J-S39022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MARK A. GNACINSKI, JR.

                            Appellant                   No. 1768 WDA 2013


          Appeal from the Judgment of Sentence of October 4, 2013
                In the Court of Common Pleas of Erie County
             Criminal Division at No.: CP-25-CR-0001036-2012


BEFORE: BENDER, P.J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                                  FILED JULY 31, 2014

       Mark Gnacinski, Jr., appeals his October 4, 2013 judgment of



regarding his entrapment defense, and he contests discretionary aspects of



Esq., has filed a petition to withdraw as counsel, together with an
                                1
    Anders/Santiago                 We find that Mr. Vandeveld has satisfied the

Anders/Santiago requirements and that Gnacinski has no meritorious




____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
     See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).
J-S39022-14



issues to pursue on appeal. Consequently, we grant Mr.

to withdraw2

       The procedural history,3 as set forth by Anders/Santiago counsel

and as supported by the record, is as follows:

       On July 26, 2013, a jury found [Gnacinski] guilty of receiving
       stolen property, [18 Pa.C.S. § 3925]; the jury found [Gnacinski]
       not guilty of the second count alleged in the information, and the
       trial court subsequently declared a mistrial on the remaining four
       counts.      The Commonwealth later declined to prosecute
       [Gnacinski] on the remaining counts, and on October 4, 2013,
       [the trial court] sentenced [Gnacinski] to a term of nine to 20
       months of incarceration, to be followed by 24 months of
       probation.[4]

       On October 10, 2013, [Gnacinski] filed a [counseled] motion to
       modify his sentence . . .; the principal claim he advanced in his
       motion was that his trial defense counsel was ineffective. The

____________________________________________


2
      On July 14, 2014, during the pendency of this appeal, Emily Mosco
Merski, Esq., an attorney in private practice, filed a petition to withdraw as
counsel, citing the fact that Gnacinski presently is represented by the Erie
County Public Defender, and contending that, consequently, Gnacinski will in
no way be disadvantaged by her withdrawal. Mr. Vandeveld is among three
assistant public defenders who have been involved in this matter. Wayne
Johnson, Esq., filed the notice of appeal in this case.            Later, after
Mr.                                                        half, Nicole Sloane,
Esq., another assistant public defender, entered her appearance. Ms. Merski
certainly is correct that Gnacinski is represented by the office of the Erie
County Public Defender. Consequently, we can discern no basis to compel
Ms. Merski to continue as, in effect, extra counsel for Gnacinski.
Consequently, we grant Ms.
Gnacinski.
3
       The underlying factual background is immaterial to our disposition.
4
       The sentencing order authorized work release.




                                           -2-
J-S39022-14


       trial court denied the motion without comment the following day.
       On November 1, 2013, [Gnacinski] filed the instant appeal.

       On November 20, 2013, trial defense counsel for [Gnacinski],
       attorney Wayne Johnson, Jr., filed a statement of intent to file
       an [Anders/Santiago] brief,[5
       primary claim of error involved allegations of ineffectiveness in
                                                  ...    Mr. Johnson also
       averred that he had undertaken the requisite review of
                                           record, and found there to be
       no non-frivolous issues.       Likewise, the undersigned [i.e.,
       Mr. Vandeveld] has undertaken an exhaustive review of the
       documents that exist in this case, the potential issues that might
       have been presented for appeal, considered conscientiously and
       comprehensively the facts and the law applicable to [this case],
       and has concluded in the best exercise of his professional
       judgment[] that the issues raised by [Gnacinski] sound more
       properly in collateral claims of ineffective assistance of counsel,
       and has therefore elected to follow the [Anders/Santiago]
       procedure as well.

Brief for Gnacinski at 8-9.

       Consistently with the above account, Mr. Vandeveld presents and

discusses the following issues for our consideration:

       1.    Whether the trial court erred in refusing to instruct the
       jury that the affirmative defense of entrapment applied to the
       sole count for which the jury convicted [Gnacinski], Receiving
       Stolen Property . . . ?

