J-S16032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GIANNA MARIE ROSE,                         :
                                               :
                      Appellant                :      No. 2059 EDA 2019

        Appeal from the Judgment of Sentence Entered June 13, 2019
                 in the Court of Common Pleas of Pike County
           Criminal Division at No(s): CP-52-CR-0000390-2018,
            CP-52-CR-0000401-2018, CP-52-CR-0000402-2018

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

MEMORANDUM BY MUSMANNO, J.:                             FILED AUGUST 07, 2020

        Gianna Marie Rose (“Rose”) appeals from the judgment of sentence

imposed following her negotiated guilty plea to criminal conspiracy and drug

delivery resulting in death at Pike County docket number 390-2018 (“390-

2018”), and delivery of a controlled substance at Pike County docket

numbers 401-2018 (“401-2018”) and 402-2018 (“402-2018”).1 Additionally,

Rose’s counsel, Lindsey Collins, Esquire (“Attorney Collins”), 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 Attorney

Collins’s Petition to Withdraw and affirm Rose’s judgment of sentence.



____________________________________________


1   18 Pa.C.S.A. §§ 903(a)(1), 2506(a); 35 P.S. § 780-113(a)(30).
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      On April 18, 2019, Rose entered a guilty plea to the above-mentioned

offenses. On June 13, 2019, the trial court sentenced Rose, at 390-2018, to

66 months to 12 years in prison for the charge of criminal conspiracy and a

consecutive term of 78 months to 13 years in prison for the charge of drug

delivery resulting in death; and at 401-2018 and 402-2018, to 6 to 12

months in prison at each, to be served concurrently with each other and the

charges at 390-2018.       Rose did not file any post-sentence motions.   Rose

filed timely Notices of Appeal, one at each docket number, and with all three

docket numbers listed on each.        Rose additionally filed a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

      On August 9, 2019, this Court issued a Rule to Show Cause why Rose’s

appeal should not be quashed in light of Commonwealth v. Walker, 185

A.3d 969, 977 (Pa. 2018) (stating that “when a single order resolves issues

arising on more than one lower court docket, separate notices of appeal

must be filed.   The failure to do so will result in quashal of the appeal.”

(citing Pa.R.A.P. 341)).    See also Commonwealth v. Creese, 216 A.3d

1142, 1144 (Pa. Super. 2019) (quashing an appeal, pursuant to Walker,

where the appellant filed a notice of appeal at each docket number, but each

notice of appeal contained multiple docket numbers).      Attorney Collins did

not file a response. On August 21, 2019, Attorney Collins filed a “Petition for

Leave of Court to Amend the Notice of Appeal and Submit Nunc Pro Tunc.”

On October 4, 2019, this Court entered an Order informing the parties that




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disposition of the Walker issue and Attorney Collins’s Petition would be

deferred to the merits panel.

       Subsequently, this Court granted en banc review of two cases to

address the issue presented by Walker and Creese; i.e., whether the

inclusion of multiple docket numbers on a notice of appeal violates Walker

and Pa.R.A.P. 341. See Commonwealth v. Johnson, 2020 PA Super 164,

at *4 (Pa. Super. filed July 9, 2020) (en banc); Commonwealth v. Larkin,

2020 PA Super 163, at *3 (Pa. Super. filed July 9, 2020) (en banc). On July

9, 2020, this Court in Johnson and Larkin held that where separate notices

of appeal are filed at each docket number, the inclusion of multiple docket

numbers on each notice of appeal does not invalidate the notices of appeal,

thereby overruling Creese, and declined to quash the appeals.            See

Johnson, 2020 PA Super 164, at *12; Larkin, 2020 PA Super 163, at *3.

       Instantly, Rose filed three notices of appeal, one at each docket, and

each of which contained all three docket numbers.      Pursuant to Johnson

and Larkin, we conclude that Rose has complied with Walker and Pa.R.A.P.

341.

