J-S23007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTONIO SAUNDERS                           :
                                               :
                       Appellant               :   No. 2122 EDA 2019

                 Appeal from the Order Entered July 15, 2019
    In the Court of Common Pleas of Northampton County Criminal Division
                      at No(s): CP-48-MD-0000850-2019,
                           CP-48-MD-0000850-2019

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 24, 2020

       Appellant Antonio Saunders appeals from the order disapproving of his

two private criminal complaints. On appeal, Appellant contends that the trial

court erred by concluding that the District Attorney did not abuse his discretion

in disapproving his private criminal complaints.          We affirm and grant

Appellant’s counsel’s petition to withdraw.

             Background for Appellant’s Related Criminal Case

       We begin with the facts underlying Appellant’s related criminal case

because they are necessary to understand the context for Appellant’s private

criminal complaints.1



____________________________________________


1Appellant’s related criminal case is currently on appeal before this Court.
See Commonwealth v. Saunders, 684 EDA 2020 (Pa. Super. 2020).
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        On January 28, 2018, Detective Michael M. Munch of the Colonial
        Regional Police Department executed an Affidavit of Probable
        Cause that stated as follows:

           On 1/25/19, [Appellant] entered the BB&T Bank at [Route
           248 in Lower Nazareth, Pennsylvania]. [Appellant] applied
           for a signature loan in the amount of $30,000 using the
           identifying information of Allen Baynes.        [Appellant]
           displayed a Pennsylvania ID card and a social security card
           in the name of Allen Baynes. [Appellant] also provided the
           bank with a federal income tax return form in the name of
           Allen Baynes. [Appellant] also signed the loan application
           form in the name of Allen Baynes.

           Officer Nigro,[2] this department, contacted Allen Baynes
           who resides in Alabama. Baynes stated he has not been to
           Pennsylvania and did not apply for a loan, nor did he allow
           anyone else to apply for a loan in his name.

           On 1/28/19, [Appellant] returned to the bank in order to
           receive his money. At that time, your affiant placed
           [Appellant] under arrest. [Appellant] was in possession of
           a Pennsylvania identification card, social security card, and
           two bank cards, all bearing the name Allen Baynes. A short
           time later, [Appellant] identified himself as . . . residing in
           New York. [Appellant] was in possession of a temporary NY
           driver’s license in [Appellant’s] name . . . . On the back of
           the driver’s license was a handwritten list of the identifying
           information of Allen Baynes, including date of birth, email
           address, and phone number.

Trial Ct. Op., 10/8/19, at 2 (citations omitted).

        Appellant was arrested and charged with, among other crimes, forgery,

identity theft, and attempted theft by deception. Id. at 8. He filed a motion

to suppress asserting “that the police had (1) failed to provide him with a



____________________________________________


2   The record did not state Officer Nigro’s first name.


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receipt and inventory of property taken from him at the time of his arrest; and

(2) failed to prove the existence of an unbroken chain of custody of the

property” in violation of Pennsylvania Rules of Criminal Procedure 208, 209,

and 210.    Id. at 6.    The trial court summarized the testimony at the

suppression hearing as follows:

      Detective Munch testified that an employee of the Lower Nazareth
      BB&T Bank (“BB&T Bank”) had provided Officer Nigro with copies
      of (1) the loan application that [Appellant] had signed on January
      25, 2019 in the name of Allen Baynes, a National Football League
      referee who lived in Alabama and had no connection to
      [Appellant]; (2) a Client Information Change Request Form that
      [Appellant] had signed on January 25, 2019 in the name of Allen
      Baynes, which listed certain demographic information of Allen
      Baynes; and (3) a 2017 federal income tax return in the name of
      Allen Baynes that [Appellant] had presented to the bank on
      January 25, 2019 to verify his income in support the loan
      application. The Commonwealth’s attorney, James Augustine,
      Esq., told the [c]ourt that he had provided these documents to
      [Appellant] in discovery.        [Appellant’s] attorney, Matthew
      Deschler, Esq., acknowledged that he had received the referenced
      documents in discovery and that he had given the documents to
      [Appellant].

