________________________________


11 See also Commonwealth v. Dempster, 187 A.3d 266 (Pa. Super. 2018)
(en banc).

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back to the district court to consider the remaining issues in Saranchak’s

habeas corpus petition. See id. at 314-315. After the district court denied

the petition on remand, the Third Circuit, once again, reversed that decision

in part, concluding Saranchak was denied the effective assistance of counsel

during the penalty phase of his trial. See Saranchak, supra, 802 F.3d at

584-601.   As noted above, the Third Circuit granted “a provisional writ of

habeas corpus directed to the penalty phase” and directed that “[u]nless the

Commonwealth of      Pennsylvania     conducts   a new   sentencing hearing,

Saranchak shall be sentenced to life imprisonment.” Id. at 601. Accordingly,

as the trial court explained in its opinion, the only question on remand was

whether the Commonwealth intended to conduct a new penalty hearing, and

therefore pursue the death penalty. When it decided not to do so, there was

no need for any further proceedings, as the trial court had no discretion but

to impose a sentence of life imprisonment.

      Our review has uncovered no decisions challenging the Commonwealth’s

determination not to seek the death penalty. While the decision to pursue

the death penalty is within the prosecutor’s discretion, the Supreme Court has

noted that its discretion is not “unfettered[;] rather, the prosecutor may

only seek the death penalty if   at   least   one   enumerated    aggravating

circumstance is present.” Commonwwealth v. Chamberlain, 30 A.3d 381,

424 (Pa. 2011), cert. denied, 566 U.S. 986 (2012). We find no reason, and

Saranchak has provided none, why a defendant should be permitted to




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challenge the Commonwealth’s decision not to pursue the death penalty.

Accordingly, Saranchak is entitled to no relief on this claim.

      Lastly, in accordance with Yorgey, supra, we have independently

reviewed the certified record in order to determine if counsel’s analysis

regarding the frivolous nature of the present appeal is correct. Because we

agree with counsel’s assessment that this appeal is wholly frivolous, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed.          Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/14/2019




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