       2.
       request to allow [him] to remain in Erie County Prison or release
       him for some indefinite period for medical treatment?


____________________________________________


5
       Because trial counsel filed a statement signaling his intent to proceed
under Anders and Santiago in lieu of a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), the trial court did
not file a Rule 1925(a) opinion.



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J-S39022-14



Brief for Gnacinski at 7.

      As noted, Mr. Vandeveld has filed an Anders/Santiago brief and a

corresponding petition to withdraw as counsel, asserting that Gnacinski has

no non-frivolous issues to pursue on direct appeal.     This Court first must



any   potential   issues    that   Gnacinski   might   present    on    appeal.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Prior to withdrawing as counsel under Anders, counsel must file a

brief that meets the requirements established by our Supreme Court in

Santiago.      Pursuant thereto, the     brief must    provide   the   following

information:

      (1)   a summary of the procedural history and facts, with
            citations to the record;

      (2)   reference to anything in the record that counsel believes
            arguably supports the appeal;

      (3)

      (4)              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.

      Counsel also must provide a copy of the Anders brief to his client.

Attending the brief must be a letter that advises the client of his rights to

                                                            pro se on appeal;

or (3) raise any points that the appellant


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J-S39022-14



attention in addition to the points raised by counsel in the Anders

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). Finally,

to facilitat

attach to his petition to withdraw the letter he transmitted to his client. See

Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

      Our      review   of    Mr.                                 ithdraw   and    the

accompanying       brief     demonstrates     that   he    has   complied   with   the

Anders/Santiago requirements. Counsel has provided a procedural history

detailing the events relevant to this appeal.             Brief for Gnacinski at 8-9.

Mr. Vandeveld has set forth two issues for consideration, and evaluated

                                                          Id. at 10-12. Furthermore,

Mr. Vandeveld has addressed the requirements of Pa.R.A.P. 2119(f) relative

to the sentencing issue, thus recognizing that Gnacinski must establish a

substantial question regarding the challenged discretionary aspect of his

sentence in order to obtain review of the merits of that issue. Id. at 9-10.

Finally, after analyzing each issue on its own terms, Mr. Vandeveld has

provided a sepa

details his reasons for determining that both of the above-stated issues are

frivolous.     Id. at 13-14.        Mr. Vandeveld also has sent Gnacinski a letter

informing him that he has identified no meritorious issues to pursue on



representation, and that Gnacinski may find new counsel or proceed pro se.

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J-S39022-14



Mr. Vandeveld has attached the letter to his petition to withdraw, as required

by Millisock, supra.         See Petition for Leave to Withdraw as Counsel,

3/28/2014, attachment (letter dated 3/27/2014). Accordingly, counsel has

complied with Anders/Santiago

        In response to Mr.                                                  ed a

pro se                                         Pro Se

wherein he presses the entrapment issue that Mr. Vandeveld deemed to be

frivolous. He presents the issue in two questions:

        1.    Whether the trial court erred in letting the decision go to
        the jury instead of ruling Entrapment as a matter of law?

        2.    Whether the trial court erred in refusing to instruct the
        jury that the affirmative defense of Entrapment applied to the
        count for which the jury convicted [Gnacinski], Receiving Stolen
        Property . . . .

Pro Se Brief for Gnacinski at 6. However, his arguments in support of these

issues is conclusory. See id. at 8-9.

        Having passed upon the procedural requirements under Anders and

Santiago, we now must conduct an independent review of the record to

determine whether, as Mr. Vandeveld claims, this appeal is wholly frivolous,

or if there are meritorious issues for Gnacinski to pursue before this Court.

Santiago, 978 A.2d at 355 (quoting Anders

court     not counsel    then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds it




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J-S39022-14



                                          ...

presented by Mr. Vandeveld.

