J-S25015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT
                                               :         OF PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ADAM LENARD SWAN                           :
                                               :
                       Appellant               :     No. 1649 MDA 2018

        Appeal from the Judgment of Sentence Entered April 27, 2018
                In the Court of Common Pleas of York County
             Criminal Division at No: CP-67-CR-0004687-2017


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

MEMORANDUM BY STABILE, J.:                         FILED: SEPTEMBER 19, 2019

       Appellant, Adam Lenard Swan, appeals from the judgment of sentence

entered on April 27, 2018 in the Court of Common Pleas of York County. In

the brief filed by his counsel pursuant to Anders v. California, 386 U.S. 738

(1969), as refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), Appellant contends that the guilty verdict on aggravated assault and

possession charges was against the weight of the evidence and that the trial

court erred by denying his motion to suppress.1 His counsel concurrently filed


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1 In Appellant’s post-sentence motion, appointed trial counsel Jennifer M.
Smith raised the weight of the evidence issue as well as an issue regarding
calculation of Appellant’s sentence. The trial court denied the motion by order
entered September 4, 2018, one week after the trial court entered an order
withdrawing the appointment of Attorney Smith and simultaneously
appointing current counsel William H. Graff, Jr. On October 22, 2018, Mr.
Graff filed a Rule 1925(b) statement raising the weight and suppression issues
presented in his Anders brief.
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a petition for leave to withdraw. For the reasons explained below, we deny

counsel’s petition for leave to withdraw and remand.

     Because the facts of the case are irrelevant to our disposition, we

dispense with summarizing them here and instead proceed to discuss

counsel’s request to withdraw, a task we must undertake regardless of the

facts and prior to any discussion of the merits of any issues on appeal.

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005). As this

Court recognized in Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super.

2013), our Supreme Court’s decision in Santiago did not change the

procedural requirements for requesting withdrawal from representation. As

outlined in Cartrette:

     Counsel must: 1) petition the court for leave to withdraw stating
     that, after making a conscientious examination of the record,
     counsel has determined that the appeal would be frivolous;
     2) furnish a copy of the brief to the defendant; and 3) advise the
     defendant that he or she has the right to retain private counsel or
     raise additional arguments that the defendant deems worthy of
     the court’s attention.

Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)).

     We    conclude      counsel   has    essentially   satisfied   the   procedural

requirements set forth in Anders. While counsel does not assert that the

appeal would be “frivolous,” he does offer his conclusion, based on a

“conscientious examination of the entire record, including all notes of

testimony, that an appeal of the lower court’s Order would be meritless.”


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Petition to Withdraw, 2/14/19, at ¶ 9.         In addition, counsel furnished a copy

of the appellate brief to Appellant and advised Appellant of his right to retain

new counsel or act on his own behalf to raise additional arguments or points

for this Court’s consideration. Id. at ¶ 11.2

       Having concluded counsel largely satisfied the procedural requirements

of Anders, we must ascertain whether the brief satisfied the substantive

mandates prescribed in Santiago.               In Santiago, our Supreme Court

announced:

       [I]n the Anders brief that accompanies court-appointed counsel’s
       petition to withdraw, counsel 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.

Santiago, 978 A.2d at 361.

       In the Anders brief, Counsel included a summary of the procedural

history. Anders Brief at 5-6. While counsel did not set forth the relevant

facts in the “factual history” segment of the brief, we acknowledge he did

incorporate facts, with citations to the record, in the argument section of the




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2 Appellant has filed a pro se brief with this Court asserting trial court error
regarding the motion to suppress and a miscarriage of justice with respect to
allegedly false testimony of two police officers. Appellant’s Pro Se Brief at 28-
30.

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brief.     Id. at 8-10; 12-14.      Counsel has generally satisfied the first

requirement.

         The second required element of an Anders brief is to reference anything

in the record that counsel believes arguably supports the appeal. In his brief,

counsel raises three issues in two questions presented, i.e., a) whether the

verdicts of aggravated assault and possession with intent to deliver (“PWID”)

were against the weight of the evidence, and b) whether the trial court erred

in denying Appellant’s pre-trial motion to suppress.       Anders Brief at 3.

