J-S48025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    JOHNNY T. BRANFORD

                             Appellant               No. 2018 MDA 2016


       Appeal from the Judgment of Sentence Entered November 2, 2016
                 In the Court of Common Pleas of Berks County
               Criminal Division at No: CP-06-CR-0002592-2015


BEFORE: OTT, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 27, 2018

        Appellant Johnny T. Branford appeals from the November 2, 2016

judgment of sentence entered in the Court of Common Pleas of Berks County

(“trial court”), following his jury convictions of two counts of first degree

murder, two counts of third degree murder, theft by unlawful taking, access

device fraud, possessing instruments of crime, and unauthorized use of an

automobile.1 Appellant’s counsel has filed a petition to withdraw, alleging that

this appeal is wholly frivolous, and filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). Upon review, we remand due to counsel’s failure to

comply with the substantive requirements of Santiago.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a), 2502(c), 3921(a), 4106(a)(1)(ii), 907(a), and
3928(a), respectively.
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      Following Appellant’s counseled filing of a notice of appeal, on December

6, 2016, the trial court ordered him to file a Pa.R.A.P. 1925(b) statement

within twenty-one days.     Appellant failed to comply.    On May 19, 2017,

Appellant’s counsel, Jacob Gurwitz, filed in this Court an Anders brief,

claiming that Appellant’s convictions were supported by sufficient evidence.

On May 24, 2017, Attorney Gurwitz filed a petition to withdraw as counsel.

      On appeal, the Commonwealth correctly pointed out that at no point did

Attorney Gurwitz file a Rule 1925(b) statement in accordance with the trial

court’s December 6, 2016 order. In response, on August 1, 2017, a panel of

this Court issued a memorandum decision remanding this case to the trial

court with instruction to direct Appellant to file a Rule 1925(b) statement nunc

pro tunc within twenty-one days of the trial court’s receipt of the record from

the Superior Court’s Prothonotary.      We also instructed the trial court to

prepare and file a detailed Pa.R.A.P. 1925(a) opinion within sixty days of the

filing of the Rule 1925(b) statement.

      On August 14, 2017, the trial court issued an order directing Appellant

to file a Rule 1925(b) statement. On August 16, 2017, Attorney Gurwitz filed

a Rule 1925(b) statement.     On August 28, 2017, the trial court permitted

Attorney Gurwitz to withdraw from the case. On the same day, the trial court

issued an order appointing John Fielding, Esquire, to represent Appellant on

direct appeal.   On August 29, 2017, the trial court issued another order

directing Appellant to file a Rule 1925(b) statement. On September 28, 2017,

Attorney Fielding filed an “application for extension of time to file concise

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statement nunc pro tunc.” On September 29, 2017, the trial court granted

the extension motion. On October 30, 2017, Attorney Fielding filed a second

motion for extension of time to file a Rule 1925(b) statement nunc pro tunc.

On November 1, 2017, the trial court granted the second motion.                   On

December 14, 2017, instead of filing a court-ordered Pa.R.A.P. 1925(b)

statement, Attorney Fielding filed a statement of intent to file an Anders brief

under Pa.R.A.P. 1925(c)(4).2 On January 2, 2018, the trial court issued a two-

page Pa.R.A.P. 1925(a) opinion, concluding that no meritorious issues exist

for purposes of direct appeal.

        Attorney Fielding, however, failed to file an Anders brief consistent with

Rule 1925(c)(4) and an Application to Withdraw. Thus, on January 18, 2018,

we issued an order, directing Attorney John Fielding to file in this Court, within

fourteen days of the date of our order, an Application to Withdraw and an

Anders brief, or a Rule 1925(b) statement of errors complained of on appeal

in the trial court.


____________________________________________


2   Rule 1925(c)(4) provides:
        In a criminal case, counsel may file of record and serve on the
        judge a statement of intent to file an [Anders] brief in lieu of filing
        a Statement. If, upon review of the [Anders] brief, the appellate
        court believes that there are arguably meritorious issues for
        review, those issues will not be waived; instead, the appellate
        court may remand for the filing of a Statement, a supplemental
        opinion pursuant to Rule 1925(a), or both. Upon remand, the trial
        court may, but is not required to, replace appellant’s counsel.
Pa.R.A.P. 1925(c)(4).




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         Because Attorney Fielding failed to comply with our January 18, 2018

order, we issued another order on February 14, 2018 remanding this case to

the trial court for a period of thirty days to hold a hearing to determine

whether Attorney Fielding had abandoned Appellant and to take any further

action as required to protect Appellant’s right to appeal.

         On February 20, 2018, Attorney Fielding filed an Anders brief in this

Court,3 raising a single assertion of error: “Did the trial court err in finding

that there were no non-frivolous issues to [sic] for appeal.”4 Anders Brief at

5. In the argument section of his Anders brief, however, Attorney Fielding

raised three specific issues. First, he argues, without specifying the crime or

elements of the crime, that the evidence was sufficient to convict Appellant of

two counts of first degree murder, two counts of third degree murder, theft

by unlawful taking, access device fraud, possessing instruments of crime, and

unauthorized use of an automobile. Second, Attorney Fielding claimed that

Appellant did not have an appealable, non-frivolous weight of the evidence

issue.    Finally, Attorney Fielding claims Appellant cannot raise a claim for

ineffective assistance of counsel on direct appeal.


____________________________________________


3 We are troubled by Attorney Fielding’s statement in his Anders brief that
“[a]t no time has Appellant been in contact with [Attorney Fielding] to discuss
any issues” raised on appeal. Anders Brief at 7. Attorney Fielding has an
obligation to contact his client prior to filing a brief in this Court. Moreover,
Attorney Fielding fails to mention in his recitation of the facts how the victims
in this case were killed. The factual history lacks detail and substance.
4 On February 26, 2018, Attorney Fielding filed an Application to Withdraw in
this Court.

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      When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.   Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).    It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

      Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

her Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention. Accordingly, we conclude that counsel has satisfied the

procedural requirements of Anders.

      We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:




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      [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 (emphasis added). Here, our review of counsel’s

brief indicates that he has failed to comply in any meaningful way with the

briefing requirements of Santiago and our rules of appellate procedure

relating to briefing. See Pa.R.A.P. 2111-2119. Specifically, the Anders brief

lacks, among other things, a coherent statement of the questions involved, a

detailed statement of the case (facts and procedural history) with citation to

the record, and an argument section that discusses the issues raised in the

statement of questions involved with citations to the record and proper and

controlling legal authority. We, therefore, conclude that Attorney Fielding has

failed to satisfy the minimum requirements of Anders/Santiago.

      As a result, we direct Attorney Fielding either to re-file his Anders brief

in this Court consistent with the substantive requirements of Santiago, or to

file a Rule 1925(b) statement in the trial court within thirty days of this

decision. If Attorney Fielding files a Rule 1925(b) statement, the trial court is

directed to file and prepare a detailed Rule 1925(a) opinion within sixty days

of the filing of the Rule 1925(b) statement. Within thirty days of the trial

court’s issuance of a Rule 1925(a) opinion, Attorney Fielding shall file an

advocate’s brief that is compliant with our rules of appellate procedure.


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     Case remanded. Jurisdiction retained.




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