      Attorney Augustine told the [c]ourt that, in addition, he had
      provided [Appellant] with (1) the Criminal Complaint; (2) police
      reports; (3) the name of the BB&T Bank employee [Jaime Adams]
      who had positively identified [Appellant] to the police; and (4) a
      still photograph taken by a BB&T Bank camera showing
      [Appellant] inside the BB&T Bank on January 25, 2019, the day
      on which Detective Munch said [Appellant] had applied for the
      loan, and wearing the same coat [Appellant] had been wearing at
      the time of his subsequent arrest on January 28, 2019. Attorney
      Augustine represented to the [c]ourt that the victim, Allen Baynes,
      would be available to testify at trial.

      Detective Munch testified that on January 28, 2019, when he went
      to BB&T Bank to arrest [Appellant], the bank loan officer who had
      received the loan application in the name of Allen Baynes on
      January 25, 2019 positively identified [Appellant] as the man who

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       had submitted the loan application. Detective Munch said that
       when he arrested [Appellant], [Appellant] had in his physical
       possession a Social Security card and a New York interim driver’s
       license, both in the name of [Appellant]. Detective Munch
       produced a photocopy of [Appellant’s] Social Security card.

       Attorney Augustine stated, and Detective Munch confirmed, that
       a BB&T Bank employee would testify that on January 25, 2019
       when [Appellant] applied for the loan, [Appellant] presented the
       bank with a Pennsylvania driver’s license bearing his own picture
       and the name of Allen Baynes. Detective Munch testified that
       when he arrested [Appellant], [Appellant] did not have the actual
       Pennsylvania driver’s license in his possession.          However,
       Detective Munch said he knew that the Pennsylvania driver’s
       license existed, because he had searched a database maintained
       by the Pennsylvania Department of Transportation (“PennDOT”)
       and had discovered a transaction record indicating that, a few
       days prior to [Appellant’s] arrest, [Appellant] had applied for and
       obtained a Pennsylvania driver’s license bearing his own picture
       and the name of Allen Baynes.

       Attorney Augustine acknowledged that the Commonwealth did not
       have in the courtroom that day the two bank cards bearing the
       name Allen Baynes that were alleged to have been in [Appellant’]s
       possession at the time of his arrest. However, Attorney Augustine
       noted that [Appellant’s] wallet had been taken from him at the
       time of his arrest, that the wallet was being stored at the Colonial
       Regional Police Department, and that the wallet might contain
       both the Pennsylvania driver’s license and the two bank cards.
       The [c]ourt advised Attorney Augustine that it would give him
       seven days to check for additional evidence, and if the
       Commonwealth located any additional items, the [c]ourt would
       hold an additional hearing to make a record of that production.

Id. at 3-5 (citations omitted).3


____________________________________________


3The trial court denied Appellant’s motion to suppress for two reasons. Trial
Ct. Op. at 7-8. The trial court first reasoned that Appellant’s motion was
untimely, and second, Rules 208 through 210 apply only to property seized
by a search warrant, whereas Appellant’s property was seized “pursuant to a



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           Background for Instant Private Criminal Complaints

       Appellant, acting pro se, filed his first private criminal complaint on

March 5, 2019, naming Detective Munch, Officer Nigro, and Mr. Adams as

defendants.     Private Crim. Compl., 3/5/19, at 3.   The complaint stated as

follows:

       On or about 1/28/2019, BB and T Banker called the complainant
       stating false misstatements after being coached by Defendants
       Officers Munch and Nigro; that a $30,000 loan had been approved
       in the name of Allen Baynes after Officer Nigro had contacted the
       real Allen Baynes, in Alabama, who had not been to PA, and did
       not apply for a loan, nor did he allow anyone else to apply for a
       loan in his name. Still Jaime Adams perpetrated a fraud by
       misrepresentation of the facts to solicite [sic] the complainant by
       inducing him and encouring [sic] him that the loan was approved,
       that she was leaving early today and wanted the complainant to
       come into BB and T Bank to sign the closing document so that the
       complainant can get the $30,000 loan with the criminal intent to
       entrap the complainant. After multiple calls from the Defendant
       Banker from BB and T Bank solicitating [Appellant] to come into
       the bank[, Appellant] arrived on 1/28/2019 at approx. 1440 hours
       to be arrested by the Defendant accomplices Officer Michael
       Munch and Officer Nigro. Allen Baynes never consented to any of
       these Defendant’s [sic] crimes . . . .

