J-S87029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL PARKER

Appellant No. 589 MDA 2016

Appeal from the Judgment of Sentence Dated March 10, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0002383-2013

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED JANUARY 27, 2017

Appellant, Michael Parker, appeals from the judgment of sentence of 

5-10 years’ incarceration, which was imposed following a bench trial and 

convictions for burglary; criminal attempt to possess a controlled substance 

with intent to deliver (“PWID”); resisting arrest; flight to avoid 

apprehension; and reckless driving.1 With this appeal, Appellant’s counsel 

has filed a petition to withdraw and an Anders2 brief. In response, 

Appellant filed a pro se application for appointment of new counsel. After 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3502(a)(1), 901(a), 5104, and 5126(a) and 75 Pa.C.S. § 

3736(a), respectively. As noted below, Appellant’s current sentence was 

imposed after this Court remanded to the trial court for resentencing.

2 Anders v. California, 386 U.S. 738 (1967).
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careful review, we affirm the judgment of sentence, grant counsel’s petition 

to withdraw, and deny Appellant’s application for appointment of substitute 

counsel.

The relevant procedural history was recounted in our decision in an 

earlier appeal in this case:

[T]he trial court sentenced [Appellant] on January 23, 2015. At 

docket number 2383–2013, [Appellant] was sentenced to an 

aggregate term of five to ten years’ imprisonment for his 

convictions of burglary, criminal attempt—PWID, resisting arrest, 

flight to avoid apprehension, and reckless driving, which included 

a sentence of six to twelve months’ imprisonment on the flight to 

avoid apprehension count and a concurrent five to ten years’ 

imprisonment on the burglary count. . . . 

[Appellant] filed a post-sentence motion on February 2, 2015, 

which the trial court denied on February 10, 2015. On 

February 17, 2015, [Appellant] . . . filed a notice of appeal . . .

[Appellant] filed a petition to proceed pro se on direct appeal 

. . ., which the trial court granted on March 2, 2015. . . . .

On April 17, 2015, the trial court appointed [Appellant] new 

counsel . . . .

Commonwealth v. Parker, No. 309 MDA 2015, at 8-9 (Pa. Super., Dec. 

14, 2015) (unpublished memorandum).

In his direct appeal to this Court, Appellant challenged “the legality of 

his conviction of flight to avoid apprehension, 18 Pa.C.S. § 5126(a).” 
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Parker, No. 309 MDA 2015, at 1-2.3 On December 14, 2015, this Court, 

while rejecting Appellant’s substantive arguments, remanded to the trial 

court because it “detected a legal error in his sentence” that required 

correction. Id. at 13. The Court explained: “[A]lthough we do not disturb 

the underlying conviction, we vacate the sentence imposed at docket 

number 2383-2013 for flight to avoid apprehension because it merges with 

burglary for sentencing purposes.” Id. at 14. 

On remand, the trial court re-sentenced Appellant on March 10, 2016. 

On April 7, 2016, Appellant timely filed the instant appeal. On May 5, 2016, 

appellate counsel filed a Pa.R.A.P. 1925(c)(4) statement of his intent to file 

an Anders brief, and thereafter he filed a petition to withdraw and an 

Anders brief with this Court. On August 22, 2016, Appellant filed a onepage, handwritten pro se response to the Anders brief in which he 

challenges the conclusions of his appointed counsel and requests the 

appointment of new counsel. On August 26, 2016, the trial court entered a 

Statement in Lieu of Memorandum Opinion, stating that “it is our practice to 

refrain from filing a 1925(a) Opinion where appellate counsel has filed a 

Statement of Intent to file an Anders brief.” On October 24, 2016, 

____________________________________________

3 Appellant also claimed that his conviction on a related charge of attempted 

robbery, which had been tried under a separate docket number, was against 

the weight of the evidence. Parker, at 9.
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Appellant filed with this Court a pro se application requesting a remand for 

appointment of new appellate counsel.

“When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 

2010) (citation omitted). An Anders brief shall comply with the 

requirements set forth by the Supreme Court of Pennsylvania in 

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

[W]e hold that in the Anders brief that accompanies courtappointed 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.

Id. Counsel seeking to withdraw on direct appeal must also meet the 

following obligations to his or her client:

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

client. Attending the brief must be a letter that advises the 

client of his right to: (1) retain new counsel to pursue the 

appeal; (2) proceed pro se on appeal; or (3) raise any points 

that the appellant deems worthy of the court[’]s attention in 

addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal 

quotation marks and citation omitted). “Once counsel has satisfied the 

above requirements, it is then this Court’s duty to conduct its own review of 
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the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally, 

“this Court must conduct an independent review of the record to discern if 

there are any additional, non-frivolous issues overlooked by counsel.” 

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

(footnote and citation omitted).

In this appeal, appellate counsel’s July 20, 2016 correspondence to 

Appellant provided a copy of the Anders Brief to Appellant and advised 

Appellant of his right either to retain new counsel or to proceed pro se on 

appeal. Although that letter did not tell Appellant that he or his newly 

retained counsel may raise any points he deems worthy of the court’s 

attention, see Orellana, 86 A.3d at 880, it attached counsel’s petition to 

withdraw as counsel, and the petition did contain that information. Pet. to 

Withdraw as Counsel, dated July 20, 2016, at ¶ 9. Appellate counsel has 

thus met his obligations to his client under Orellana, 86 A.3d at 880.

