J-S33045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYHEEM MELTON                              :
                                               :
                       Appellant               :   No. 3391 EDA 2019

       Appeal from the Judgment of Sentence Entered November 23, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006840-2015


BEFORE:       DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 03, 2020

        Appellant Tyheem Melton appeals nunc pro tunc from the judgment of

sentence entered in the Court of Common Pleas of Philadelphia County on

November 23, 2016.         Appellant’s counsel also has filed both a petition for

leave to withdraw as counsel and an accompanying brief pursuant to Anders

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

A.2d 349 (Pa. 2009). Following our review, we remand with instructions and

deny counsel’s petition to withdraw.

        The trial court set forth the procedural history and relevant facts herein

as follows:

             On November 23, 2016, [Appellant] pled nolo contendere to
        two counts of murder in the third degree (18 Pa.C.S. § 2502(c))
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       and one count of possession of a firearm by prohibited person (18
       Pa.C.S. 6105).[1] The plea was entered pursuant to a plea
       agreement that provided that the [c]ourt's aggregate sentence
       would be no lower than 20 to 40 years[’] incarceration, but did
       not otherwise specify the sentence.[2] On that same day, the
       [c]ourt sentenced [Appellant] to two concurrent terms of 20 to 40
       years[’] incarceration for each murder charge and a consecutive
       term of 5 to 10 years incarceration for possession of a firearm, for
       an aggregate sentence of 25 to 50 years[’] incarceration.
       [Appellant] was represented by Francis Carmen, Esquire, for his
       nolo contendere plea and sentencing. No post-sentence motions
       were filed and no direct appeal was taken.
              On November 21, 2017, [Appellant] filed a timely pro se
       petition under the Post Conviction Relief Act (“PCRA”) seeking
       reinstatement of his rights to file post-sentence motions and an
       appeal. Gary S. Server, Esquire was appointed to represent
       [Appellant] on March 29, 2018. On May 29, 2018, Mr. Server filed
       an amended PCRA petition ("Amended Petition''). On August 2,
       2019, after reviewing the Amended Petition and the
       Commonwealth's Motion to Dismiss, the [c]ourt denied
       [Appellant’s] claim for reinstatement of his right to file a post-
       sentence motion, but granted an evidentiary hearing on the claim
       regarding trial counsel's failure to file a direct appeal. On October
       25, 2019, following an evidentiary hearing, the [c]ourt granted
       [Appellant’s] PCRA Petition in part, and reinstated his direct
       appeal rights.
              [Appellant] has now appealed from the judgment entered
       by the PCRA [c]ourt on the grounds that: -“the PCRA [c]ourt erred
       when it reinstated [Appellant’s] appellate rights nunc pro tunc
       without also reinstating [Appellant’s] Post Sentence Motion right
       to seek reconsideration of sentence where trial counsel was
       ineffective for failing to file for reconsideration when the
       [s]entencing [c]ourt had some discretion as to the length of the
       sentence and where there was a substantial question as to the
       sentence because it was unduly harsh and excessive under the
       circumstances and contrary to the norms underlying the
____________________________________________


1 The remaining charges were dropped. See Written Nolo Contendere Plea
Colloquy at 1.
2 Specifically, a handwritten notation on the nolo contendere plea colloquy

form indicated that Appellant would be sentenced to “no less than 20 year
minimum specific min and max to Be set By Judge.” See Written Nolo
Contendere Plea Colloquy at 1.

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      Sentencing Code.” [Appellant’s] 1925(b) Statement at ¶1. For the
      reasons set forth below, [Appellant’s] claim is without merit and
      the judgment of sentence should be affirmed.

                              FACTUAL BACKGROUND

             The factual basis proffered by the Commonwealth for
       defendant's nolo contendere plea established the following:
             Around the time of the two homicides here at issue,
       [Appellant] frequented the Corral Bar on Market Street in
       Philadelphia, where he sold drugs from the back of the bar along
       with three associates. N.T. 11/23/2016 at 14, 19-20. Also selling
       drugs in that bar was Troy Wimberley, one of the decedents in
       this case, who did his drug business in the front of the bar. N.T.
       11/23/2016 at 20. In the weeks leading up to the homicides,
       there were several confrontations between [Appellant] and
       Wimberley, one of which led to Wimberley to swing at
       [Appellant]. 11/23/2016 at 19-21. There were also several
       confrontations between Herbie one at [Appellant’s] associates,
       and Wimberley, including one during which Herbie fired a gun at
       Wimberley, missing him. N. I. 11/23/2016 at 20.
             On the evening of April 6, 2012, [Appellant] entered the bar,
       and during a confrontation with Wimberley, pulled out a handgun
       and fired at Wimberley multiple times. N.T. 11/12/2016 at 14,
       22-23. Several of the bullets struck Wimberley, killing him. N.T.
       11/23/2016 at 29. In addition, Crystal Shadding, who had the
       misfortune of standing behind Wimberley at the time of the
       attack, was struck by an errant bullet, killing her as well. N.T.
       11/23/2016 at 20, 33.
             Following the shootings, [Appellant] fled Philadelphia and
       could not be located by the Fugitive Squad of the Homicide Unit
       for several years. N.T. 11123/2016 at 30-31. He was found in
       Tennessee in October of 2014 after being stopped for a traffic
       violation. Id. During that traffic stop, [Appellant] gave several
       false names. N.T. 11/23/2016 at 31. He was taken into custody
       and returned to Philadelphia.
             [Appellant] has a prior conviction for the crime of
       aggravated assault from 1995, making, him ineligible to possess
       a firearm on the day of the murders. N.T. 11/23/2016 at 31-32.