Id. at 2-3 (some alterations).

       On March 12, 2019, District Attorney John Morganelli disapproved

Appellant’s first private criminal complaint, briefly reasoning as follows:

“prosecutorial discretion not to prosecute.”     Id. at 2.   On May 2, 2019,


____________________________________________


warrantless arrest.” Id. After a jury trial, Appellant was convicted on June 5,
2019, of the above-mentioned crimes. Id. at 8.




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Appellant filed a pro se petition for review in the trial court, which requested

an unbiased “judge to look into this matter.”4 Pet. for Review, 5/2/19, at 1.

        On July 2, 2019, Appellant, pro se, filed his second private criminal

complaint again naming Detective Munch as a defendant.             Private Crim.

Compl., 7/2/19, at 1.5 The complaint asserted the following:

        . . . On 1/28/2019, Michael J. Munch, Affidavit of Probable Cause
        did in fact falsely accused [sic] that on 1/25/2019, [Appellant]
        entered the BB&T Bank and applied for a signature loan in the
        amount of $30,000.00, using the identifying information of Allen
        Baynes. That [Appellant] displayed a Pa. ID card and a social
        security card in the name of Allen Baynes. [Appellant] also signed
        the loan application. That on 1/28/2019, after Michael Munch[]
        placed [Appellant] under arrest, [Appellant] was in possession of
        a Pa. ID card, social security card and two bank cards, all bearing
        the name Allen Baynes. [Appellant] now has evidence that no
        such loan was ever applied for nor signed for while at BB&T Bank
        and sworn statements and the Commonwealth that no such Pa.
        ID nor social security card nor Bank card was found.

Id. at 2.      Appellant accused Detective Munch of violating the Savings

Association Code of 1967, and false statements in a deputy’s affidavit. See

id. (citing 7 P.S. § 6020, 16 P.S. § 1207-A, and 16 P.S. § 4207).

        On July 2, 2019, Attorney Morganelli disapproved Appellant’s second

private criminal complaint again reasoning “prosecutorial discretion not to

prosecute.” Id. On July 8, 2019, Appellant filed a pro se petition for review

in the trial court, which essentially reiterated the factual assertions in his

____________________________________________


4As quoted below, Pennsylvania Rule of Criminal Procedure 506 does not state
a time limitation for filing a petition for review. See Pa.R.Crim.P. 506.
5   The private criminal complaint was dated June 27, 2019.


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second private criminal complaint. See Mot. to Review the Decision of the

District Attorney Denying the Private Crim. Compl., 7/8/19, at 1-2. Appellant

also contended he was “erroneously convicted due to insufficient evidence”

and was “entitled [to have] the court to review and consolidate the perjury

charges with the other charges” under review. Id. at 2.

      On July 15, 2019, the trial court denied both of Appellant’s petitions for

review, but docketed the order at the wrong docket number, specifically CP-

48-CR-538-2019, which was Appellant’s criminal case.           Order, 7/15/19

(attached as Ex. A to Appellant’s Brief).     At the above-captioned docket

number, Appellant filed a timely pro se notice of appeal on July 18, 2019, and

a timely court-ordered Pa.R.A.P. 1925(b) statement.

      The docket states that on October 29, 2019, the trial court appointed

Robert Eyer, Esq., as appellate counsel for the above-captioned appeals.

Order, 10/29/19. Attorney Eyer filed an appellate brief with this Court and

subsequently filed an application to withdraw as counsel on May 8, 2020,

which we resolve below.

      Appellant raises the following issue on appeal: “Whether the trial court

erred in finding that the District Attorney did not abuse his discretion when

disapproving the private criminal complaints.” Appellant’s Brief at 4.