Further, the Anders Brief complies with prevailing law, see 

Commonwealth v. Santiago, 978 A.2d at 361, by containing a procedural 

summary of the case, with a reference to the record. See Anders Brief at 

7. It also provides a factual summary, albeit a bare-bones one, with 

references to the record. See id. at 11. The brief advances relevant 
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portions of the record that arguably support Appellant’s claims on appeal, 

see Commonwealth v. Santiago, 978 A.2d at 361, and sets forth the 

standard for reviewing the sufficiency of the evidence, with references to the

record. See Anders Brief at 9-11. Finally, the brief provides reasons why 

Appellant’s challenge to the sufficiency of the evidence is “without arguable 

merit” and states that the record “is devoid of meritorious issues for appeal.” 

Anders Brief at 11. Appellate counsel’s Anders brief therefore complies 

with all requirements set forth in Commonwealth v. Santiago. As a 

result, we can conduct an independent review of the merits of the underlying 

issue to ascertain whether the appeal is indeed wholly frivolous. See 

Daniels, 999 A.2d at 593; Goodwin, 928 A.2d at 291.

Appellant presents a single issue for our review:

WAS INSUFFICIENT EVIDENCE PRESENTED TO SUSTAIN THE 

VERDICT?

Anders Brief at 6. This issue is not properly before us. Appellant was 

required to raise this issue in his first appeal to this Court and may not raise 

this issue now. 

An appellant is required to include in an appeal from the judgment of 

sentence all issues that he wishes to raise, and he waives any issues that he 

does not present at that time. “Because Appellant had the benefit of a direct 

appeal, he is barred from raising any issues other than a challenge to the 

sentence imposed on remand.” Commonwealth v. Williams, ____ A.3d 

___, 2016 PA Super 262, at *4 (Pa. Super., Nov. 23, 2016). In his first 
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appeal to this Court, the only issue raised by Appellant regarding the 

charges at issue here was that Commonwealth v. Benedetto, 462 A.2d 

830, 832 (Pa. Super. 1983), prohibited his conviction of both burglary and 

flight to avoid apprehension because Appellant committed the burglary as 

part of his effort to avoid apprehension. We rejected that argument. See 

Parker, at 12-13. We remanded the case only to correct the fact that 

Appellant could not be sentenced for both crimes because they merged 

under the Crimes Code, 18 Pa. C.S. § 3502(d). See Parker, at 13-14. The 

present appeal is from Appellant’s resentencing pursuant to our remand. 

But that remand did not give Appellant license to raise issues that he did not 

present on his first appeal and that he waived by failing to do so. 

Appellant’s opportunity to raise a sufficiency issue evaporated when he did 

not raise that issue on his direct appeal, and he may not raise a sufficiency 

issue now. Williams, 2016 PA Super 262, at *4.

The only issue before the trial court on remand was the proper 

resentencing of Appellant to correct the merger error identified by this 

Court. See Pa.R.A.P. 2591; Commonwealth v. Sepulveda, 144 A.3d 

1270, 1279-80 & n.19 (Pa. 2016). As Appellant now raises no issue 

regarding that resentencing, he presents no basis for appellate relief. We 

have reviewed the certified record consistent with Flowers, 113 A.3d at 

1250, and have discerned no additional arguably meritorious issues. 
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Accordingly, we grant appellate counsel’s petition to withdraw and affirm the 

trial court’s judgment of sentence.

We now turn to Appellant’s request that we remand for appointment of 

substitute appellate counsel. There is no question that an indigent prisoner 

is entitled to free legal counsel to assist him on direct appeal. See U.S. 

Const. amend. VI; Pa. Const. art. 1, § 9. But our review of the case law 

convinces us that Appellant is not entitled to substitute counsel at this point 

in his case.

We note that “the right to appointed counsel does not include the right 

to counsel of the defendant’s choice.” Commonwealth v. Albrecht, 720 

A.2d 693, 709 (Pa. 1998); see also Commonwealth v. Philistin, 53 A.3d 

1, 16 (Pa. 2012). In addition, our Supreme Court has concluded that once a 

reviewing court is satisfied with counsel’s assessment of the appeal as 

wholly frivolous, counsel has fully discharged his or her responsibility to an 

appellant and can do no more. Commonwealth v. McClendon, 434 A.2d 

1185, 1188 (Pa. 1981); see Commonwealth v. Santiago, 978 A.2d at 

359-61. Because this Court has agreed with appellate counsel’s conclusion 

that Appellant’s appeal is wholly frivolous, appellate counsel has fully 

discharged his duty and responsibility to Appellant, and Appellant is not 

entitled to appointment of substitute appellate counsel at public expense to 

redo the appeal. See id.; Santiago v. Commonwealth, Pa. Bd. of Prob. 
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& Parole, 506 A.2d 517, 520 (Pa. Cmwlth. 1986). Accordingly, we deny 

Appellant’s motion.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted. Application for substitution of appointed counsel denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/27/2017