J-S54039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE MANUEL FEBRES                         :
                                               :
                       Appellant               :   No. 601 MDA 2019

         Appeal from the Judgment of Sentence Entered March 22, 2019
       In the Court of Common Pleas of Mifflin County Criminal Division at
                        No(s): CP-44-CR-0000164-2018


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

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 13, 2019

        Appellant, Jose Manuel Febres, appeals from the Judgment of Sentence

entered in the Mifflin County Court of Common Pleas following his conviction

for Criminal Attempt-Criminal Homicide, two counts Aggravated Assault,

Terroristic Threats, two counts Recklessly Endangering Another Person

(“REAP”), and Simple Assault.1 With this appeal, Appellant’s counsel has filed

a Petition to Withdraw as Counsel and an Anders2 brief. We conclude that

counsel’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.


____________________________________________


1 18 Pa.C.S. §§ 901(a), 2702(a), 2706(a)(1), 2705, and 2701(a)(1),
respectively.

2   Anders v. California, 386 U.S. 738 (1967).
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       A detailed recitation of the facts and procedural history is not necessary

to our disposition. Briefly, following a jury trial, Appellant was convicted of the

above crimes. On March 22, 2019, the trial court sentenced Appellant to an

aggregate term of 21 to 42 years of imprisonment. 3 Appellant did not file a

post-sentence motion.

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

Statement of Intent to File an Anders Brief. See Pa.R.A.P. 1925(c)(4).

Accordingly, the trial court did not file a Rule 1925(a) Opinion.

       Appellant’s counsel filed an Anders Brief4 and a Petition to Withdraw as

Counsel with this Court. Counsel attached to his Brief a copy of a letter he

sent to Appellant informing him that he filed a Petition to Withdraw, and of his

right to retain new counsel or raise any additional points. Appellant did not file

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

____________________________________________


3 For sentencing purposes, the trial court merged two counts Aggravated
Assault, Terroristic Threats, one count REAP, and Simple Assault convictions
with the Criminal Attempt-Criminal Homicide conviction.

4 Counsel filed one document which contains his Petition to Withdraw as
Counsel, and what appear to be two separate Anders briefs, one entitled
“Brief in Accordance with Commonwealth v. Santiago, 978 A[.]2d 349
(Pa[.] 2009)” and the other with the heading “Commonwealth v. Jose
Manuel Febres. Appeal from Judg[]ment of Sentence of the Court of
Common Pleas, Criminal Trial Docket No. CP 44 CR 164 2018 dated March 22,
2019.” Each Brief contains questions presented, a factual and procedural
history, brief argument, and a conclusion. The document is consecutively
paginated. Therefore, we will cite to this document as “Anders Brief.”

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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 his 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

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

2007) (citations omitted).

      In the instant matter, counsel confirms that he sent Appellant a copy of

the Anders Brief and Petition to Withdraw, as well as a letter explaining to


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Appellant that he has the right to retain new counsel, proceed pro se, or to

raise any additional points. Nonetheless, our review of the Anders Brief

indicates counsel did not comply with the requirements set forth by the

Pennsylvania Supreme Court in Santiago, supra. Counsel identifies three

issues that may have arguable merit: (1) a challenge to the sufficiency of

evidence; (2) a challenge to the sentence; and (3) newly discovered

evidence.5 Anders Brief at 3, 5-6. 8-9. However, counsel fails to adequately

state the reasons for concluding that each of the issues that may have

arguable merit are frivolous.

       With respect to the sufficiency challenge, counsel purports to challenge

the sufficiency of evidence supporting all seven of Appellant’s convictions. Id.

at 8. However, he does not set forth the statutes defining the elements of the

crimes, or which element of which crime his client would challenge as not

proven. Rather, he summarizes the evidence in one sentence and then

concludes that the evidence was sufficient to support the guilty verdict. Id.

Because counsel does not adequately articulate the relevant facts of record,

controlling case law, and/or statutes on point to support his conclusion that

the issue lacks merit, he fails to satisfy the requirements of Anders.

Santiago, 978 A.2d at 361.



____________________________________________


5 Although counsel introduces this as a credibility challenge, it is an allegation
that Appellant learned after trial that the victim lied on the stand regarding
the reason she left her job. See Anders Brief at 3.

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      With respect to the sentencing challenge, counsel notes that Appellant

has a significant criminal history, is a repeat felony offender, and was

sentenced in the high end of the guidelines. Anders Brief at 2-3, 8-9. He does

not cite to case law and/or statutes, and his argument is unclear as to whether

Appellant challenges the legality or the discretionary aspects of his sentence.

Id. Counsel fails to state his reasons for concluding that the issue is frivolous,

and therefore, has failed to satisfy the requirements of Anders. Santiago,

978 A.2d at 361.

      With respect to Appellant’s newly discovered evidence allegation,

counsel summarily concludes that the information regarding the victim’s

credibility would have had a “de minimis impact[.]” Anders Brief at 3. Counsel

does not articulate the relevant facts of record, controlling case law, and/or

statutes on point, and has not provided any reason for his conclusion that

there is no merit to the issue. Santiago, 978 A.2d at 361. Thus, counsel failed

to comply with the requirements of Anders.

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

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

14 days of the date of this Order. Appellant and the Commonwealth may

respond within 14 days of counsel’s filing of his Brief.

      Petition to Withdraw as Counsel denied. Jurisdiction retained.




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