      In support, Appellant summarizes the applicable law, as well as the facts

and procedural posture. Id. at 11-19. He argues that the record established

that Detective Munch made false statements that justified the private criminal


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complaints.   Id. at 19.    Specifically, Appellant contends Detective Munch

falsely averred that Appellant had signed a written application for a loan in the

victim’s name and that when arrested, Appellant possessed identification

documents for another victim.     Id. at 19-20.    Appellant asserts Detective

Munch contradicted himself at Appellant’s criminal pretrial hearing and trial

and the Commonwealth failed to produce the written loan application and the

identification documents.    Id. at 20.     Further, Appellant argues that the

Commonwealth produced both of the aforementioned items at a pretrial

hearing without “any chain of custody whatsoever.” Id. Appellant concludes

that the trial court erred by holding that the District Attorney did not abuse

his discretion. Id.

      The Commonwealth counters that Appellant failed to establish that the

District Attorney abused his discretion when denying Appellant’s private

criminal complaints.    Commonwealth’s Brief at 6.         The Commonwealth

summarizes the applicable law, id. at 6-9, and frames Appellant’s argument

as “the trial court abused its discretion based on evidentiary reasons,

essentially arguing that his private criminal complaint set out a prima facie

case on which to bring charges.” Id. at 9-10. In the Commonwealth’s view,

“whether a private criminal complaint establishes a prima facie case” is one of

many factors that a District Attorney takes into consideration. Id. at 10. The

Commonwealth agrees with the trial court’s reasoning and summarizes it as

follows:


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       Appellant has failed to prove that then-District Attorney Morganelli
       abused his discretion in disapproving Appellant’s private criminal
       complaint because he has produced no evidence that the decision
       was made in bad faith or fraudulently, nor has he demonstrated
       that the decision was discriminatory, arbitrary, or pre-textual.
       Rather, the private criminal complaints were denied because they
       were made in retaliation for the filing of criminal charges against
       Appellant and presented issues that were more appropriately
       raised during pre-trial litigation or through cross-examination.

Id. at 11.

       The trial court quoted the District Attorney’s reasons for disapproving

Appellant’s private criminal complaints: “prosecutorial discretion not to

prosecute.”6 Trial Ct. Op. at 29. The trial court concluded, “[h]ere, the District

Attorney stated his reason for disapproval of [Appellant’s] Private Criminal

Complaints, and [Appellant] has failed to assert any basis for his claim that

the stated reason was inadequate.” Id. at 30.

       We state the following with respect to the standard of review:

       It is settled that following the receipt of a petition to review the
       Commonwealth’s decision to disapprove a private criminal
       complaint,     the     court   must    determine      whether    the
       Commonwealth’s rationale for disapproving the private criminal
       complaint is for purely legal reasons or if it is based solely or in
       part on policy considerations.        When the Commonwealth’s
       disapproval is based wholly on legal considerations, the court
       employs a de novo review. Where the decision includes or is
       entirely based on policy considerations, the trial court reviews the
       Commonwealth’s determination under an abuse of discretion
       standard.


____________________________________________


6 The trial court’s Rule 1925(b) opinion addressed other arguments that
Appellant did not raise on appeal. Therefore, we do not summarize those
portions of the trial court’s Rule 1925(b) opinion.


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Braman v. Corbett, 19 A.3d 1151, 1157 (Pa. Super. 2011) (citations

omitted). This Court similarly reviews a trial court’s decision addressing the

Commonwealth’s disapproval of a private criminal complaint on policy

considerations for an abuse of discretion. In re Wilson, 879 A.2d 199, 215

(Pa. Super. 2005) (en banc) (stating, “the appellate court will review the trial

court’s decision for an abuse of discretion, in keeping with settled principles

of appellate review of discretionary matters.”).    “This deferential standard

recognizes the limitations on judicial power to interfere with the district

attorney’s discretion in these kinds of decisions.” Id.

      Pennsylvania Rule of Criminal Procedure 506 states as follows:

      (A) When the affiant is not a law enforcement officer, the
      complaint shall be submitted to an attorney for the
      Commonwealth, who shall approve or disapprove it without
      unreasonable delay.

      (B) If the attorney for the Commonwealth:

         (1) approves the complaint, the attorney shall indicate this
         decision on the complaint form and transmit it to the issuing
         authority;

         (2) disapproves the complaint, the attorney shall state the
         reasons on the complaint form and return it to the affiant.
         Thereafter, the affiant may petition the court of common pleas
         for review of the decision.