      With regard to all entrapment issues, Mr. Vandeveld provides the

following analysis:


      and during deliberations, that the affirmative defense of
      entrapment applies to receiving stolen property charges . . .,

      to give the instruction and did not object when the trial court
      expressly stated its intention to instruct the jury in response to
                                                                  pment
      defense did not apply to receiving stolen property. The claim on
      appeal was thus waived.

Brief for Gnacinski at 13 (citing Commonwealth v. Hodge, 411 A.2d 503,

506 n.8 (Pa. Super.

object to t

      In point of fact, the trial court charged the jury regarding entrapment,

but expressly indicated to the jury that the defense of entrapment would not

apply to the charge of receiving stolen property, the only charge of which

Gnacinski ultimately was convicted. Notes of Testimony     Afternoon Session,

7/24/2013, at 101-05.     Gnacinski raised no contemporaneous objection.

During deliberations, the jury asked the court the following question:

consider entrapment, do we not consider any other charge, or can we pick



discussion with counsel, the trial court indicated that it would respond as

follows:


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J-S39022-14


       [E]ntrapment, if established by a preponderance of the evidence,
       is a defense to all the charges except the receiving stolen
       property charge.

       Now, I mentioned that to counsel earlier and I want to explain
       my answer there. Receiving stolen property is a continuing
       offense. It does not appear that even if they found entrapment
       that would have anything to do with the receiving stolen
       property.[6] But I do believe it would be applicable; that is,
       entrapment, to the other charges.

Id. at 2-3. Neither party objected to the tri

       Although Gnacinski pursues this issue further in his pro se brief, he

does not address Mr.



re



                 -deliberation inquiry on the same topic.7   Based upon our
____________________________________________


6
       Our research has not disclosed any authority to this effect. However,
because we agree with counsel that Gnacinski failed to preserve the issue at
trial, whether such a principle applies (or should apply) under Pennsylvania
law is immaterial.
7
      Gnacinski appears to present the issue that the trial court should have
directed his acquittal of all charges as a matter of law, based upon his
entrapment defense. Gnacinski aptly cites Commonwealth v. Medley, 725
A.2d 1225 (Pa. Super. 1999), for the proposition that the court may direct a
verdict of acquittal based upon entrapment when there is no dispute as to
the operative facts relating to the defense, and the undisputed evidence
points only to the conclusion that entrapment should be found as a matter of
law. See Pro se Brief for Gnacinski at 8-9; see also Medley, 725 A.2d at
1227. However, in applying Medley to the instant case, Gnacinski offers

no reasonable jury could                                              Pro
se Brief for Gnacinski at 8-9. Absent a more developed argument supported
(Footnote Continued Next Page)


                                           -8-
J-S39022-14



review of the record, we agree that at no time did trial counsel preserve any

such objection. Accordingly, we may not consider that unpreserved issue on

direct appeal.8

      This leaves only the sentencing issue proposed by Mr. Vandeveld,

which Gnacinski does not address in his pro se brief.           Mr. Vandeveld

suggested that Gnacinski might raise the argument that the trial court

should have sentenced Gnacinski to probation rather than total confinement



manifestly excessive under the circumstances of this case.

      A claim of manifest excessiveness implicates the discretionary aspects

                               Commonwealth v. Boyer, 856 A.2d 149, 151-52

(Pa. Super. 2004).        We review challenges to the discretionary aspects of



      Discretion is abused when the course pursued by the trial court
      represents not merely an error of judgment, but where the
      judgment is manifestly unreasonable or where the law is not

                       _______________________
(Footnote Continued)

by references to the record and on-point legal authority, we are constrained
to find that this issue is waived. See Pa.R.A.P. 2119; Commonwealth v.
Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008).
8

this issue at a later date under the auspices of the Post-Conviction Relief
Act, 42 Pa.C.S. §§ 9541, et seq., as one implicating the constitutional
effectiveness of trial counsel.    However, ordinarily, and under these
circumstances, we may not consider challenges to the effectiveness of
counsel on direct appeal. See Commonwealth v. Padilla, 80 A.3d 1238,
1272 (Pa. 2013).



