J-S01043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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LANCE ALLEN MOSER JR.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1409 EDA 2019

Appeal from the Judgment of Sentence Entered July 25, 2018

in the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0002719-2017

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: Filed: January 21, 2021

Lance Allen Moser Jr. (Appellant) appeals nunc pro tunc from his July 

25, 2018 judgment of sentence of five to twelve months of imprisonment, 

which the trial court imposed after revoking his probation. Appellant’s 

counsel has filed a petition to withdraw as counsel and a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), as refined by Commonwealth 

v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we deny counsel’s 

petition without prejudice and remand for further proceedings consistent 

with this memorandum.

The procedural background underlying this matter can be summarized 

as follows. On May 18, 2017, Appellant pled guilty to one count each of

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* Retired Senior Judge assigned to the Superior Court.
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disorderly conduct and false identification to a law enforcement officer, and 

was sentenced to a term of one year of probation. On August 6, 2017, while 

on probation, Appellant was arrested and charged with simple assault and 

institutional vandalism. On February 2, 2018, Appellant pled guilty to both 

offenses. At the Gagnon II1 hearing, on July 25, 2018, Appellant stipulated 

to violating the terms of his probation. The court then revoked Appellant’s 

probation and sentenced Appellant to a term of five to twelve months of 

imprisonment.

Appellant pro se untimely filed a motion seeking modification of 

sentence on August 8, 2018, and a petition for early parole on August 16, 

2018, which were treated together as a petition for relief under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was 

appointed, and counsel filed an amended PCRA petition seeking 

reinstatement of Appellant’s direct appeal rights nunc pro tunc. The PCRA 

court granted Appellant’s petition to reinstate Appellant’s direct appeal 

rights. On April 29, 2019, this timely-filed appeal followed.

In lieu of a concise statement pursuant to Pa.R.A.P. 1925(b), counsel 

filed notice of intent to file an Anders brief pursuant to Pa.R.A.P. 

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1 “A Gagnon I hearing is a pre-revocation hearing to determine if probable 

cause exists that a violation was committed. After this determination is 

made, a Gagnon II hearing is conducted where the Commonwealth is 

required to establish that the defendant did violate his parole/probation.” 

Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa. Super. 2011) 

(citation omitted); see also Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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1925(c)(4). Because Appellant did not raise any claims before the trial 

court, rather than filing an opinion pursuant to Pa.R.A.P. 1925(a), the trial 

court filed an order transmitting the record to this Court and asking this 

Court to dismiss Appellant’s appeal and affirm his judgment of sentence.

In this Court, Appellant’s counsel filed both a petition to withdraw as 

counsel and an Anders brief. Accordingly, the following principles guide our 

review of this matter.

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. If 

the appeal is frivolous, we will grant the withdrawal petition and 

affirm the judgment of sentence. However, if there are nonfrivolous issues, we will deny the petition and remand for the 

filing of an advocate’s brief. 

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007) 

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure 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, 978 A.2d at 361 (emphasis added).

Counsel has failed to satisfy all of these requirements. Specifically, 

counsel has failed to meet the second requirement outlined in Santiago. In 

his brief, Appellant’s counsel argues that he has failed to discover any 

meritorious issues that can be raised on appeal, and therefore, the appeal is 

frivolous. Anders Brief at 9. In fact, the only issue that counsel appears to 

raise is a challenge to the discretionary aspects of Appellant’s sentence,2 but 

counsel’s Anders brief does not refer to anything in the record that counsel 

believes arguably supports the appeal. Counsel merely presents arguments 

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2 Counsel failed to include a Pa.R.A.P. 2119(f) statement. See Pa.R.A.P. 

2119(f) (“[a]n appellant who challenges the discretionary aspects of a 

sentence ... shall set forth in a separate section of the brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence”). Cf. Commonwealth v. Zeigler, 

112 A.3d 656, 661 (Pa. Super. 2015) (“Where counsel files an Anders brief, 

this Court has reviewed the matter even absent a separate [Rule] 2119(f) 

statement.”). Therefore, “we do not consider counsel’s failure to submit a 

Rule 2119(f) statement as precluding review of whether Appellant’s issue is 

frivolous.” Zeigler, 112 A.3d at 661.
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that promote affirmance of the trial court’s rulings by explaining how the 

sentence is appropriate. Id. at 7-8.

Although an appellant’s counsel is not required to advocate strongly 

for issues he or she believes are frivolous, “[a] brief that essentially argues 

for affirmance is unacceptable.” Commonwealth v. Vilsaint, 893 A.2d 

753, 758 (Pa. Super. 2006) (citing Commonwealth v. Greer, 314 A.2d 

513, 515 (Pa. 1974)). “A proper Anders brief does not explain why the 

issues are frivolous and does not develop arguments against the appellant’s 

interest,” but rather, “articulates the issues in neutral form, cites relevant 

legal authorities, references appropriate portions in the record to aid our 

review, and concludes that, after a thorough review of the record, the appeal 

is wholly frivolous.” Santiago, 978 A.2d at 351-52, citing Anders, 386 U.S. 

at 738 (citations omitted). Here, counsel has done nothing more than 

present arguments that support affirmance of Appellant’s sentence. 

Therefore, upon review, we conclude that counsel has failed to satisfy the

technical requirements of Anders.

Accordingly, we deny counsel’s petition to withdraw and remand this 

case for further proceedings consistent with this memorandum. After review 

of the entire record, counsel shall file either an advocate’s brief or a new

petition to withdraw and Anders brief that fully comply with the 

requirements detailed above.
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Petition to withdraw denied. Case remanded with instructions. 

Jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/21