J-S40023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DESMOND LAMAR SNEAD                        :
                                               :
                       Appellant               :   No. 40 WDA 2019

         Appeal from the Judgment of Sentence Entered August 9, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0004162-2017


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED OCTOBER 21, 2019

        Desmond Lamar Snead appeals from the judgment of sentence entered

following his conviction for aggravated assault.1 Snead’s counsel has filed an

Anders2 brief and request to withdraw. We deny counsel’s request to

withdraw at this time.

        At Snead’s non-jury trial, the Commonwealth presented the testimony

of the victim. The victim testified that while she was waiting for a bus, a car

carrying Snead, who was the victim’s neighbor, and Snead’s codefendant

stopped nearby. Snead and the codefendant started firing guns from the car

windows, striking the victim in her thigh. The victim thereafter identified

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*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2702(a)(1).

2   Anders v. California, 386 U.S. 738 (1967).
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Snead from a photo array. The Commonwealth also presented two police

detectives, who testified to recovering two 9 millimeter shell casings near the

scene of the shooting, and recounted the victim’s identification of Snead.

       The court found Snead guilty and sentenced him to serve four to eight

years’ incarceration. Shortly after sentencing, Snead’s counsel requested to

withdraw, and newly appointed counsel entered his appearance.3 Snead’s new

counsel filed a post sentence motion, raising the issue of the sufficiency of the

evidence. The motion was denied by operation of law, and Snead filed a timely

notice of appeal.

       The trial court ordered Snead to file a statement of errors complained

of on appeal. See Pa.R.A.P. 1925(b). In lieu of filing a statement, Snead’s

counsel filed a statement of intent to file an Anders brief. See Pa.R.A.P.

1925(c)(4).4 The trial court did not file a Pa.R.A.P. 1925(a) opinion.




____________________________________________


3 Snead’s sentencing took place on August 9, 2018. Counsel filed a motion to
withdraw on August 17, and new appointed counsel entered his appearance
on August 20. On August 22, Snead’s new counsel filed a petition to reinstate
Snead’s appeal rights nunc pro tunc, which the trial court granted. Although
the proper filing for the reinstatement of appeal rights is a PCRA petition, see
Commonwealth v. Bennett, 930 A.2d 1264, 1269 (Pa. 2007), here, the trial
court had jurisdiction to extend Snead’s deadline for filing a post-sentence
motion, see Commonwealth v. Dreves, 839 A.2d 1122, 1128 n.6
(Pa.Super. 2003) (en banc), and our jurisdiction over the appeal is thus
unaffected.

4Counsel thereafter filed an Anders brief and request to withdraw in the trial
court. The court denied the request, stating that it no longer had jurisdiction,
and directed counsel to file the brief and withdraw request in this Court.

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        Before we address the issues on appeal, we must pass on counsel’s

request to withdraw. Commonwealth v. Orellana, 86 A.3d 877, 879

(Pa.Super. 2014). An Anders brief that accompanies a request to withdraw

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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel must

provide a copy of the Anders brief to the client, along with a letter that

advises the client of the 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.” Orellana, 86 A.3d at 880 (quoting Commonwealth v.

Nischan, 928 A.2d 349, 353 (Pa.Super. 2007)).

        If we determine that counsel has satisfied these requirements, we then

examine the record to determine if the appeal is wholly frivolous.

Commonwealth v. Dempster, 187 A.3d 266, 271-72 (Pa.Super. 2018) (en

banc). If we so find, we may grant counsel leave to withdraw and dismiss the

appeal. Id. at 271. In contrast, “[i]f counsel does not fulfill the aforesaid


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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).” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).

       Here, in the Anders brief, counsel has summarized the procedural and

factual history of the case, and identified one issue, i.e., the sufficiency of the

evidence. However, counsel concluded the appeal of this issue lacks merit,

and stated that counsel “cannot identify any meritorious issues to raise on

direct appeal.” Anders Br. at 9, 14. The proper standard for withdrawal under

Anders requires counsel to conclude that the appeal is wholly frivolous, rather

than lacking in merit.5

       In addition, in conjunction with his withdraw request, counsel sent a

letter to Snead advising the following: “If the Court accepts my assessment

of your case, the appeal will be denied and I will be permitted to withdraw

from your case. If the Court grants my request to withdraw, you can continue

your appeal pro se or hire a private attorney to work on your appeal.” Letter,

dated 5/23/19, at 1.

       This advice is erroneous in two respects. First, it fails to advise Snead

that he may raise additional points not addressed by the Anders brief. See

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5 See Wrecks, 931 A.2d at 722 (stating while counsel seeking to withdraw
from appellate representation of collateral review “is permitted to do so if the
case lacks merit, even if it is not so anemic as to be deemed wholly frivolous,”
“Anders counsel is not permitted to withdraw unless the appeal is wholly
frivolous”).

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Orellana, 86 A.3d at 880. Second, it misadvises Snead that he may only

proceed with the appeal if this Court grants counsel leave to withdraw, when,

in fact, an appellant has a right to file a pro se or counseled brief although still

represented by Anders counsel. See Nischan, 928 A.2d at 353 (citing

Commowealth v. Baney, 860 A.2d 127, 130 (Pa.Super. 2004)). We

therefore conclude that counsel’s withdraw request is deficient.

      Counsel is hereby instructed to file either an advocate’s brief or a brief

that complies with the Anders requirements and a revised request to

withdraw within 30 days of the filing of this memorandum. If counsel does,

again, file a request in this Court to withdraw as counsel, counsel must advise

Snead of his immediate right to file an appellate brief pro se or through

retained counsel, and to raise additional points.

      Motion for Leave to Withdraw as Counsel denied. Panel jurisdiction

retained.




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