Counsel’s suggested answer to these questions is that “the court’s decision

was free of legal error and supported by evidence of record.”         Id.   More

specifically, counsel states that “the court correctly held that police had

reasonable suspicion to believe that Appellant was engaged in criminal

activity” and “the jury’s finding that Appellant was guilty of Aggravated Assault

and Possession With Intent to Deliver was not against the weight of the

evidence.”      Id.   Counsel then argues that Appellant’s convictions for

aggravated assault and PWID should stand as they do not shock one’s sense

of justice, id. at 8-9, and that the lower court’s denial of Appellant’s motion

to suppress evidence should stand. Id. at 12. In conclusion, counsel requests

that this Court affirm the orders of the lower court and grant his petition to

withdraw. Id. Counsel merely presents arguments that promote affirmance

of the trial court’s rulings. Upon review, we cannot conclude that counsel has

satisfied the second element of Anders.


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        Although an appellant’s counsel is not required to advocate strongly in

favor of issues he believes are frivolous, “[a] brief that essentially argues for

affirmance is unacceptable.” Commonwealth v. Vilsaint, 893 A.2d 753, 758

(Pa. Super. 2006) (citing Commonwealth v. Greer, 314 A.2d 513, 515 (Pa.

1974)). In an Anders brief, counsel may not simply demonstrate by reference

to the record why the appeal is meritless. Commonwealth v. McClendon,

434 A.2d 1185, 1187 (Pa. 1981). When counsel seeks to withdraw, he “may

not assume the role of amicus curiae when presenting to the court anything

that might arguably support an appeal.” Id. (quoting Commonwealth v.

Perry, 346 A.2d 554 (Pa. 1975)). The main thrust of Anders is to ensure a

careful assessment of any available claim that an appellant might have.

McClendon, 434 A.2d at 1188. “That end is achieved by requiring counsel

to conduct an exhaustive examination of the record and by also placing the

responsibility on the reviewing court, to make an independent determination

of the merit of the appeal.”         Id.3      Instantly, counsel essentially has done

nothing more than present facts that support affirmance of the verdicts and

the trial court’s suppression ruling.4



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3   But see infra at 6-7, discussing Santiago.

4  For example, we observe that Appellant in his pro se brief challenges the
911 identification received by police as a basis to find that police had no
reasonable suspicion to stop or detain him. Those facts might very well reflect
something in the record that could arguably support Appellant’s appeal, even
if ultimately the issue proves to be wholly frivolous.

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      The third element of Anders requires counsel to set forth the conclusion

that the appeal is frivolous. Counsel does not offer that conclusion but instead

asks that this Court affirm the decision of the trial court. The fourth element

requires counsel to state his reasons for concluding that the appeal is

frivolous.   Counsel has not announced his conclusion that the appeal is

frivolous or offered any reasons for concluding the appeal is frivolous.

Instead, as noted, counsel presents argument in support of affirmance.

      In Santiago, the Pennsylvania Supreme Court set forth a significant

adjustment in our decisional law concerning Anders. The Court was

persuaded that requiring counsel to articulate the basis for his or her

conclusion of frivolity advances the twin functions of an Anders brief to assist

the intermediate appellate courts in determining whether counsel has

conducted a thorough and diligent review of the case to discover appealable

issues and whether the appeal is indeed frivolous. Santiago, 978 A.2d at

360. To these ends, the Court then held with respect to the Anders criteria

addressing frivolity that counsel must set forth counsel’s conclusion the

appeal is frivolous and state counsel’s reasons for concluding why that is so.

The Court made this mandatory. Id. A finding of frivolity is not the same as

the absence of merit. See McClendon, supra. Accordingly, we are likewise

constrained to conclude that counsel’s Anders brief does not meet the third

and fourth criteria of Anders regarding frivolity.




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       Based on the foregoing, we conclude counsel’s brief is substantively

inadequate and fails to meet the Anders requirements. Therefore, we deny

counsel’s petition to withdraw and remand for counsel to file either a proper

advocate’s brief or a brief in full compliance with Anders as refined by

Santiago. Counsel must file either brief within 30 days of the filing of this

memorandum, and the Commonwealth may file its brief within 30 days of the

filing of Appellant’s brief. In order to afford counsel the opportunity to review

the certified record, we remand the case to the trial court.5

       Petition to withdraw denied. Case remanded with instructions. Panel

jurisdiction retained.




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5 In the event counsel files an Anders brief, it is not necessary for Appellant
to re-file his pro se brief. However, should Appellant wish to supplement his
previous brief, he must do so within 30 days of the filing of counsel’s Anders
brief. The Commonwealth may file a response to such supplement within 14
days of the filing of said supplement or within 30 days of the filing of counsel’s
Anders brief, whichever is later.

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