J. S66043/18 & J. S66044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
DARREN JOSEPH ARNOLD,                    :          No. 1028 EDA 2018
                                         :
                         Appellant       :


            Appeal from the Judgment of Sentence, February 9, 2018,
               in the Court of Common Pleas of Delaware County
               Criminal Division at Nos. CP-23-CR-0004313-2010,
                            CP-23-CR-0008017-2016



COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
DARREN JOSEPH ARNOLD,                    :          No. 1030 EDA 2018
                                         :
                         Appellant       :


            Appeal from the Judgment of Sentence, February 9, 2018,
               in the Court of Common Pleas of Delaware County
               Criminal Division at Nos. CP-23-CR-0004313-2010,
                            CP-23-CR-0008017-2016


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 13, 2018

      Darren Joseph Arnold appeals from the February 9, 2018 judgments of

sentence entered by the Court of Common Pleas of Delaware County

following     his   conviction   of   tampering    with   a   public    record,
J. S66043/18 & J. S66044/18

forgery-unauthorized act in writing, forgery-utters forged writing, and

impersonating a public servant,1 and from the trial court’s order revoking his

probation stemming from appellant’s conviction of theft by unlawful taking,

receiving stolen property, and conspiracy to commit theft,2 to which he was

originally sentenced on December 6, 2010.                   Shawn K. Page, Esq.

(“Attorney Page”),    filed     applications   to   withdraw    his   appearance     on

August 16, 2018, alleging that the appeals are wholly frivolous, accompanied

by Anders3 briefs. After careful review, we remand.

        The relevant procedural history is as follows:         On January 25, 2017,

the Commonwealth charged appellant with tampering with a public record,

forgery-unauthorized      act     in   writing,     forgery-utters    forged    writing,

impersonating a public servant, and harassment.                  The jury convicted

appellant of tampering with a public record, both forgery charges, and

impersonating a public servant on September 21, 2017.                  The trial court

acquitted appellant of harassment.4

        On February 9, 2018, the trial court sentenced appellant to an

aggregate term of 16-32 months’ imprisonment, to be followed by


1  18 Pa.C.S.A.      §§   4911(a)(2),      4101(a)(2),     4101(a)(3),    and    4912,
respectively.

2   18 Pa.C.S.A. §§ 3921(a), 3925(a), and 903 (a)(1), respectively.

3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).

4   18 Pa.C.S.A. § 2709(a)(3).


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52 months’ probation for the tampering with a public record, impersonating

a public servant, and forgery convictions. Immediately after the sentencing

hearing, the trial court held a Gagnon II5 hearing to address appellant’s

violation of the probation stemming from the December 6, 2010 judgment of

sentence. The trial court revoked appellant’s probation and sentenced him

to 6-24 months’ imprisonment to be served consecutively to the first

sentence imposed. Appellant did not file any post-sentence motions.

        On March 12, 2018, appellant filed a pro se notice of appeal to this

court. Two days later, Attorney Page filed a notice of appeal. The trial court

ordered appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) on March 16, 2018.          On April 23,

2018, the trial court vacated its March 16, 2018 order and again ordered

appellant to file a concise statement of errors complained of on appeal.

Appellant failed to do so, and the trial court filed an opinion pursuant to

Pa.R.A.P 1925(a) on June 14, 2018.

        As noted above, Attorney Page filed applications to withdraw his

appearance, accompanied by Anders briefs on August 16, 2018.              This,

however, does not rectify appellant’s failure to comply with the trial court’s

Rule 1925(b) order. Indeed, as noted by a previous panel of this court:

             Generally, the failure to      file a Rule 1925(b)
             Statement would constitute     a waiver of all issues.
             Commonwealth v. Lord,         [] 719 A.2d 306, 309
             ([Pa.] 1998). According to    the bright-line rule set

5   See Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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          forth by Lord; “. . . in order to preserve their claims
          for appellate review, [a]ppellants must comply
          whenever the trial court orders them to file a
          Statement of Matters Complained of on Appeal
          pursuant to Pa.R.A.P. 1925. Any issues not raised in
          a Pa.R.A.P. 1925(b) statement will be waived.”
          Commonwealth v. Castillo, [] 888 A.2d 775, 780
          [(Pa. 2005)], citing Lord, 719 A.2d at 309.