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J-S39022-14


     applied or where the record shows that the action is a result of
     partiality, prejudice, bias or ill will.

Commonwealth       v.   Archer,   722   A.2d   203,   211   (Pa. Super. 1998)

(citations, internal quotation marks, and brackets omitted).

     Challenges to the discretionary aspects of sentencing do not
     guarantee an appeal as of right. Commonwealth v. Sierra,
     752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging
     the discretionary aspects of his sentence must invoke this
                                         -part test:

        [W]e conduct a four-part analysis to determine:
        (1) whether appellant has filed a timely notice of appeal,
        see Pa.R.A.P. 902 and 903; (2) whether the issue was
        properly preserved at sentencing or in a motion to
        reconsider and modify sentence, see Pa.R.Crim.P. 720;
        (3)
        2119(f); and (4) whether there is a substantial question
        that the sentence appealed from is not appropriate under
        the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

     Commonwealth         v.  Evans,   901   A.2d  528,    533
     (Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006)
     (citations omitted).

     When appealing the discretionary aspects of a sentence, an

     brief a separate concise statement demonstrating a substantial
     question as to the appropriateness of the sentence under the
     Sentencing Code.       Pa.R.A.P. 2119(f); Commonwealth v.
     Mouzon, 812 A.2d 617 (Pa. 2002). The concise statement must
                                                                ng

     Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.
     Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d
     721, 727 (Pa. Super.), appeal denied, 759 A.2d 920 (Pa. 2000)).

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825 (Pa. Super. 2007). A substantial question

     that the se                                          inconsistent
     with a specific provision of the Sentencing Code; or (2) contrary

                                    - 10 -
J-S39022-14


      to the fundamental norms which underlie the sentencing
               Sierra, supra at 912-13.

Commonwealth v. Prisk, 13 A.3d 526, 532-33 (Pa. Super. 2011) (citations

modified; bracketed modifications in Prisk).

      Mr. Vandeveld duly has presented the issue in technical compliance

with the above-stated standard. In his Rule 2119(f) statement, he presents

                                              ole argument: Gnacinski contends

that the trial court abused its discretion by declining to release Gnacinski for

medical treatment for tumors and hepatitis C.         Brief for Gnacinski at 10.

Mr. Vandeveld observes that this was the sole sentencing challenge

presented by Gnacinski in his pro se motion to modify sentence. By way of

providing more detail, the motion specifically averred that Gnacinski sought



[Gnacinski] had [a] large tumor removed from [his] back on October 7,

2013[,] and needs [his] stitches removed [on] October 21, 2013[,] and



10/10/2013.    Regarding Hepatitis C, Gnacinski averred that he was then

seeking medical advice from [a physician at] the Cleveland Clinic for this

disease and is receiving treatment and medical procedures from Dr. Kang of

Erie, [Pennsylvania,] for removal of multiple massive tumors throughout his

         Id.                     respectfully but vociferously demand[ed] a

sentencing modification of home monitor or delayed sentencing until his

                                       Id.



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J-S39022-14



        In Commonwealth v. Ladamus, 896 A.2d 592 (Pa. Super. 2006),

the defendant sought a reduction in his guideline-minimum sentence based

upon his own medical condition and his status as the primary caregiver for

his mother. We found that the defendant had failed to present a substantial

                                                                   egation of

excessiveness, because the defendant failed to explain how his sentence

violated a fundamental norm of the Sentencing Code. Id. at 596. We also

held generally that the specific challenges raised    including the allegation

that it was an abuse of discretion for the trial court not to reduce the

                                                     simply did not present a

substantial question.

        We find that the same principle applies in the instant case.   First, it

appears that at least one of the specific concerns expressed by Gnacinski

the removal of his stitches      has been mooted by the passage of time.

