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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA,

Appellee

v. LANCE ALLEN MOSER JR. ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANI A

No. 1409 EDA 2019
Appeal from the Judgment of Sentence Ente red July 2 5, 2018 i n the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP

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- CR

- 00 02719

- 2017 BE FORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J. * MEMORANDUM B Y 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

c ounsel 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 proceeding s consistent with this memorandum. The procedural background underlying this matter can be summarized as follows

. On May 18, 2017, Appellant ple d guilty to one count each of

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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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. O n August 6, 2017, while on probation, Appellant was arrested and charged with simple assault and institutional vandalism. On February 2, 2018, Appella nt pled guilty to both offenses . At the Gagnon II 1 hear ing , on July 25, 2018, Appellant stipulated to violating the terms of his proba tion. The court then revoked Appellant’s probation and sentenced Appellant to a term of five to twelve months of imprisonment.
A ppellant 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

cou rt granted Appellant’s petition to reinstat e Appellant’s direct appeal rights. O n April 29, 2019 , this timely

- filed appeal followed. In l ieu 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.

_________________ __________ ______ ____ _______ 1 “A Gagnon I hear ing 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 par ole/probation.” Commonwealth v. Stafford , 29 A.3d 800, 802 n.1 (Pa. Super. 2011) (citation omitte d); see also Gagnon v. Scarpelli , 411 U.S. 778 (1973).J

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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

cou rt 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

couns el 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 a ppeal 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 require ments 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 a nd 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. 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.J

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[I]n th e 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 suppo rts 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)

. C ounsel 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 challeng e to the discretionary aspects of Appellant’s sentenc e, 2 but

c ounsel’s Anders brief does not refer to anything in the record that counsel believes arguably supports the appeal. Counsel merely presents arguments

_________________ __________ ______ ____ _______ 2 C ounsel 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. Z e i gler , 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 a s precluding review of whether Appellant’s issue is frivolous.” Zeigler , 112 A.3d at 661.J

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that promote affirmance of the trial court’s rulings by explain ing 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. ” Com monwealth 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 argument s that support affirmance of Appellant’s sentence. Therefore, u pon review, we conclude that counsel has failed to satisfy the technical requirement s 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.J

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Petition to withdraw denied. Ca se remanded with instructions.
J urisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/21/21