          ....

          However, it is also notable in this case that
          Appellant’s counsel submitted to this Court a brief
          and a petition to withdraw pursuant to Anders v.
          California [] and Commonwealth v. McClendon,
          [] 434 A.2d 1185 ([Pa.] 1981).

          ....

          Rule 1925 provides two options which were available
          to Appellant’s counsel at the time the trial court
          directed him to file a concise statement. Appellant’s
          counsel could have complied with the order and filed
          a concise statement under Pa.R.A.P. 1925(b), or
          alternatively, could have filed a statement of intent
          to file an Anders/McClendon brief.               See
          Commonwealth v. Goodwin, 928 A.2d 287, 293
          (Pa.Super. 2007) (en banc) (finding that under the
          newly promulgated Rule 1925, the concise statement
          filed by appellant’s attorney indicating that ‘there
          were no non-frivolous matters that can be raised on
          appeal’, would be accepted by the Court as a
          statement of intent to file an Anders/McClendon
          brief). These options are detailed in the Note to
          Pa.R.A.P. 1925(c)(4):

                 Even lawyers seeking to withdraw
                 pursuant to the procedures set forth in
                 Anders      v.     California   []   and
                 Commonwealth v. McClendon, 495
                 Pa. 467, 434 A.2d 1185 (1981) are
                 obligated to comply with all rules,
                 including the filing of a Statement. See
                 Commonwealth v. Myers, 897 A.2d


                                   -4-
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                  493,     494-496     (Pa.Super.     2006);
                  Commonwealth v. Ladamus, 896 A.2d
                  592, 594 (Pa.Super. 2006). However,
                  because a lawyer will not file an
                  Anders/McClendon          brief    without
                  concluding      that   there     are    no
                  non-frivolous issues to raise on appeal,
                  this amendment allows a lawyer to file,
                  in lieu of a Statement, a representation
                  that no errors have been raised because
                  the lawyer is (or intends to be) seeking
                  to withdraw under Anders/McClendon.
                  At that point, the appellate court will
                  reverse or remand for a supplemental
                  Statement and/or opinion if it finds
                  potentially non-frivolous issues during its
                  constitutionally required review of the
                  record.

           Pa.R.A.P 1925 at Note (2007) (emphasis added).

           ....

           In sum, this Court cannot conduct a review under
           Anders because we do not have a complete record.
           “This Court cannot meaningfully review claims raised
           on appeal unless we are provided with a full and
           complete certified record.” [Commonwealth v.]
           Preston, 904 A.2d [1,] 7 [(Pa.Super.2006)], citing
           Commonwealth v. O’Black, 897 A.2d 1234, 1240
           ([Pa.Super.] 2006). Furthermore, absent the proper
           filing of any statement of record by counsel, this
           Court cannot properly consider counsel’s request to
           withdraw.

Commonwealth v. McBride, 957 A.2d 752, 755-758 (Pa.Super. 2008).

     Accordingly, we deny Attorney Page’s applications to withdraw and

remand for the filing of a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) or a statement of intent to file an

Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Either statement must be


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filed with the trial court within 30 days of the date of this memorandum.

Should counsel elect to file a concise statement of errors complained of on

appeal, the trial court shall file a supplemental Rule 1925(a) opinion within

30 days of service of appellant’s concise statement. Should counsel elect to

file a statement of intent to file an Anders brief, a supplemental opinion

from the trial court shall not be required, and the supplemental trial court

record shall be certified and transmitted back to this court.

      Applications   to   withdraw   denied.    Case   remanded   for   further

proceedings consistent with this memorandum. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/13/18




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