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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
DARREN JOSEPH ARNOLD,                  :          No. 1028 EDA 2018
                                       :
                       Appellant       :


         Appeal from the Judgment of Sentence, February 9, 2018,
            in the Court of Common Pleas of Delaware County
            Criminal Division at Nos. CP-23-CR-0004313-2010,
                         CP-23-CR-0008017-2016



COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
DARREN JOSEPH ARNOLD,                  :          No. 1030 EDA 2018
                                       :
                       Appellant       :


         Appeal from the Judgment of Sentence, February 9, 2018,
            in the Court of Common Pleas of Delaware County
            Criminal Division at Nos. CP-23-CR-0004313-2010,
                         CP-23-CR-0008017-2016


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 15, 2019

     Darren Joseph Arnold appeals from the February 9, 2018 judgment of

sentence entered by the Court of Common Pleas of Delaware County following

his conviction of tampering with a public record, forgery-unauthorized act in
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writing, forgery-utters forged writing, and impersonating a public servant.1

Appellant also appeals from the February 9, 2018 judgment of sentence

entered in the Court of Common Pleas of Delaware County following

revocation of his probation.2     Shawn K. Page, Esq., filed applications to

withdraw his appearance on August 16, 2018, alleging that the appeals are

wholly frivolous, accompanied by an Anders brief.3 After careful review, we

deny Attorney Page’s applications to withdraw and remand with instructions.

       The relevant factual and procedural history of this case is as follows:

Appellant began working as a salesman at Thomas Chevrolet, a car dealership

located in Middletown Township, Delaware County, Pennsylvania in November

of 2008. Commonwealth v. Arnold, No. 1493 EDA 2011 at 2, unpublished

memorandum (Pa.Super. filed April 2, 2012).           In March of 2009, the

Pennsylvania State Police arrested appellant at a service plaza on the

Pennsylvania Turnpike in Cumberland County after it determined that

appellant    was   driving   a   2009    Chevrolet   Suburban   belonging   to




118   Pa.C.S.A. §§ 4911(a)(2), 4101(a)(2), 4101(a)(3), and 4912, respectively.

2 Appellant was sentenced to, inter alia, probation on December 6, 2010
following a conviction of theft by unlawful taking, receiving stolen property,
and conspiracy to commit theft. See 18 Pa.C.S.A. §§ 3921(a), 3925(a), and
903(a)(1), respectively.

3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).


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Thomas Chevrolet without authorization to do so.4       Id.   After learning of

appellant’s arrest in Cumberland County, Thomas Chevrolet initiated an

investigation and discovered that a 2009 Chevrolet Tahoe LTZ was missing

from the dealership. Id. The Tahoe was subsequently located in Philadelphia.

Id. at 3.

        After the police located the Tahoe, the Commonwealth charged

appellant with theft by unlawful taking, receiving stolen property, and criminal

conspiracy.5 On November 3, 2010, the trial court convicted appellant of all

charges following a non-jury trial.    The trial court sentenced appellant to

18-48 months’ imprisonment, followed by 3 years’ probation on December 6,

2010.       A previous panel of this court affirmed appellant’s judgment of

sentence. See Commonwealth v. Arnold, 48 A.3d 466 (Pa.Super. 2012)

(unpublished memorandum), appeal denied, 72 A.3d 599 (Pa. 2012).

        On January 9, 2016, the owner of Thomas Chevrolet, Thomas Ercolani,

received a letter purportedly from the Delaware County District Attorney’s

Office. (Notes of testimony, 9/20/17 at 13-14.) The letter stated that due to

wrongful prosecution for the crimes relating to the theft of the 2009 Chevrolet

Tahoe LTZ, Thomas Chevrolet was required to pay damages to appellant

totaling $17,151,360. (Id. at 22-24.) The letter further stated that a meeting



4 Appellant pled guilty to charges related to this incident in Cumberland
County. Id.

5   18 Pa.C.S.A. §§ 3921(a), 3925(a), and 903(a), respectively.


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between appellant and Thomas Chevrolet’s management was to be scheduled

for January 11, 2016 at the dealership. (Id. at 22.) On January 11, 2016,

appellant appeared at the dealership. (Id. at 26.) Pennsylvania State Police

Trooper Michael Bean testified that appellant admitted to writing the letter at

issue. (Id. at 63.)

        On January 25, 2017, the Commonwealth charged appellant with

tampering with a public record, forgery-unauthorized act in writing,

forgery-utters    forged   writing,   impersonating   a   public   servant,   and

harassment. The jury convicted appellant of tampering with a public record,

both forgery charges, and impersonating a public servant on September 21,

2017. The trial court acquitted appellant of harassment.6

        On February 9, 2018, the trial court sentenced appellant to an aggregate

term of 16-32 months’ imprisonment, followed by 52 months’ probation for

the tampering with a public record, impersonating a public servant, and

forgery convictions. Immediately after the sentencing hearing, the trial court




6   18 Pa.C.S.A. § 2709(a)(3).


