J-S33035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GARY PALMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1108 EDA 2019

Appeal from the Judgment of Sentence Entered November 19, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0204941-2006

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 07, 2020

Appellant, Gary Palmer, appeals from the November 19, 2018 judgment 

of sentence entered in the Court of Common Pleas of Philadelphia County after 

the trial court resentenced appellant to an aggregate term of incarceration of 

11 to 22 years, followed by 6 years’ probation, as a result of his conviction in 

a jury trial of multiple counts of robbery, theft, assault, drug offenses and 

firearms violations. Appellant’s attorney, J. Matthew Wolfe, Esq., has filed a 

petition to withdraw, alleging that the appeal is frivolous, and an Anders brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review, 

we deny counsel's petition to withdraw and remand with instructions.

The trial court set forth the following procedural history:

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* Former Justice specially assigned to the Superior Court.
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On May 29, 2007, at the conclusion of his jury trial before the 

Honorable Earl W. Trent, Defendant [hereinafter “Appellant”] was 

found guilty on numerous related charges of Robbery, Theft, 

Assault, Drug [offenses,] and Firearms violations. On August 2, 

2007, Judge Trent sentenced Appellant to an aggregate period of 

confinement of 11 to 22 years followed by 6 years’ probation. 

Appellant did not file post sentence motions.

On August 31, 2007, Appellant timely filed a direct appeal to the 

Superior Court. . . . By order dated May 14, 2008, Appellant’s 

appeal was dismissed for “failure to file brief.” [Appellant filed a 

pro se petition pursuant to the Post Conviction Relief Act seeking 

reinstatement of his direct appeal rights. On November 30, 2010, 

[the PCRA court] reinstated his direct appeal rights. On May 12, 

2010, Appellant timely filed a direct appeal to the Superior Court[, 

which affirmed judgment of sentence after finding Appellant had 

waived his claims. Appellant filed a petition for allowance of 

appeal with the Supreme Court of Pennsylvania, but his petition 

was denied on May 2, 2013].

On December 20, 2013, Appellant timely filed a pro se PCRA 

petition. On July 1, 2014, J. Matthew Wolfe, Esq. was appointed 

counsel to represent Appellant for the purposes of his PCRA 

petition. On February 3, 2016, the [PCRA court], after a hearing, 

entered an Order dismissing Appellant’s PCRA petition as being 

without merit.

On March 30, 2016, Appellant timely filed a direct appeal to the 

Superior Court of Pennsylvania, . . . which, on finding Appellant’s 

mandatory minimum sentence illegal pursuant to Alleyne v. 

United States, 133 S.Ct. 2151, 2163 (2013), affirmed 

Appellant’s judgment of sentence in part, and remanded the 

matter back for resentencing. 

On November 19, 2018, the [trial court], after a hearing, 

[resentenced Appellant to a discretionary sentence of identical 

duration to the previous sentence, i.e., 11 to 22 years, followed 

by 6 years’ probation]. On November 22, 2018, Appellant filed a 

post sentence motion seeking reconsideration of his sentence, 

which the [trial court] denied, after a hearing, on March 19, 2019.

On April 17, 2019, Appellant timely filed the instant appeal to the 

Superior Court of Pennsylvania. On May 14, 2019, [the trial court 

issued an order upon Appellant to file a Concise Statement 
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pursuant to Pa.R.A.P. 1925(b)]. On May 30, 2016, Appellant filed 

his “Statement Pursuant to 1925(c)(4),” in which he stated:

“No errors are presented because after a review of the 

record, counsel has concluded that there are no nonfrivolous issues to raise on appeal and at the present 

time intends to file a brief pursuant to the procedures 

set forth in Anders v. California, 386 U.S. 738 (1967) 

and Commonwealth v. McClendon, 434 A.2d 11185 

(1981) and would file a motion to withdraw from the 

case at the time of the filing of such a brief.”

Trial Court Opinion, 8/22/19, at 1-3. Counsel thereafter filed an Anders brief 

and motion to withdraw with this Court, and the trial court filed its Pa.R.A.P. 

1925(a) opinion. 

Preliminarily, we must address the petition to withdraw alleging that the 

appeal is frivolous and the Anders brief that Attorney Wolfe filed. 

A request by appointed counsel to withdraw pursuant to Anders

and Santiago gives rise to certain requirements and obligations, 

for both appointed counsel and this Court. Commonwealth v. 

Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

These requirements and the significant protection they 

provide to an Anders appellant arise because a criminal 

defendant has a constitutional right to a direct appeal and 

to counsel on that appeal. Commonwealth v. Woods, 

939 A.2d 896, 898 (Pa.Super. 2007). This Court has 

summarized these requirements as follows:

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.
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Anders counsel must also provide a copy of the 

Anders brief and petition to the appellant, advising 

the appellant of the right to retain new counsel, 

proceed pro se or raise additional points worthy of 

the Court's attention.

Woods, 939 A.2d at 898 (citations omitted).

There are also requirements as to the precise content of 

an Anders brief:

The Anders brief that accompanies courtappointed counsel's petition to withdraw ... 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, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed counsel has 

met these obligations, it is then our responsibility “to make a full 

examination of the proceedings and make an independent 

judgment to decide whether the appeal is in fact wholly frivolous.” 

Id. at 1248. In so doing, we review not only the issues identified 

by appointed counsel in the Anders brief, but examine all of the 

proceedings to “make certain that appointed counsel has not 

overlooked the existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Specifically, Attorney Wolfe furnished a copy of the Anders brief to 

Appellant and advised him contemporaneously by letter dated November 26, 

2019 of his right to retain new counsel, proceed pro se on the appeal, or raise 

any additional points that he deems worthy of this Court's attention. Attorney 
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Wolfe attached a copy of that letter to the Application to Withdraw as Counsel, 

which he filed with this Court. In the application to withdraw, Attorney Wolfe

averred that, after a conscientious examination of the record and an interview 

with Appellant, he concluded the appeal does not present a non-frivolous legal 

question. Additionally, Attorney Wolfe furnished appellant with a copy of the 

application to withdraw. Appellant has not filed a response to the Anders

brief or the counsel’s application to withdraw. 

With respect to briefing requirements, “[n]either Anders nor 

McClendon requires that counsel's brief provide an argument of any sort, let 

alone the type of argument that counsel develops in a merits brief. To repeat, 

what the brief must provide under Anders are references to anything in the 

record that might arguably support the appeal.” Santiago, 978 A.2d at 359, 

360. Once counsel has met his obligations, “it then becomes the responsibility 

of the reviewing court to make a full examination of the proceedings and make 

an independent judgment to decide whether the appeal is in fact wholly 

frivolous.” Santiago, 978 A.2d at 355 n.5.

Here Attorney Wolfe indicates in the Anders brief that he has made a 

conscientious examination of the record and then sets forth a procedural 

history of the case. Anders brief at 14. He also raises the issue presented 

in Appellant’s post-sentence motion, which challenged that Appellant’s new 

sentence was manifestly excessive. Id. at 15. Notably absent, however, is 

any reference to the November 19, 2018 sentencing hearing, let alone a 

discussion of the sentence imposed or the court’s stated reasons for imposing 
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such sentence. Instead, the extent of counsel’s discussion in this regard 

appears in the brief’s argument section which states only, “Counsel does not 

believe that the argument that the sentence was excessive has merit. The 

lower court's explanation that the original sentence fell within the lower end 

of the sentencing guidelines and most were to run concurrently cannot be 

considered an abuse of discretion.” Anders brief, at 15. 

However, counsel did not ensure that the certified record was complete, 

as the notes of testimony from the November 19, 2018 sentencing hearing

are not included despite his filing of an order for all notes of testimony 

transcribed in this case. Moerover, there is simply no indication from the 

Anders brief that counsel reviewed the transcript in preparing a brief for the 

present appeal. “Without these notes of testimony, counsel could not have 

fulfilled his duty to review the entire record for any non-frivolous issues.” 

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015) 

(unnecessary capitalization omitted). “We therefore cannot conclude that 

counsel has fulfilled his obligations pursuant to Anders.” Flowers, supra at 

1551 (unnecessary capitalization omitted). Accordingly, we must deny 

counsel's petition to withdraw and remand with instructions for counsel to 

obtain the missing notes of testimony and to file an advocate's brief, or a new 

Anders brief and another petition seeking to withdraw, following review of a 

complete record. See Flowers, supra at 1551.

Application of J. Matthew Wolfe, Esquire, to withdraw as counsel is 

denied. Case remanded with instructions. Panel jurisdiction retained.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/20