Trial Court Opinion, filed 1/30/10, at 1-3 (footnote omitted).




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       On November 21, 2019, Appellant filed the instant appeal nunc pro

tunc.3 In an Order filed the next day, the trial court directed Appellant to file

a concise statement of the matters he intended to raise on appeal pursuant to

Pa.R.A.P. 1925(b).        On December 9, 2019, Appellant filed his concise

statement.

       On March 24, 2020, appointed counsel filed a petition seeking to

withdraw his representation and an Anders brief with this Court. Appellant

filed no further submissions thereafter either pro se or through privately-

retained counsel. Before reviewing the merits of this appeal, we first must

determine     whether      counsel     has     fulfilled   the   necessary   procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa.Super. 1998).

       To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.         First, counsel must “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.”




____________________________________________


3 The term nunc pro tunc means “now for then.” See Black's Law Dictionary,
at 1069, (Sixth Edition 1990). It is “a phrase applied to acts allowed to be
done after the time when they should be done, with a retroactive effect, i.e.,
with the same effect as if regularly done.” Id. Thus, reinstatement of direct
appeal rights nunc pro tunc denotes that Appellant now has the same direct
appeal rights as he would have had in the beginning.



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Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which

he or she:

      (1) provide[s] a summary of the procedural history and facts, with
      citations to the record; (2) refer[s] to anything in the record that
      counsel believes arguably supports the appeal; (3) set[s] forth
      counsel’s conclusion that the appeal is frivolous; and (4) state[s]
      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, supra, 978 A.2d at 361. Finally, counsel must furnish a copy of

the Anders brief to his or her client and advise the client “of [the client’s]

right to retain new counsel, proceed pro se or raise any additional points

worthy of this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896,

898 (Pa.Super. 2007).

      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n. 5; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of the issues raised by counsel. ... [T]his

review does not require this Court to act as counsel or otherwise advocate on

behalf of a party. Rather, it requires us only to conduct a review of the record

to ascertain if[,] on its face, there are non-frivolous issues that counsel,

intentionally or not, missed or misstated. We need not analyze those issues

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of arguable merit; just identify them, deny the motion to withdraw, and order

counsel to analyze them”). It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

      Herein, counsel contemporaneously filed his petition to withdraw as

counsel and Anders brief. His brief and petition substantially comply with the

technical requirements of Anders and Santiago.         Moreover, counsel has

provided this Court with a copy of the letter he sent to Appellant advising him

of his right to retain new counsel, proceed further with his case pro se, and

raise any points that he deems worthy of this Court’s attention. See

Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore,

we must review the entire record and analyze whether this appeal is, in fact,

wholly frivolous.

      Our review begins with the claims Appellant raises in his Anders brief:

      THE GLOBAL QUESTION

      Whether there is anything in the record that might arguably
      support the appeal that obviates a conclusion that the appeal is
      frivolous?

      SPECIFIC AREAS OF INQUIRY

      Whether the PCRA [c]ourt erred when it reinstated the Appellant's
      direct appeal rights nunc pro tunc without also reinstating the
      Appellant's right to seek reconsideration of sentence where trial
      counsel was ineffective for failing to file for reconsideration when
      the [s]entencing [c]ourt had some discretion as to the length of
      the sentence and where there was a substantial question as to the
      sentence because it was unduly harsh and excessive under the


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J-S33045-20


      circumstances and     contrary    to   the   norms   underlying   the
      Sentencing Code?

Anders brief at 6.

      At the outset, we recognize that where the PCRA court reinstates direct

appeal rights nunc pro tunc based on counsel's ineffectiveness, a defendant is

not automatically entitled to reinstatement of his post-sentence rights nunc

pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089

(2009). Nevertheless, a PCRA court can reinstate a defendant's post-sentence

rights nunc pro tunc if the defendant successfully pleads and proves he or she

had been deprived of the right to file and litigate post-sentence motions as a

result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at 1094 n.9

(noting counsel may be deemed ineffective for failing to file post-sentence

motions when claim requires preservation in trial court for purposes of

appellate review). Compare Commonwealth v. Fransen, 986 A.2d 154

(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of direct

appeal rights nunc pro tunc is not entitled to reinstatement of post-sentence

rights nunc pro tunc unless he requested that relief with PCRA court;

appellant's claim that he was entitled to file post-sentence motions and to

have benefit of evidentiary hearing warranted no relief where appellant did

not plead or prove in PCRA petition that he was deprived of right to file post-

sentence motions).