       Before addressing Rose’s claim on appeal, we must determine whether

Attorney Collins has complied with the dictates of Anders and its progeny in

petitioning to withdraw from representation.       See Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen

presented with an Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”).

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

and wishes to withdraw from representation, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record and
      interviewing the defendant, counsel has determined the appeal
      would be frivolous, (2) file a brief referring to any issues in the
      record of arguable merit, and (3) furnish a copy of the brief to
      defendant and advise him of his right to retain new counsel or to
      raise any additional points that he deems worthy of the court’s
      attention. The determination of whether the appeal is frivolous
      remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders 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.

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

      After determining that counsel has satisfied the technical requirements

of Anders and Santiago, this Court must then “conduct a simple review of

the record to ascertain if there appear on its face to be arguably meritorious

issues   that   counsel,   intentionally   or   not,   missed   or   misstated.”




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Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en

banc).

      In the instant case, our review of the Anders Brief and the Petition to

Withdraw reveals that Attorney Collins has substantially complied with each

of the requirements of Anders/Santiago.            See Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders).        Attorney Collins

indicates that she has made a conscientious examination of the record and

determined that an appeal would be frivolous.      Further, Attorney Collins’s

Anders Brief comports with the requirements set forth by the Supreme

Court of Pennsylvania in Santiago. Finally, Attorney Collins provided Rose

with a copy of the Anders Brief, and advised her of her rights to proceed

pro se, retain new counsel, or raise any additional points deemed worthy of

the Court’s attention.      Thus, Attorney Collins has complied with the

procedural requirements for withdrawing from representation.         We next

examine the record and make an independent determination of whether

Rose’s appeal is, in fact, wholly frivolous.

      Attorney Collins presents the following issue, on behalf of Rose, for our

review:   “Whether the trial court erred in imposing an excessive sentence

when sentencing [Rose] at the highest range of the sentencing guidelines on

the charges of drug delivery resulting in death and criminal conspiracy to




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commit drug delivery resulting in death?” Anders Brief at 7 (capitalization

omitted).

     This issue challenges the discretionary aspects of Rose’s sentence. “A

challenge to the discretionary aspects of sentencing is not automatically

reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,

815 (Pa. Super. 2017).     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).

Grays, 167 A.3d at 815-16 (citation omitted).

     Rose, via Attorney Collins, filed a timely Notice of Appeal. However,

Rose failed to preserve her claim in a post-sentence motion.             See

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (stating

that “issues challenging the discretionary aspects of a sentence must be

raised in a post-sentence motion or by presenting the claim to the trial court

during the sentencing proceedings. Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.”); see also Pa.R.A.P. 302(a)

(stating that “[i]ssues not raised in the lower court are waived and cannot




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be raised for the first time on appeal.”).2 Moreover, we are unable to review

Rose’s claim, because Rose has failed to request with the trial court, and

include in the certified record, the transcript for Rose’s sentencing hearing.

See Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (stating

that “it is an appellant’s duty to ensure that the certified record is complete

for purposes of review. … [F]ailure to ensure that the record provides

sufficient information to conduct a meaningful review constitutes waiver of

the issue sought to be reviewed.” (citation and quotation marks omitted)).

Accordingly, Rose’s claim is waived.

       Finally, our independent review of the record discloses no additional

non-frivolous issues that could be raised on appeal. See Dempster, supra.

We therefore grant Attorney Kelly’s Petition, and affirm Rose’s judgment of

sentence.

       Petition to Withdraw granted. Petition for Leave of Court to Amend the

Notice of Appeal denied as moot. Judgment of sentence affirmed.




____________________________________________


2 We note that Attorney Collins also did not include a Rule 2119(f) statement
within the Anders brief. See Grays, supra. Nevertheless, we decline to
waive Rose’s claim on this ground because the Commonwealth has not
objected to this deficiency. See Commonwealth v. White, 193 A.3d 977,
982 (Pa. Super. 2018) (declining to waive an appellant’s claim for failure to
include a Rule 2119(f) statement where the Commonwealth did not object).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/20




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