J-S42008-23
2024 PA Super 16
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK MICHAEL FALCEY, JR. :
:
Appellant : No. 1541 EDA 2023
Appeal from the Judgment of Sentence Entered November 18, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0005656-2020
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
OPINION BY BOWES, J.: FILED JANUARY 29, 2024
Patrick Michael Falcey, Jr. appeals from the judgment of sentence of two
and one-half to five years of incarceration imposed after the trial court found
him in violation of his probation. Appellant’s counsel, Stuart Wilder, Esquire
has filed a petition to withdraw as counsel and brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago,
978
A.2d 349 (Pa. 2009). Upon review, we deny counsel’s petition to withdraw
and remand for further proceedings consistent with this opinion.
Appellant pled guilty in 2021 to terroristic threats, simple assault, and
possessing instruments of crime following an incident with his girlfriend and
grandparents. The court imposed time served to two-years-less-one-day of
imprisonment, followed by five years of probation. After his release from
incarceration, Appellant failed to comply with the terms of his supervision, and
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following a Gagnon II hearing, the trial court determined that he violated
probation and imposed the above-referenced sentence. This timely appeal
ensued. The trial court filed a concise statement order, and Attorney Wilder
submitted a statement of intent to withdraw pursuant to Pa.R.A.P. 1925(c)(4).
Thereafter, the trial court filed its Rule 1925(a) opinion.
Counsel in this Court filed both an Anders brief and a petition to
withdraw as counsel. The following legal principles apply to our consideration
of these filings:
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.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has further detailed counsel’s duties
as follows:
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[I]n 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 he has not complied with the requirements
set forth above. Counsel provided an appropriate summary of the facts and
procedural history. See Anders brief at 6-12. Further, he supplied the brief
to Appellant and advised him of his right to hire new counsel or proceed pro
se in this Court.1 However, counsel’s Anders brief is defective because it
simultaneously contends that Appellant’s appeal is wholly frivolous and that
the lower court abused its discretion in sentencing Appellant to the
abovementioned term. See id. at 13.
In this vein, counsel devotes a section of the Anders brief to explaining
that Appellant’s claims are frivolous and that he should be permitted to
withdraw. See id. at 14-20. Counsel opines that “there are no non-frivolous
grounds that can be advanced in support of [A]ppellant’s appeal.” Id. at 20.
____________________________________________
1 Appellant filed a pro se response to Attorney Wilder’s letter, wherein
Appellant alleged that the Commonwealth and the probation officer who
testified at the hearing concerning the revocation of Appellant’s probation
offered false testimony. See Appellant’s Response to Anders brief, 9/20/23,
at 1-3.
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Attorney Wilder also states that Appellant’s sentence was “well within the [trial
court’s] discretion.” Id.
However, counsel then argues that, in sentencing Appellant, the court
did not give sufficient weight to a purported mitigating factor, i.e., Appellant’s
rehabilitative needs. Id. at 25. Attorney Wilder contends that “[t]he court’s
explanation for its sentence insufficiently acknowledged the testimony of
[A]ppellant and his father that augured a law-abiding future for the
[A]ppellant once he received adequate treatment.” Id. Counsel asserts that
because the judgement of sentence was not necessary to vindicate the
authority of the court, it should be vacated as excessive, and the matter
remanded to the trial court. Id.
As this Court thoroughly discussed in Commonwealth v. Morrison,
173 A.3d 286 (Pa.Super. 2017), it is improper for counsel to file a hybrid
advocate’s/no-merit brief. We explained that the Anders procedure “applies
only to appeals that are wholly frivolous—that is, cases where counsel has
determined that there are no arguments that counsel may advance because
all issues lack basis in law and/or fact.”
Id. at 291 (emphases in original).
Attorney Wilder briefly articulated what he believed to be an issue of arguable
merit, namely that the sentence was not necessary to vindicate the court’s
authority and was excessive. Hence, the hybrid analysis outlined in the
Anders brief is defective, and an advocate’s brief is required.
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However, because counsel filed a 1925(c)(4) statement of intent to
withdraw in lieu of a Rule 1925(b) statement, the trial court never had an
opportunity to address this potentially meritorious issue. Accordingly, we
remand the matter for the trial court to file a Rule 1925(a) opinion addressing
the merits of Appellant’s claim. See Pa.R.A.P 1925(c)(4) (stating that where
counsel files an Anders brief and petition to withdraw, “[i]f the appellate court
believes there are arguably meritorious issues for review, those issues will not
be waived; instead, the appellate court shall remand for the filing and service
of a Statement pursuant to Pa.R.A.P. 1925(b), a supplemental opinion
pursuant to Pa.R.A.P. 1925(a), or both”); see also Commonwealth v.
Stroud, 298 A.3d 1152, 1158 (Pa.Super. 2023).
Hence, we deny Attorney Wilder’s petition to withdraw and instruct the
trial court to file an opinion addressing Appellant’s sentencing claim within
thirty days of the date of this opinion. The Prothonotary of this Court shall
subsequently establish a new schedule for briefing.
Finally, while Attorney Wilder and the Commonwealth both cite the
transcript from Appellant’s November 5, 2021 guilty plea and sentencing
hearing, it is not included in the certified record. As it is Appellant’s burden
to ensure that the certified record is complete, we direct counsel to
supplement the certified record with this transcript pursuant to Pa.R.A.P.
1926(b). Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super. 2013)
(stating it is an appellant’s responsibility to ensure that the certified record
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includes “all of the materials necessary for the reviewing court to perform its
duty”).
Petition of Stuart Wilder, Esquire, to withdraw as counsel is denied.
Counsel shall obtain the missing transcript and secure its inclusion in a
supplemental certified record. Matter remanded with instructions. Panel
jurisdiction retained.
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