J-S16032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GIANNA MARIE ROSE,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2059 EDA 2019

Appeal from the Judgment of Sentence Entered June 13, 2019

in the Court of Common Pleas of Pike County

Criminal Division at No(s): CP-52-CR-0000390-2018, 

CP-52-CR-0000401-2018, CP-52-CR-0000402-2018

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 07, 2020

Gianna Marie Rose (“Rose”) appeals from the judgment of sentence 

imposed following her negotiated guilty plea to criminal conspiracy and drug 

delivery resulting in death at Pike County docket number 390-2018 (“390-

2018”), and delivery of a controlled substance at Pike County docket 

numbers 401-2018 (“401-2018”) and 402-2018 (“402-2018”).1 Additionally, 

Rose’s counsel, Lindsey Collins, Esquire (“Attorney Collins”), has filed a 

Petition to Withdraw as counsel and an accompanying brief pursuant to 

Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney 

Collins’s Petition to Withdraw and affirm Rose’s judgment of sentence.

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1 18 Pa.C.S.A. §§ 903(a)(1), 2506(a); 35 P.S. § 780-113(a)(30).
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On April 18, 2019, Rose entered a guilty plea to the above-mentioned 

offenses. On June 13, 2019, the trial court sentenced Rose, at 390-2018, to 

66 months to 12 years in prison for the charge of criminal conspiracy and a 

consecutive term of 78 months to 13 years in prison for the charge of drug 

delivery resulting in death; and at 401-2018 and 402-2018, to 6 to 12 

months in prison at each, to be served concurrently with each other and the 

charges at 390-2018. Rose did not file any post-sentence motions. Rose 

filed timely Notices of Appeal, one at each docket number, and with all three 

docket numbers listed on each. Rose additionally filed a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. 

On August 9, 2019, this Court issued a Rule to Show Cause why Rose’s 

appeal should not be quashed in light of Commonwealth v. Walker, 185 

A.3d 969, 977 (Pa. 2018) (stating that “when a single order resolves issues 

arising on more than one lower court docket, separate notices of appeal 

must be filed. The failure to do so will result in quashal of the appeal.” 

(citing Pa.R.A.P. 341)). See also Commonwealth v. Creese, 216 A.3d 

1142, 1144 (Pa. Super. 2019) (quashing an appeal, pursuant to Walker,

where the appellant filed a notice of appeal at each docket number, but each 

notice of appeal contained multiple docket numbers). Attorney Collins did 

not file a response. On August 21, 2019, Attorney Collins filed a “Petition for 

Leave of Court to Amend the Notice of Appeal and Submit Nunc Pro Tunc.” 

On October 4, 2019, this Court entered an Order informing the parties that 
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disposition of the Walker issue and Attorney Collins’s Petition would be 

deferred to the merits panel.

Subsequently, this Court granted en banc review of two cases to 

address the issue presented by Walker and Creese; i.e., whether the 

inclusion of multiple docket numbers on a notice of appeal violates Walker

and Pa.R.A.P. 341. See Commonwealth v. Johnson, 2020 PA Super 164, 

at *4 (Pa. Super. filed July 9, 2020) (en banc); Commonwealth v. Larkin, 

2020 PA Super 163, at *3 (Pa. Super. filed July 9, 2020) (en banc). On July 

9, 2020, this Court in Johnson and Larkin held that where separate notices 

of appeal are filed at each docket number, the inclusion of multiple docket 

numbers on each notice of appeal does not invalidate the notices of appeal, 

thereby overruling Creese, and declined to quash the appeals. See 

Johnson, 2020 PA Super 164, at *12; Larkin, 2020 PA Super 163, at *3.

Instantly, Rose filed three notices of appeal, one at each docket, and 

each of which contained all three docket numbers. Pursuant to Johnson

and Larkin, we conclude that Rose has complied with Walker and Pa.R.A.P. 

341.

Before addressing Rose’s claim on appeal, we must determine whether 

Attorney Collins has complied with the dictates of Anders and its progeny in 

petitioning to withdraw from representation. See Commonwealth v. 

Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen 

presented with an Anders brief, this Court may not review the merits of the 

underlying issues without first passing on the request to withdraw.”). 
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Pursuant to Anders, when counsel believes that an appeal is frivolous 

and wishes to withdraw from representation, he or she must

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record and 

interviewing the defendant, counsel has determined the appeal 

would be frivolous, (2) file a brief referring to any issues in the 

record of arguable merit, and (3) furnish a copy of the brief to 

defendant and advise him of his right to retain new counsel or to 

raise any additional points that he deems worthy of the court’s 

attention. The determination of whether the appeal is frivolous 

remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) 

(citation omitted). 

Additionally, the Pennsylvania Supreme Court has explained that a 

proper Anders brief 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

After determining that counsel has satisfied the technical requirements 

of Anders and Santiago, this Court must then “conduct a simple review of 

the record to ascertain if there appear on its face to be arguably meritorious 

issues that counsel, intentionally or not, missed or misstated.” 
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Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en 

banc).

In the instant case, our review of the Anders Brief and the Petition to 

Withdraw reveals that Attorney Collins has substantially complied with each 

of the requirements of Anders/Santiago. See Commonwealth v. 

Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must 

substantially comply with the requirements of Anders). Attorney Collins 

indicates that she has made a conscientious examination of the record and 

determined that an appeal would be frivolous. Further, Attorney Collins’s 

Anders Brief comports with the requirements set forth by the Supreme 

Court of Pennsylvania in Santiago. Finally, Attorney Collins provided Rose

with a copy of the Anders Brief, and advised her of her rights to proceed 

pro se, retain new counsel, or raise any additional points deemed worthy of 

the Court’s attention. Thus, Attorney Collins has complied with the 

procedural requirements for withdrawing from representation. We next 

examine the record and make an independent determination of whether 

Rose’s appeal is, in fact, wholly frivolous.

Attorney Collins presents the following issue, on behalf of Rose, for our 

review: “Whether the trial court erred in imposing an excessive sentence 

when sentencing [Rose] at the highest range of the sentencing guidelines on 

the charges of drug delivery resulting in death and criminal conspiracy to 
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commit drug delivery resulting in death?” Anders Brief at 7 (capitalization 

omitted).

This issue challenges the discretionary aspects of Rose’s sentence. “A 

challenge to the discretionary aspects of sentencing is not automatically 

reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793, 

815 (Pa. Super. 2017). Prior to reaching the merits of a discretionary 

sentencing issue,

[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) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 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).

Grays, 167 A.3d at 815-16 (citation omitted). 

Rose, via Attorney Collins, filed a timely Notice of Appeal. However, 

Rose failed to preserve her claim in a post-sentence motion. See 

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (stating 

that “issues challenging the discretionary aspects of a sentence must be 

raised in a post-sentence motion or by presenting the claim to the trial court 

during the sentencing proceedings. Absent such efforts, an objection to a 

discretionary aspect of a sentence is waived.”); see also Pa.R.A.P. 302(a) 

(stating that “[i]ssues not raised in the lower court are waived and cannot 
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be raised for the first time on appeal.”).2 Moreover, we are unable to review 

Rose’s claim, because Rose has failed to request with the trial court, and 

include in the certified record, the transcript for Rose’s sentencing hearing.

See Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (stating 

that “it is an appellant’s duty to ensure that the certified record is complete 

for purposes of review. ... [F]ailure to ensure that the record provides 

sufficient information to conduct a meaningful review constitutes waiver of 

the issue sought to be reviewed.” (citation and quotation marks omitted)). 

Accordingly, Rose’s claim is waived. 

Finally, our independent review of the record discloses no additional 

non-frivolous issues that could be raised on appeal. See Dempster, supra.

We therefore grant Attorney Kelly’s Petition, and affirm Rose’s judgment of 

sentence.

Petition to Withdraw granted. Petition for Leave of Court to Amend the 

Notice of Appeal denied as moot. Judgment of sentence affirmed.

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2 We note that Attorney Collins also did not include a Rule 2119(f) statement 

within the Anders brief. See Grays, supra. Nevertheless, we decline to 

waive Rose’s claim on this ground because the Commonwealth has not 

objected to this deficiency. See Commonwealth v. White, 193 A.3d 977, 

982 (Pa. Super. 2018) (declining to waive an appellant’s claim for failure to 

include a Rule 2119(f) statement where the Commonwealth did not object).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/20