Second, while it is beyond cavil that the Eighth Amendment to the United

States Constitution requires that prisoners be provided adequate medical

care,                                 , 838 A.2d 16, 20 (Pa. Cmwlth. 2003),

we are unaware of any authority entitling a defendant sentenced to total

confinement to continue receiving medical treatment from the provider or

providers of his choice.

        In Commonwealth v. Dunlavey, 805 A.2d 562 (Pa. Super. 2002),

we addressed a post-imprisonment motion for a modification of sentence

from confinement to probation to facilitate treatment of a serious illness, as

                                    - 12 -
J-S39022-14



then provided for by 61 P.S. § 81.9            Section 81 provided that, upon an

adequate showing of illness and necessity, a prisoner could be removed from

a penal institution for purposes of obtaining medical care. We held that the

statute applied only to inmates who become seriously ill while in prison.

Dunlavey, 805 A.2d at 563-64.             We further held that, in order to obtain



                                                                      Id. at 564.

       Although Dunlavey differed from the instant case in its procedural

posture and its factual circumstances, the principle remains clear that a

convicted, sentenced, and incarcerated inmate is entitled only to adequate

                                                                              sub

judice, Gnacinski at no time alleged that institutional medical providers

would be unable to meet his medical needs.10           Consequently, we find that
____________________________________________


9
      Section 81 since has been repealed and replaced. See Act of Aug. 11,
2009, P.L. 147, No. 33, § 4 (effective Oct. 13, 2009). Although the revision
materially altered the standard of proof by which a prisoner may establish a
basis for removal for purposes of medical treatment, see Commonwealth
v. Folk, 40 A.3d 169, 172 (Pa. Super. 2012), the distinction does not bear
on our analysis in the context of this case.
10
      On July 14, 2014, during the pendency of this appeal, Gnacinski filed
pro se
                                                  a topic best suited to the
context of a petition for collateral relief under the PCRA, as explained
supra                                  rs from Hepatitis C and some form of

Proceedings, 7/14/2014, at 1. As a general rule, this Court will not consider
pro se filings from parties who are represented by counsel, a circumstance

(Footnote Continued Next Page)


                                          - 13 -
J-S39022-14



Gnacinski failed to present a substantial question.     See Ladamus, supra.

Moreover, even assuming arguendo that he presented such a question, the

record would not support a finding that the trial court abused its discretion in

refusing to grant Gnacinski the sentencing modification he requested.

      We have conducted an independent review of the trial record in this

case and confirmed Mr.                                                -frivolous

issues that Gnacinski may raise on direct appeal.




                       _______________________
(Footnote Continued)

See Commonwealth v. Jette, 23 A.3d 1032, 1044-45 (Pa. 2011);
Commonwealth v. Ellis, 626 A.2d 1137, 1140-41 (Pa. 1993). Ordinarily,
the proper practice is to refer the pro se filing to counsel of record, and to
take no further action on the pro se submission unless counsel forwards a
motion. Jette, 23 A.3d at 1044. Furthermore, our Supreme Court has held
                                                                              -
rep                            Id.
       In the Anders/Santiago context, however, counsel constructively
disclaims the obligation to advocate on behalf of his client. Notably, the
Anders/Santiago procedure allows and indeed invites the appellant to file
a pro se br
conclusion that no non-frivolous appeal will lie. Accordingly, we will assume
arguendo
merits. Nonetheless, we find that th
prior pro se allegations of inadequate medical care, which, taken as a whole,
do not change our conclusion that no non-frivolous argument regarding
sentencing excessiveness based upon an alleged failure of the prison system
to provide for his medical needs will lie under the circumstances of this case.
If, in fact, Gnacinski is being denied the care to which he is entitled, his
complaint properly lies with the Department of Corrections. He should
present the issue in due course to the appropriate administrative body or the
Pennsylvania Commonwealth Court in the first instance. On the record




                                           - 14 -
J-S39022-14



     Judgment of sentence affirmed.    Darrel

                                                aw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2014




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