J-S33035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    GARY PALMER                                :
                                               :
                         Appellant             :   No. 1108 EDA 2019

       Appeal from the Judgment of Sentence Entered November 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0204941-2006


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

MEMORANDUM BY STEVENS, P.J.E.:                           FILED AUGUST 07, 2020

        Appellant, Gary Palmer, appeals from the November 19, 2018 judgment

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

the trial court resentenced appellant to an aggregate term of incarceration of

11 to 22 years, followed by 6 years’ probation, as a result of his conviction in

a jury trial of multiple counts of robbery, theft, assault, drug offenses and

firearms violations. Appellant’s attorney, J. Matthew Wolfe, Esq., has filed a

petition to withdraw, alleging that the appeal is frivolous, and an Anders brief

pursuant     to        Anders   v.   California,   386   U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we deny counsel's petition to withdraw and remand with instructions.

        The trial court set forth the following procedural history:

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     On May 29, 2007, at the conclusion of his jury trial before the
     Honorable Earl W. Trent, Defendant [hereinafter “Appellant”] was
     found guilty on numerous related charges of Robbery, Theft,
     Assault, Drug [offenses,] and Firearms violations. On August 2,
     2007, Judge Trent sentenced Appellant to an aggregate period of
     confinement of 11 to 22 years followed by 6 years’ probation.
     Appellant did not file post sentence motions.

     On August 31, 2007, Appellant timely filed a direct appeal to the
     Superior Court. . . . By order dated May 14, 2008, Appellant’s
     appeal was dismissed for “failure to file brief.” [Appellant filed a
     pro se petition pursuant to the Post Conviction Relief Act seeking
     reinstatement of his direct appeal rights. On November 30, 2010,
     [the PCRA court] reinstated his direct appeal rights. On May 12,
     2010, Appellant timely filed a direct appeal to the Superior Court[,
     which affirmed judgment of sentence after finding Appellant had
     waived his claims. Appellant filed a petition for allowance of
     appeal with the Supreme Court of Pennsylvania, but his petition
     was denied on May 2, 2013].

     On December 20, 2013, Appellant timely filed a pro se PCRA
     petition. On July 1, 2014, J. Matthew Wolfe, Esq. was appointed
     counsel to represent Appellant for the purposes of his PCRA
     petition. On February 3, 2016, the [PCRA court], after a hearing,
     entered an Order dismissing Appellant’s PCRA petition as being
     without merit.

     On March 30, 2016, Appellant timely filed a direct appeal to the
     Superior Court of Pennsylvania, . . . which, on finding Appellant’s
     mandatory minimum sentence illegal pursuant to Alleyne v.
     United States, 133 S.Ct. 2151, 2163 (2013), affirmed
     Appellant’s judgment of sentence in part, and remanded the
     matter back for resentencing.

     On November 19, 2018, the [trial court], after a hearing,
     [resentenced Appellant to a discretionary sentence of identical
     duration to the previous sentence, i.e., 11 to 22 years, followed
     by 6 years’ probation]. On November 22, 2018, Appellant filed a
     post sentence motion seeking reconsideration of his sentence,
     which the [trial court] denied, after a hearing, on March 19, 2019.

     On April 17, 2019, Appellant timely filed the instant appeal to the
     Superior Court of Pennsylvania. On May 14, 2019, [the trial court
     issued an order upon Appellant to file a Concise Statement

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      pursuant to Pa.R.A.P. 1925(b)]. On May 30, 2016, Appellant filed
      his “Statement Pursuant to 1925(c)(4),” in which he stated:

          “No errors are presented because after a review of the
          record, counsel has concluded that there are no non-
          frivolous issues to raise on appeal and at the present
          time intends to file a brief pursuant to the procedures
          set forth in Anders v. California, 386 U.S. 738 (1967)
          and Commonwealth v. McClendon, 434 A.2d 11185
          (1981) and would file a motion to withdraw from the
          case at the time of the filing of such a brief.”

Trial Court Opinion, 8/22/19, at 1-3. Counsel thereafter filed an Anders brief

and motion to withdraw with this Court, and the trial court filed its Pa.R.A.P.

1925(a) opinion.

      Preliminarily, we must address the petition to withdraw alleging that the

appeal is frivolous and the Anders brief that Attorney Wolfe filed.