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held a Gagnon II hearing7 to address appellant’s violation of the probation

stemming from the December 6, 2010 judgment of sentence. The trial court

revoked   appellant’s   probation   and   sentenced   him   to   6-24   months’

imprisonment to be served consecutively to the first sentence imposed.

Appellant did not file any post-sentence motions.

      On March 12, 2018, appellant filed a pro se notice of appeal to this

court.8 Two days later, on March 14, 2018, Attorney Page filed a notice of

appeal. The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on March 16, 2018.



7In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Unites States Supreme
Court determined a two-step procedure was required before parole or
probation may be revoked:

            [A] parolee [or probationer] is entitled to two
            hearings, one a preliminary hearing [Gagnon I] at
            the time of his arrest and detention to determine
            whether there is probable cause to believe that he has
            committed a violation of his parole [or probation], and
            the other a somewhat more comprehensive hearing
            [Gagnon II] prior to the making of a final revocation
            decision.

Id. at 781-782.

8 We note that appellant filed a single notice of appeal for two separate
judgments of sentence. The Pennsylvania Rules of Appellate Procedure
require that two separate notices of appeal be filed in such cases.
Pa.R.A.P. 341, Official Note. In Commonwealth v. Walker, 185 A.3d 969
(Pa. 2018), our supreme court recently held that an appeal must be quashed
in cases where separate notices of appeal were not filed. Id. at 977. The
court’s holding, however, was limited to notices of appeal filed after June 1,
2018. Id. Here, appellant filed his notice of appeal on March 12, 2018.
Accordingly, we shall proceed to consider appellant’s case on its merits.


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On April 23, 2018, the trial court vacated its March 16, 2018 order and again

ordered appellant to file a concise statement of errors complained of on

appeal. Appellant failed to do so, and the trial court filed an opinion pursuant

to Pa.R.A.P 1925(a) on June 14, 2018.

      As noted above, Attorney Page filed applications to withdraw his

appearance, accompanied by an Anders brief on August 16, 2018.               On

December 13, 2018, we denied Attorney Page’s applications to withdraw and

remanded so that Attorney Page could file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) or a statement of

intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Attorney Page

filed a statement of intent to file an Anders brief on January 13, 2019. Having

already received Attorney Page’s Anders brief, we may now decide this appeal

on its merits.

            A request by appointed counsel to withdraw pursuant
            to Anders and Santiago gives rise to certain
            requirements and obligations, for both appointed
            counsel and this Court. Commonwealth v. Flowers,
            113 A.3d 1246, 1247-48 (Pa.Super. 2015).

                  These requirements and the significant
                  protection they provide to an Anders
                  appellant arise because a criminal
                  defendant has a constitutional right to a
                  direct appeal and to counsel on that
                  appeal. Commonwealth v. Woods, 939
                  A.2d 896, 898 (Pa.Super. 2007). This
                  Court     has     summarized        these
                  requirements as follows:




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                    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.

               Woods, 939     A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise content of an Anders brief:

                    [T]he Anders brief that
                    accompanies court-appointed
                    counsel’s petition to withdraw
                    . . . 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



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                       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.

           Id. at 1248. If this Court determines that appointed
           counsel has met these obligations, it is then our
           responsibility “to make a full examination of the
           proceedings and make an independent judgment to
           decide whether the appeal is in fact wholly frivolous.”
           Id. at 1248. In so doing, we review not only the
           issues identified by appointed counsel in the Anders
           brief, but examine all of the proceedings to “make
           certain that appointed counsel has not overlooked the
           existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Page’s petitions to withdraw, supporting

documentation, and Anders brief reveals that he has not complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the briefs to appellant, advised him of his right to retain new counsel or

proceed pro se, and attached to the Anders application a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 752 (Pa.Super. 2005) (citation omitted).       See Commonwealth v.

Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are




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quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). Attorney Page’s letter,

however, failed to advise appellant that he may raise other issues before this

court. See Millisock, 873 A.2d at 752.

      We remand and direct Attorney Page to send appellant a letter,

accompanied by the Anders brief, that complies with the directives of

Commonwealth v. Millisock. Attorney Page shall comply with this directive

within 30 days of the date of this memorandum. Appellant may respond within

45 days of receipt of Attorney Page’s Anders brief and accompanying letter.

      Applications to withdraw as counsel denied.           Case   remanded.

Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/15/19




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