J-S30016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

TYYA M. BARNES

                            Appellant                      No. 1918 MDA 2016


             Appeal from the Judgment of Sentence June 12, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002483-2013


BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                                   FILED JULY 26, 2017

        Appellant, Tyya M. Barnes, appeals from the judgment of sentence of

life imprisonment, imposed June 12, 2014, following a jury trial resulting in

his conviction for second degree murder, robbery, conspiracy, and firearms

not to be carried without a license.1 Additionally, Appellant’s counsel, Caleb

K. Shreve, Esquire, seeks to withdraw his representation of Appellant

pursuant     to   Anders      v.   California,   87   S.   Ct.   1936   (1967)   and

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

counsel’s petition to withdraw and remand for the filing of a proper Anders

brief or a merits brief.



____________________________________________


1
    See 18 Pa.C.S. §§ 2502(b), 3701(a)(1), 903, 6106(a)(1), respectively.
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       On March 4, 2013, Iliana Luciano drove Courtney Jackson, her

boyfriend, to meet with an acquaintance in Harrisburg, Pennsylvania. See

Notes of Testimony (N.T.), 6/9/14 – 6/12/14, 25, 29-31. Unbeknownst to

her, Mr. Jackson was meeting Layton Potter to sell him drugs. Id. at 29-31,

235-39.     After approximately an hour and one-half of no contact, Ms.

Luciano attempted to call Mr. Jackson approximately fifteen times.     Id. at

33-35.

       Mr. Potter met Mr. Jackson twice that night, the last time around 8:00

p.m.     Id. at 240-245.   At that time, he observed Appellant and Shane

Holloway across the street.    Id. at 248-49.   Mr. Jackson indicated to Mr.

Potter that he was going to conduct a drug transaction with Appellant and

Mr. Holloway, but he first took Mr. Potter home. Id. at 250-51. Mr. Potter

advised him not to make the sale, and the two men parted. Id. at 260-62.

       Between 8:00 p.m. and 8:30 p.m., a bystander discovered Mr. Jackson

lying face down in the alleyway near the corner store, covered in blood,

without a pulse, and foaming from the mouth.          Id.   at 175-76.    Mr.

Jackson’s hands were outstretched, as if he had been running away. Id. at

176, 181-82. Near Mr. Jackson’s body, a cell phone rang repeatedly. Id. at

181-82. He had been shot eight times in the chest, arm, and back. Id. at

61-63, 81-91.

       Police recovered fired shell casings from a .40 caliber and .25 caliber

gun. Id. at 448-49. Police officers also recovered Mr. Jackson’s cell phone;

the last call received and answered by Mr. Jackson, at 7:52 p.m., was from a

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number belonging to Appellant. Id. at 372-74, 391. Security footage from

the corner store showed Mr. Jackson meeting with Appellant and Mr.

Holloway, and walking off together. Id. at 396-99.

      The day after the murder, Appellant told his godsister, Timothea

Anders, that he and Mr. Holloway shot Mr. Jackson.            Id. at 435-36.

Appellant claimed that it was an accident, specifically, that Mr. Jackson had

grabbed Mr. Holloway and Mr. Holloway shot him. Id. at 436. On March 9,

2013, Ms. Anders gave a statement to the police implicating Appellant and

Mr. Holloway. Id. at 437-39..

      In June 2014, a jury convicted Appellant of the above charges.

Appellant filed a post-sentence motion, which the court denied.      Appellant

timely appealed, but his appeal was dismissed for failure to file a brief. See

Order, 5/27/15, at 1985 MDA 2014. Appellant filed a petition seeking relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and

his direct appeal rights were reinstated nunc pro tunc.

      Appellant timely appealed, and the court issued an order directing

compliance with Pa.R.A.P. 1925(b). Counsel filed a statement of intent to

file an Anders/McClendon brief. The court did not issue an opinion.

      On February 22, 2017, appellate counsel filed in this Court an Anders

brief and application to withdraw as counsel. The brief sets forth the sole

issue Appellant seeks to raise on appeal:

      Did the [c]ourt err by allowing a magistrate judge initial in place
      of a signature on Appellant’s criminal complaint?


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J-S30016-17



Anders Brief at 6 (unnecessary capitalization omitted).

     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 Santiago,

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,
     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, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

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Anders and Santiago, only then may this Court “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

       In the instant matter, Attorney Shreve’s Anders brief does not comply

with the above-stated requirements. The brief avers that Attorney Shreve

supplied Appellant with a copy of his Anders brief and a letter explaining the

rights enumerated in Nischan.2 Although the brief includes a summary of

the relevant procedural history, it does not include a factual summary, nor

does it refer to the portions of the record that could arguably support

Appellant’s claim.3 The sole issue Attorney Shreve sets forth states that a

magisterial district judge may use a facsimile signature in lieu of an original

signature. See Anders Brief at 9.

       In his brief, Attorney Shreve does not conclude that this issue is

frivolous. Id.; see also Santiago, 978 A.2d at 361. Nor does he explain

why, if the issue was not frivolous, Appellant seeks to raise it. See Anders

Brief at 9.     Attorney Shreve’s application to withdraw as counsel does

explain the reasons Appellant’s issue is frivolous, but similarly does not cite



____________________________________________


2
  Appellant has not filed a response to counsel’s Anders brief.
3
  The brief also repeatedly refers to Appellant as “she,” while Appellant is
male, giving rise to concerns that Attorney Shreve has not adequately
reviewed the record or spoken with Appellant.



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to the record to support this claim. See Application to Withdraw, 2/22/17,

at 1-3.

        Thus, we remand for preparation of a proper advocate brief addressing

any meritorious issues counsel may discover or, if in counsel’s assessment

the appeal remains frivolous, an Anders compliant brief accompanied by a

petition to withdraw. The amended brief shall be submitted within forty-five

days.

        In light of our disposition of counsel’s brief, we deny Appellant’s

applications for relief without prejudice, as he is still represented by counsel.

Pennsylvania courts do not permit hybrid representation on appeal.          See

Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993).             In the event

that counsel files another Anders brief, Appellant is free to respond. See

Orellana, 86 A.3d at 879-80.

        Appellant’s applications for relief and for extension of time are denied

without prejudice. Case remanded. Jurisdiction retained.




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