J-S16024-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ARMSTEAD ELYSISS MCLEAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1056 WDA 2016

Appeal from the Judgment of Sentence June 20, 2016

in the Court of Common Pleas of Somerset County 

Criminal Division at No(s): CP-56-CR-0000981-2015

BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.: FILED MAY 22, 2017

Appellant, Armstead Elysiss McLean, appeals from the judgment of 

sentence of six to twelve months of incarceration, imposed June 20, 2016, 

following a guilty plea resulting in his conviction for possession of a 

controlled substance. Appellant’s counsel, Megan E. Will, Esq., seeks to 

withdraw her representation of Appellant pursuant to Anders v. California, 

87 S. Ct. 1936 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 

(Pa. 1981). Because the Anders brief is deficient, we deny counsel's 

petition to withdraw and direct counsel to file either a compliant Anders

brief or an advocate’s brief.

We derive the following statement of facts and procedural background 

of this case from the trial court opinion. See Trial Court Opinion, 

10/24/2016, at 1-2. In November 2015, Appellant was incarcerated at State 

Correctional Institution - Somerset and observed receiving a controlled 
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substance known as “K-2” from a visitor to the institution. In April 2016, 

Appellant pleaded guilty to one count of possession of a controlled 

substance, an ungraded misdemeanor.1 In June 2016, the court sentenced 

Appellant to six to twelve months of incarceration to be served consecutive 

to Appellant’s existing sentence. Appellant was not given credit for time 

served and was found to be ineligible for RRRI.

Appellant timely filed a post-sentence motion requesting a concurrent 

sentence, which was denied. Appellant timely appealed and filed a courtordered Pa.R.A.P. 1925(b) statement challenging the discretionary aspects 

of his sentence. The trial court issued a responsive opinion.

In November 2016, counsel filed an Anders brief and application to 

withdraw as counsel. The brief sets forth the following issue Appellant seeks 

to raise on appeal:

Whether the lower court abused its discretion in sentencing the 

[Appellant], such that the lower court did not consider 

Appellant’s individual circumstances in fashioning the sentence 

and the sentence is unfair? 

Anders Brief at 16.

When faced with a purported Anders brief, this Court may not review 

the merits of any possible underlying issues without first examining 

counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d 

287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on 

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1 See 35 P.S. § 780-113(a)(16).
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direct appeal under Anders, counsel must file a brief that meets the 

requirements established by the Pennsylvania Supreme Court, namely:

(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). 

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 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. Nischan, 928 A.2d 349, 353 (Pa. Super. 

2007), appeal denied, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014). 

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. If the appeal is 

frivolous, we will grant the withdrawal petition and affirm the 

judgment of sentence. However, if there are non-frivolous 

issues, we will deny the petition and remand for the filing of an 

advocate's brief.
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Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa. Super. 2007) 

(citations omitted). 

In the instant matter, Attorney Will has supplied Appellant with a copy 

of her Anders brief and a letter explaining the rights enumerated in 

Nischan.

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 However, Attorney Will’s Anders brief does not comply with the 

above-stated requirements. 

First, the summary of the relevant factual and procedural history 

provided does not cite to the record. See Commonwealth v. Goodenow, 

741 A.2d 783, 786 (Pa. Super. 1999) (recognizing counsel's sparse recital of 

the procedural history in his Anders brief, devoid of references to the record 

and contextual relevance to appellant, did not meet the technical 

requirements of Anders or evidence counsel's required review). Instead, 

counsel directs our attention to the guilty plea and sentencing transcripts in 

their entirety as attached to the brief. Second, counsel fails to refer to any 

portions of the record that could arguably support Appellant’s claim.3 

Third, counsel failed to reach a finding of frivolousness in the brief. 

See Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007) 

(rejecting an Anders brief in part because counsel failed to conclude that 

the appeal was frivolous, although counsel reached that conclusion in his 

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2 Appellant has not filed a response to counsel’s Anders brief.

3 Counsel also failed to attach the second page of Appellant’s 1925(b) 

statement
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petition). Notably, in the context of Anders the Supreme Court of 

Pennsylvania has observed: 

It should be emphasized that lack of merit in an appeal is not 

the legal equivalent of frivolity. Anders “appears to rest 

narrowly on the distinction between complete frivolity and 

absence of merit.” The latter is not enough to support either a 

request by counsel to withdraw, nor the granting of such a 

request by the court.

Commonwealth v. McGeth, 500 A.2d 860, 862-863 (Pa. Super. 1985) 

(quoting Commonwealth v. Greer, 314 A.2d 513, 514 (Pa. 1974)). 

In light of our foregoing analysis, we conclude that counsel's brief fails 

to meet the mandates of Anders. Accordingly, we deny Attorney Will's 

petition to withdraw without prejudice to re-file such a petition. 

We remand this case and direct counsel to file, within thirty days of 

the date of this memorandum, either an advocate's brief or a proper Anders

brief and petition to withdraw. Thereafter, the Commonwealth shall have 

thirty days to respond.

Petition to withdraw as counsel denied. Case remanded with 

instructions. Jurisdiction retained.