J-S07029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOMINIC JARRELL MCLAURIN                   :
                                               :
                       Appellant               :    No. 804 MDA 2018

          Appeal from the Judgment of Sentence Entered May 2, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000650-2016


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED APRIL 22, 2019

        Dominic Jarrell McLaurin appeals from his judgment of sentence,

imposed on May 2, 2018, following a jury trial resulting in convictions for

possession with intent to deliver a controlled substance, possession of a

controlled substance, possession of drug paraphernalia, and criminal use of a

communications        facility.1   In   addition,   appointed   counsel,   Matthew

Welickovitch, Esq., seeks to withdraw from his representation of McLaurin

pursuant to Anders v. California, 386 U.S. 738 (1967). We conclude that

Attorney Welickovitch’s Anders brief is deficient. Therefore, we deny

counsel’s petition to withdraw and direct counsel to file either a compliant

Anders brief or an advocate’s brief.

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(16), (32), (30), and 35 P.S. § 7512(a), respectively.
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      We derive the following statement of facts and procedural history, briefly

summarized for background, from the trial court’s opinions. See Tr. Ct.

Suppression Op., 4/11/17; Tr. Ct. Pa.R.A.P. 1925(b) Op., 9/24/18.            On

January 6, 2016, Troopers Tyson Havens and Edward Dammer of the

Pennsylvania State Police were on patrol in Williamsport when they

encountered McLaurin in a black Chevy Impala sedan in the parking lot of a

Nittany Minute Mart. McLaurin, along with another man, were rummaging

around in the vehicle that had both doors open. The troopers, surmising that

McLaurin and the other individual were looking for drugs, pulled into a parking

spot next to the Chevy Impala. When Trooper Havens approached the vehicle,

McLaurin was in the driver’s seat and the other individual was already inside

the convenience store. Trooper Havens questioned McLaurin regarding the

registration of the vehicle and whether he had “dropped a joint[.]” McLaurin

denied that accusation and instead asserted that he had dropped paperwork.

      Trooper Havens also indicated that he smelled marijuana, but McLaurin

denied having any in the car. At this point, Trooper Dammer, who was

standing at the front passenger window, directed McLaurin to lower the

passenger window. After the window was lowered, Trooper Dammer also

stated that he smelled marijuana. Before he could inquire further, the troopers

noticed that the second individual, who had gone into the convenience store,

was attempting to briskly walk away. Trooper Dammer pursued the individual

but to no avail. Thereafter, Trooper Dammer returned to the scene, parking

directly behind the Chevy Impala.

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       Trooper    Havens      continued        to   question   McLaurin   and   request

identification, while Trooper Dammer reiterated that he smelled marijuana.

Trooper Dammer proceeded to lean into the passenger side of the vehicle, so

that his upper body was inside the car. It was from this position that Trooper

Dammer discovered eight packets of heroin in the front passenger door, but

no marijuana was found. The troopers removed McLaurin from the vehicle,

and searched and handcuffed him. Attendant to the search, they seized

$1,626.00 in cash and a cell phone. After obtaining a warrant, Trooper Havens

discovered incriminating information on the cell phone.

       McLaurin was charged with the aforementioned offenses, and prior to

trial, he filed a pretrial motion seeking to suppress the heroin and cell phone

discovered in the car. The trial court denied McLaurin’s suppression motion,

determining that both troopers had probable cause to search McLaurin’s car.

McLaurin also filed a motion to preclude the admission of certain records from

prison “intake” forms regarding whether he had engaged in “street drug” use.

McLaurin’s arguments centered on hearsay and relevance contentions. The

trial court also denied this motion.

       After a jury convicted McLaurin in February 2018, the trial court imposed

an aggregate sentence of three to ten years’ incarceration. The instant timely

appeal followed.2 In his court-ordered Pa.R.A.P. 1925(b) statement, McLaurin

sets forth two issues on appeal: 1) Whether the trial court erred by denying
____________________________________________


2We note that this appeal was vacated and reinstated, twice, by this Court
due to the failure of the defense to file a timely docketing statement.

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his suppression motion, and 2) Whether the trial court erred by admitting

certain evidence procured during his intake at the Lycoming County Prison.

The trial court issued a responsive Pa.R.A.P. 1925(a) opinion, which also

referred to the court’s earlier opinion issued in support of the court’s denial of

McLaurin’s suppression motion.

      In this Court, Attorney Welickovitch has filed an Anders brief, raising a

single issue that McLaurin might seek to raise: “Whether the trial court’s

factual findings were supported by the record, and thus the trial court

misapplied the law and erred in denying McLaurin’s motion to suppress?” See

Welickovitch’s Anders Br. at 7.

      “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

      (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,



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        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.

        Counsel also must provide a copy of the Anders brief to his client.
        Attending the brief must be a letter that advises the client of his
        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. Nischan,
        928 A.2d 349, 353 (Pa.Super. 2007), appeal denied, 594 Pa. 704,
        936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa.Super. 2014).

        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).

        In the instant matter, Attorney Welickovitch has supplied McLaurin with

a copy of his Anders brief and a letter explaining the rights enumerated in

Nischan.3 However, Attorney Welickovitch’s Anders brief does not comply

with the above-stated requirements.


____________________________________________


3   McLaurin has not filed a response to counsel’s Anders brief.

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      First, although he does provide the requisite summary of facts, counsel

fails to provide a single citation to the record. See Santiago, 978 A.2d at 361.

Moreover, Attorney Welickovitch fails to articulate why he believes that

McLaurin’s claims are frivolous. See id. Indeed, counsel’s Anders brief more

closely resembles an advocate’s brief by closely detailing McLaurin’s potential

suppression claim but failing to state counsel’s reasoning for concluding that

the issue is frivolous. See Welickovitch’s Anders brief at 14-18. Next, and

perhaps most critically, counsel fails to discuss McLaurin’s potential second

issue on appeal, regarding the admission of certain intake records, entirely.

Instead, this Court is left to surmise that counsel finds the potential second

issue wholly frivolous, without the requisite discussion and analysis by

counsel. This conjecture we decline to undertake. See Santiago, 978 A.2d at

361; Wrecks, 931 A.2d at 720–21.

      In light of our foregoing analysis, we conclude that counsel’s brief fails

to meet the mandates of Anders, as further clarified in Santiago.

Accordingly, we deny Attorney Welickovitch’s petition to withdraw without

prejudice to re-file such a petition.

      We remand this case and direct counsel to file, within sixty days of the

date of this memorandum, either an advocate’s brief or a proper Anders brief

and petition to withdraw. Thereafter, the Commonwealth shall have sixty days

to respond.

      Petition   to   withdraw   as     counsel   denied.   Case   remanded   with

instructions. Jurisdiction retained.

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