J-S12029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEBORAH LYNN CHURCH                        :
                                               :
                       Appellant               :   No. 1728 MDA 2018

      Appeal from the Judgment of Sentence Entered September 18, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003075-2017


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

MEMORANDUM BY DUBOW, J.:                                  FILED JULY 09, 2019

        Appellant Deborah Lynn Church, appeals from the Judgment of

Sentence entered in the Lancaster County Court of Common Pleas following

her conviction of one count each of Retail Theft and Disorderly Conduct.1 With

this appeal, Appellant’s counsel has filed an Application to Withdraw as

Counsel and an Anders2 brief. We conclude that counsel’s Anders brief is

deficient. Therefore, we deny counsel’s Application to Withdraw and direct

counsel to file either a compliant Anders brief or an advocate’s brief.

        On June 3, 2017, security personnel at the Bon-Ton store in Park City

observed Appellant on the CCTV surveillance system and on the floor for

approximately one half-hour as she put various merchandise in her cart,

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1   18 Pa.C.S. § 3929(a)(1) and 18 Pa.C.S. § 5503(a)(1), respectively.

2   Anders v. California, 386 U.S. 738 (1967).
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disappeared into the dressing room twice, and reappeared both times with the

merchandise stuffed in bags and her purse. After Appellant walked out of the

store with her cart without paying for the merchandise, security personnel

escorted her back into the store as she loudly protested. They recovered the

unpaid merchandise from Appellant’s personal shopping bags; they also found

unpaid merchandise and a pair of scissors in her handbag. In the fitting room,

security personnel recovered the security tag that had been cut off one piece

of merchandise. Officer Derek Kanuck of the Lancaster City Police Department

arrested Appellant, and the Commonwealth charged her with Retail Theft and

Disorderly Conduct.

      On September 17, 2018, the court held a trial on the Retail Theft charge

at which two Bon-Ton security persons, the arresting police officer, and

Appellant herself testified.   The court admitted a copy of the store’s CCTV

surveillance tape from the day of the incident. The jury found Appellant guilty.

The next day, following a bench trial, the court found Appellant guilty of the

summary offense of Disorderly Conduct.

      On September 18, 2018, the court sentenced Appellant to, inter alia,

three years of probation. Appellant did not file a post-sentence motion.

      Appellant timely filed a Notice of Appeal. Thereafter, counsel filed a

Statement of Intent to File Anders Brief in Lieu of Statement of Errors

Complained of on Appeal. See Pa.R.A.P. 1925(c)(4). The trial court did not

file a Rule 1925(b) Opinion. Appellant’s counsel filed an Anders Brief and an




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Application to Withdraw as Counsel with this Court. Appellant has not filed a

response.

      This Court may not review the merits of the underlying issues without

first passing on the request to withdraw. Commonwealth v. Daniels, 999

A.2d 590, 593 (Pa. Super. 2010). In order for counsel to withdraw from an

appeal, our Supreme Court has determined that counsel must file a brief

pursuant to Anders that: (1) provides a summary of the procedural history

and facts, with citations to the record; (2) refers to anything in the record that

counsel believes arguably supports the appeal; (3) sets forth counsel’s

conclusion that the appeal is frivolous; and (4) states counsel’s reasons for

concluding that the appeal is frivolous. Commonwealth v. Santiago, 978

A.2d 349, 361 (Pa. 2009). “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.” Id.

      In addition, counsel must provide a copy of the Anders brief to her

client with a letter advising the client of his or her right to “(1) retain new

counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any

points that the appellant deems worthy of the court’s attention in addition to

the points raised by counsel in the Anders brief.”          Commonwealth v.

Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (citation omitted).

      If counsel does not fulfill the technical requirements of Anders, we will

deny the application to withdraw and remand the case with appropriate


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instructions. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (citations omitted).

       In the instant matter, our review of the Anders brief indicates it does

not comply with the requirements set forth by the Pennsylvania Supreme

Court in Santiago, supra. Counsel sets forth a bare recitation of the facts

and identifies two issues of arguable merit on behalf of Appellant: (1) whether

the evidence was sufficient to sustain Appellant’s convictions for Retail Theft

and Disorderly Conduct; and (2) whether the trial court abused its discretion

in sentencing Appellant to three years’ probation.      Anders Brief at 6-8.

Although counsel recites the events leading up to the Retail Theft Charge, she

provides no details regarding the events leading to the charge of Disorderly

Conduct. Id. In addition, counsel fails to discuss the statutes defining the

elements of the crimes before she summarily concludes Appellant’s issues are

frivolous.3    We, thus, conclude counsel has failed to comply with the

requirements of Anders.

       Accordingly, we deny counsel’s Application to Withdraw as Counsel and

remand for the filing of a compliant Anders brief or an advocate’s brief within


____________________________________________


3 Counsel does provide citation to the statute applicable to the Retail Theft
conviction, 18 Pa.C.S. § 3929(a)(1), before observing that Appellant’s
sentence of probation was within the standard range of the sentencing
guidelines and significantly less than the maximum term of seven years’
incarceration that the court could have imposed. See Appellant’s Br. at 7.
Counsel also correctly concludes that the discretionary aspects of sentencing
claim was not raised in a post-sentence motion and is, therefore, waived. Id.
at 8.

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14 days of the date of this Memorandum. Appellant and the Commonwealth

may respond within 14 days of counsel’s filing of her brief.

      Application to Withdraw as Counsel denied. Jurisdiction retained.




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