Pa.R.Crim.P. 506.

      The private criminal complainant has the burden to prove the
      district attorney abused his discretion, and that burden is a heavy
      one. In the Rule 506 petition for review, the private criminal
      complainant must demonstrate the district attorney’s decision
      amounted to bad faith, fraud or unconstitutionality.            The
      complainant must do more than merely assert the district

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      attorney’s decision is flawed in these regards. The complainant
      must show the facts of the case lead only to the conclusion that
      the district attorney’s decision was patently discriminatory,
      arbitrary or pretextual, and therefore not in the public interest. In
      the absence of such evidence, the trial court cannot presume to
      supervise the district attorney’s exercise of prosecutorial
      discretion, and should leave the district attorney’s decision
      undisturbed.

In re Wilson, 879 A.2d at 215.

      In Wilson, the complainant’s petition for review asserted that “his

complaint, along with his medical records and affidavit, should be approved

because he set forth a prima facie case . . . .” Id. at 216. The complainant

concluded that because he presented a prima facie case, the District

Attorney’s disapproval was “suspect.” Id. at 217. Further, the complainant

questioned the “District Attorney’s decision, as a matter of policy, to refuse to

commit the resources of his office to a case where the likelihood of a conviction

was minimal.”    Id. at 210.   The trial court disagreed, holding the District

Attorney did not abuse its discretion because the District Attorney presented

“two valid policy reasons for disapproving [the complainant’s] private

complaint,” and because there was “no evidence of bad faith, fraud or

unconstitutionality.” Id. at 218. The Wilson Court similarly held that the

trial court did “not demonstrate an abuse of discretion,” reasoning that the

complainant’s “allegation of bad faith in his petition [for review] is based only

on suspicion, and suggests partiality or favoritism without factual support.”

Id.




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      Instantly, Appellant’s petitions for review requested an unbiased judge

to review his first private criminal complaint and argues that he is entitled to

have the trial court review his second private criminal complaint. See Pet. for

Review, 5/2/19, at 1; Mot. to Review the Decision of the District Attorney

Denying the Private Crim. Compl., 7/8/19, at 1-2. Appellant’s petitions for

review, similar to the complainant’s petition for review in Wilson, do not

explain how the District Attorney’s decision “was patently discriminatory,

arbitrary or pretextual.”   See Wilson, 879 A.2d at 215.          As in Wilson,

Appellant’s petitions for review simply do not establish that the District

Attorney acted in bad faith, fraudulently, or unconstitutionally.        See id.

Appellant’s appellate argument similarly rehashes his contention that he

established a prima facie case, but does not explain how the District Attorney’s

decision was discriminatory, arbitrary, or pretextual.       See id.     Because

Appellant failed to establish the trial court abused its discretion, we affirm the

order denying Appellant’s petitions for review. See id.

      Turning to Attorney Eyer’s petition to withdraw as appointed counsel,

we state the following as background.          Pennsylvania Rule of Criminal

Procedure 122 provides for the appointment of counsel as follows:

      (A) Counsel shall be appointed:

         (1) in all summary cases, for all defendants who are without
         financial resources or who are otherwise unable to employ
         counsel when there is a likelihood that imprisonment will be
         imposed;




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        (2) in all court cases, prior to the preliminary hearing to all
        defendants who are without financial resources or who are
        otherwise unable to employ counsel;

        (3) in all cases, by the court, on its own motion, when the
        interests of justice require it.

Pa.R.Crim.P. 122; see also 16 P.S. § 9960.7 (stating, “For cause, the court

of common pleas may, on its own motion or upon the application of the public

defender, the defendant, or person charged with being a juvenile delinquent,

appoint an attorney other than the public defender to represent the person

charged at any stage of the proceedings.” (emphasis added)).

     Generally, the

     [S]ixth [A]mendment of the United States Constitution
     guarantees the accused in all criminal prosecutions the assistance
     of counsel for his defense. The triggering event for [S]ixth
     [A]mendment rights to attach is the commencement of adversary
     judicial proceedings against the defendant.               The [S]ixth
     [A]mendment does not afford such assistance of counsel to a
     plaintiff in a civil action, such as the [plaintiff’s action at issue],
     where no loss of liberty is involved.

