J-S61010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRYAN DARNELL HENDERSON,                   :
                                               :
                       Appellant               :   No. 1926 EDA 2019

          Appeal from the Judgment of Sentence Entered July 24, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0006060-2017

BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                            FILED NOVEMBER 21, 2019

        Bryan Darnell Henderson appeals from the aggregate judgment of

sentence of eighteen to forty-eight months of imprisonment imposed on his

convictions for possession with intent to deliver (“PWID”) and criminal

conspiracy.     Appellant’s counsel, Douglas L. Smith, Esquire, has filed an

application to withdraw and a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).      We deny counsel’s application to withdraw and remand with

instructions.

        Our review of the certified record reveals the following. Appellant was

charged with the above crimes and others as a result of the City of Chester

Police Department’s surveillance and search of the first floor apartment at

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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1139 Madison Street, Chester, Delaware County, Pennsylvania.                The

investigation revealed that Appellant resided in the one-bedroom apartment,

but Clinton Cooper also had regular and frequent unfettered access to the

apartment. When Appellant and/or Mr. Cooper was present at the apartment,

various other people would knock at the door, be admitted, and leave within

a few minutes. The search conducted pursuant to a warrant resulted in the

seizure of, inter alia, cocaine, a digital scale with cocaine residue, a cookpot

with cocaine residue, a folded playing card with cocaine residue, baggies for

packaging cocaine for sale, and cash.

      At a jury trial, the Commonwealth offered the testimony of three officers

who participated in the investigation, as well as an expert who opined that the

cocaine was possessed with intent to sell it, rather than for personal use, and

that Appellant and Mr. Cooper were working together in the drug-dealing

operation. Appellant testified to deny any involvement in wrongdoing, and

offered his fiancé and mother to corroborate his version of events.

      On May 17, 2018, the jury convicted Appellant of PWID and conspiracy.

Appellant indicated his desire to appeal, but was informed that he would have

to wait until his sentence was imposed. Appellant was sentenced as indicated

above on July 24, 2018, but no post-sentence motion or appeal was filed.

Appellant filed a timely pro se PCRA petition, which the PCRA court granted

with an order appointing Attorney Smith to represent Appellant.        Attorney

Smith promptly filed a notice of appeal.


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      On July 9, 2019, the trial court ordered Appellant to file a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925, and to present

within five days an order requesting transcripts for all hearings held in the

case. Attorney Smith filed a statement of intent to file an Anders brief, but

no order for transcripts appears in the certified record.     While the record

contains the notes of testimony from the preliminary hearing, jury selection,

and trial, there is no transcript of Appellant’s sentencing hearing.

      In this Court, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel, and Appellant filed a pro se response

challenging counsel’s analysis. Accordingly, the following principles guide our

review of this matter.

             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 . . . .

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

             If counsel does not fulfill the aforesaid 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). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our own
      review of the appeal to determine if it is wholly frivolous.




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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted).

      Our Supreme Court has clarified portions of the Anders procedure as

follows:

      in 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, supra at 361.

      Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above. As required by Santiago, counsel set

forth the case history, referred to an issue that arguably supports the appeal,

stated his conclusion that the appeal is frivolous, and cited case law which

supports that conclusion. See Anders brief at 3-15.

      However, as noted above, counsel did not ensure that the certified

record was complete, as the notes of testimony from the July 24, 2018

sentencing hearing are not included.      “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



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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 Douglas L. Smith, Esquire, to withdraw as counsel is

denied. Case remanded with instructions. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/19




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