      A request by appointed counsel to withdraw pursuant to Anders
      and Santiago gives rise to certain requirements and obligations,
      for both appointed counsel and this Court. Commonwealth v.
      Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

         These requirements and the significant protection they
         provide to an Anders appellant arise because a criminal
         defendant has a constitutional right to a direct appeal and
         to counsel on that appeal. Commonwealth v. Woods,
         939 A.2d 896, 898 (Pa.Super. 2007). This Court has
         summarized these requirements as follows:

              Direct appeal counsel seeking to withdraw under
              Anders must file a petition averring that, after a
              conscientious examination of the record, counsel
              finds the appeal to be wholly frivolous. Counsel
              must also file an Anders brief setting forth issues
              that might arguably support the appeal along with
              any other issues necessary for the effective
              appellate presentation thereof.




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              Anders counsel must also provide a copy of the
              Anders brief and petition to the appellant, advising
              the appellant of the right to retain new counsel,
              proceed pro se or raise additional points worthy of
              the Court's attention.

         Woods, 939 A.2d at 898 (citations omitted).

         There are also requirements as to the precise content of
         an Anders brief:

              The Anders brief that accompanies court-
              appointed counsel's petition 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.

         Santiago, 978 A.2d at 361.

      Id. at 1248. If this Court determines that appointed counsel has
      met these obligations, it is then our responsibility “to make a full
      examination of the proceedings and make an independent
      judgment to decide whether the appeal is in fact wholly frivolous.”
      Id. at 1248. In so doing, we review not only the issues identified
      by appointed counsel in the Anders brief, but examine all of the
      proceedings to “make certain that appointed counsel has not
      overlooked the existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

      Specifically, Attorney Wolfe furnished a copy of the Anders brief to

Appellant and advised him contemporaneously by letter dated November 26,

2019 of his right to retain new counsel, proceed pro se on the appeal, or raise

any additional points that he deems worthy of this Court's attention. Attorney


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Wolfe attached a copy of that letter to the Application to Withdraw as Counsel,

which he filed with this Court. In the application to withdraw, Attorney Wolfe

averred that, after a conscientious examination of the record and an interview

with Appellant, he concluded the appeal does not present a non-frivolous legal

question. Additionally, Attorney Wolfe furnished appellant with a copy of the

application to withdraw. Appellant has not filed a response to the Anders

brief or the counsel’s application to withdraw.

      With   respect   to   briefing   requirements,   “[n]either   Anders   nor

McClendon requires that counsel's brief provide an argument of any sort, let

alone the type of argument that counsel develops in a merits brief. To repeat,

what the brief must provide under Anders are references to anything in the

record that might arguably support the appeal.” Santiago, 978 A.2d at 359,

360. Once counsel has met his 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.

      Here Attorney Wolfe indicates in the Anders brief that he has made a

conscientious examination of the record and then sets forth a procedural

history of the case. Anders brief at 14. He also raises the issue presented

in Appellant’s post-sentence motion, which challenged that Appellant’s new

sentence was manifestly excessive. Id. at 15. Notably absent, however, is

any reference to the November 19, 2018 sentencing hearing, let alone a

discussion of the sentence imposed or the court’s stated reasons for imposing

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such sentence.    Instead, the extent of counsel’s discussion in this regard

appears in the brief’s argument section which states only, “Counsel does not

believe that the argument that the sentence was excessive has merit. The

lower court's explanation that the original sentence fell within the lower end

of the sentencing guidelines and most were to run concurrently cannot be

considered an abuse of discretion.” Anders brief, at 15.

      However, counsel did not ensure that the certified record was complete,

as the notes of testimony from the November 19, 2018 sentencing hearing

are not included despite his filing of an order for all notes of testimony

transcribed in this case.   Moerover, there is simply no indication from the

Anders brief that counsel reviewed the transcript in preparing a brief for the

present appeal. “Without these notes of testimony, counsel could not have

fulfilled his duty to review the entire record for any non-frivolous issues.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015)

(unnecessary capitalization omitted).    “We therefore cannot conclude that

counsel has fulfilled his obligations pursuant to Anders.” Flowers, supra at

1551 (unnecessary capitalization omitted).       Accordingly, we must deny

counsel's petition to withdraw and remand with instructions for counsel to

obtain the missing notes of testimony and to file an advocate's brief, or a new

Anders brief and another petition seeking to withdraw, following review of a

complete record. See Flowers, supra at 1551.

      Application of J. Matthew Wolfe, Esquire, to withdraw as counsel is

denied. Case remanded with instructions. Panel jurisdiction retained.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/20




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