     While it is true that in some instances counsel will be appointed
     for a plaintiff in a civil action, generally it is a situation involving
     broad policy considerations implicating a state interest of a civil
     rights nature such as a fair housing violation, sexual or other job
     discrimination or where liberty interests are implicated. The state
     has reasonably adjusted to these necessities by providing legal
     agencies to fulfill due process requirements, which will assist
     indigent persons who are wronged, or the courts have called upon
     pro bono services of the bar associations absent public resources.
     Each class of case and in some respects each case is scrutinized
     to determine if the right to counsel is required under the due
     process provisions of federal and state constitutions.               The
     requirements are more clearly stated and more generally
     applicable when a party is a defendant in certain civil actions,
     rather than a plaintiff. It is also clear that classification of a case
     as civil as opposed to criminal will not be determinative, but

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       rather, whether the action will be perceived as ultimately
       depriving a person of a higher liberty interests.

May v. Sharon, 546 A.2d 1256, 1258 (Pa. Super. 1988) (footnote, citations,

and quotation marks omitted); see generally Pa.R.Crim.P. 122; 16 P.S. §

9960.7. There is a right to counsel for persons subject to, among other things,

(1) incarceration or probation for summary offenses, (2) commitment under

the Mental Health Procedures Act, (3) contempt, or (4) paternity actions.7 We

have not identified any legal authority addressing whether a party who filed a

private criminal complaint, i.e., the accuser and not the accused, is

constitutionally entitled to appointed counsel. Indeed, because such a party

is the accuser, that party would not be subject to imprisonment or other

deprivations of higher liberty interests based on the claims in a private criminal

complaint.8 See May, 546 A.2d at 1258.

       Here, Appellant filed two private criminal complaints. Appellant is the

accuser and not an indigent defendant. As the accuser, he is not subject to

____________________________________________


7See Pa.R.Crim.P. 122; 50 P.S. § 7303; Commonwealth v. Diaz, 191 A.3d
850, 862-63 (Pa. Super. 2018); Rodriguez v. Rodriguez, 600 A.2d 589,
590-91 (Pa. Super. 1991).
8 It follows that the requirements of Anders/Santiago do not apply in
considering whether to grant appointed counsel’s petition to withdraw from
representing the accuser. See Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In Santiago, our
Supreme Court summarized the constitutional underpinnings for Anders,
including “that under the Sixth Amendment, the indigent have the same right
to effective representation by an active advocate as a defendant who can
afford to retain counsel . . . .” Santiago, 978 A.2d at 355 (emphasis added)
(summarizing McCoy v. Wisconsin, 486 U.S. 429 (1988)).


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the deprivation of “higher liberty interests” as a consequence of the claims in

his complaints. See May, 546 A.2d at 1258. Because Appellant is not subject

to the deprivation of higher liberty interests as discussed in May, he is not

constitutionally entitled to appointed counsel. See id.; see also 16 P.S. §

9960.7 (noting trial court may appoint counsel to represent the “person

charged,” i.e., not the accuser).

      Attorney Eyer’s petition to withdraw his representation of Appellant,

which he filed after the parties’ appellate briefs were filed, contended that

Appellant alleged Attorney Eyer is incompetent, has a conflict of interest, and

violated the Rules of Professional Conduct. Appl. to Withdraw as Counsel,

5/8/20, at 4. Attorney Eyer averred that there is a breakdown in the attorney-

client relationship and requests permission to withdraw or a remand to the

trial court for any hearing this Court deems necessary. Id. at 4-5. Because

we have resolved Appellant’s appeal on its merits, “we see no reason not to

grant the motion for permission to withdraw.”              Commonwealth v.

Goldsmith, 619 A.2d 311, 316 (Pa. Super. 1993) (granting the defendant’s

counsel’s petition to withdraw because of a breakdown in the attorney-client

relationship and because the Court resolved the “issues on appeal on their

merits”). For these reasons, we find the trial court did not abuse its discretion,

and we affirm the order below. See Braman, 19 A.3d at 1157; In re Wilson,

879 A.2d at 215.

      Order affirmed. Counsel’s petition to withdraw granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/20




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