      Instantly, in Appellant's pro se PCRA petition and counseled amended

PCRA petition, Appellant expressly sought reinstatement of his post-sentence

motion rights nunc pro tunc. Specifically, Appellant argued trial counsel had

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been ineffective for failing to present medical evidence procured by the

Defender’s Association social worker in support of the argument he deserved

a fully concurrent sentence. In addition, he claimed counsel ignored his timely

requests to file both a petition for reconsideration of sentence and for

withdrawal of his guilty plea. See Petition Under the Post Conviction Relief Act

at 1-2. Although the Commonwealth opposed reinstating Appellant's post-

sentence motion rights nunc pro tunc, it indicated that it did not oppose an

evidentiary hearing to determine whether he was entitled to the reinstatement

of his direct appeal rights only. See Commonwealth’s Motion to Dismiss at 5-

6.

      On October 25, 2019, a hearing was held on Appellant’s PCRA petition

at which time Appellant testified that he had requested both personally and

through a family member that counsel file an appeal for an “[a]djustment of

sentence.”   Appellant said when he asked counsel to file such documents in

the courtroom immediately following the sentencing hearing, counsel replied

“OK.” N.T., 10/25/19, at 7-11. Trial counsel testified he could not remember

whether he had been asked to file a post-sentence motion or a direct appeal,

and conceded he could be mistaken about whether Appellant had asked him

to do so in the courtroom following sentencing. Id. at 17-20.

      At the conclusion of the hearing, the PCRA court noted that because

Appellant testified under oath he had requested that counsel file a motion for

reconsideration of sentence and a direct appeal, and counsel indicated he


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could not recall whether Appellant, in fact, did so, the court would reinstate

both Appellant’s right to file a post-sentence motion and a direct appeal.

However, after further reasoning that Appellant had not pled any grounds for

the reconsideration of his sentence in the Amended PCRA petition or shown

prejudice therein, the PCRA court restored only Appellant’s direct appeal

rights. Following our review of the record, we find this was in error.

      Consistent with Liston and Fransen, supra, Appellant pled in both his

pro se and counseled, Amended PCRA petition and indicated at the ensuing

hearing that he had been deprived of the right to file and litigate post-sentence

motions and a notice of appeal as a result of ineffective assistance of counsel.

See Liston, supra; Fransen, supra. Appellant's PCRA petition and testimony

made clear he wanted to challenge the validity of his pleas and the

discretionary aspects of his sentence, both of which require preservation in

post-sentence motions. See Commonwealth v. Lincoln, 72 A.3d 606

(Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding

defendant failed to preserve challenge to validity of guilty plea where he did

not object during plea colloquy or file post-sentence motion to withdraw plea);

Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied,

621 Pa. 682, 76 A.3d 538 (2013) (explaining objections to discretionary

aspects of sentence are waived if they are not raised at sentencing hearing or

in timely filed post-sentence motion). See also Pa.R.Crim.P. 720(A)(1),

(B)(1)(a)(i), (v) (stating post-sentence motion challenging validity of plea of


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guilty or nolo contendere and/or motion to modify sentence shall be filed no

later than 10 days after imposition of sentence).

      Consequently, the PCRA court’s reasoning to the contrary, restoration

of Appellant's direct appeal rights nunc pro tunc without restoration of his

post-sentence motion rights nunc pro tunc, in this case, was essentially an

empty gesture. In light of Appellant's stated intent to challenge the validity

of his plea and the discretionary aspects of sentencing, the PCRA court should

have restored Appellant's post-sentencing rights as well. See Liston, supra;

Fransen, supra. See also Commonwealth v. Rivera, 154 A.3d 370

(Pa.Super. 2017) (en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072

(2017) (affirming PCRA court's reinstatement of appellant's post-sentence

motion and direct appeal rights nunc pro tunc based on counsel's

ineffectiveness for failing to consult with appellant about whether he wanted

to file direct appeal; PCRA court properly restored Appellant's post-sentencing

rights nunc pro tunc because one issue appellant wanted to raise, regarding

withdrawal of his guilty plea, required preservation in trial court).

      Accordingly, we remand the matter to the trial court to reinstate

Appellant's post-sentence and direct appeal rights nunc pro tunc to provide

Appellant with an opportunity to litigate in post-sentence motions those issues

requiring preservation in the trial court. Given our disposition, we deny

counsel's petition to withdraw.




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      Case remanded with instructions. Counsel’s petition to withdraw denied.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/20




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