J-S22012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTONIO ADAM HOWELL

Appellant No. 1454 MDA 2015

Appeal from the Judgment of Sentence July 22, 2015

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0001676-2014

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED MARCH 04, 2016

Appellant, Antonio Adam Howell, appeals from the July 22, 2015 

aggregate judgment of sentence of 4 and 1/2 to 16 years’ imprisonment, 

imposed by the trial court after Appellant entered a negotiated guilty plea to 

21 criminal offenses, including two counts of simple assault, one count of 

aggravated assault, seven counts of robbery, and eleven counts of 

conspiracy.1 With this appeal, Appellant’s counsel has filed a petition to 

withdraw and an Anders2 brief, stating that the appeal is wholly frivolous. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2701, 2702, 3701, and 903, respectively.

2 Anders v. California, 386 U.S. 738 (1967).
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After careful review, we are constrained to deny counsel’s petition to 

withdraw and remand for further proceedings consistent with this Court’s 

recent decision in Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 

2015).

The trial court summarized the relevant factual and procedural history 

of this case as follows. 

On October 28, 2014, the Commonwealth 

charged [Appellant] with 22 counts, including two 

counts of Simple Assault, one count of Aggravated 

Assault, eight counts of Robbery and eleven counts 

of Conspiracy to commit the forgoing crimes. On 

April 29, 2015, the Commonwealth agreed to nolle

pros one of the robbery charges, and [Appellant] 

entered a guilty plea to all of the remaining counts, 

as charged. On July 22, 2015, [the trial court] 

imposed a sentence on [Appellant]. In doing so, 

[the trial court] complied with the parties’ plea 

agreement calling for a minimum of 54 months in 

prison. ...

[The trial court] found that most of the counts 

merged, and only sentenced [Appellant] on Count 1, 

[]; Count 2 []; Count 12 []; and Count 13[].

[The trial court] imposed identical sentences for 

Counts 1 and 12 of 54 months to 16 years in a state 

correctional facility. Likewise, the sentence on 

Counts 2 and 13 were identical—three to 12 years’ 

imprisonment. The sentences imposed on Counts 2, 

12 and 13 were to be served concurrently with the 

sentence imposed on Count 1, for an aggregate 

sentence of 54 months to 16 years. [The trial court] 

ordered [Appellant] to pay the costs of prosecution 

and a fine of $400. [The trial court] also ordered 

[Appellant] to make restitution ... and pay $1,462.17 

to the Crime Victims’ Compensation Fund. 

On August 18th, [2015,] [Appellant’s] counsel filed 

a Notice of Appeal.
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Trial Court Opinion, 9/30/15, at 2-4 (footnotes omitted).

On August 24, 2015, the trial court entered an order directing 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant 

complied on September 11, 2015. The record does not indicate that 

Appellant filed a response to the Anders brief.

In the Anders brief, counsel has raised the following issues for review.

1. Was the sentence so manifestly excessive as to 

constitute too severe a punishment?

2. Was the sentence imposed manifestly excessive 

because undue weight was assigned to the gravity 

of the offenses despite the existence of certain 

mitigating factors such as [Appellant’s] age and 

education?

3. Was the sentence imposed unreasonably 

disproportionate to co-defendant’s sentence?

Anders Brief at 3.

“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). Additionally, an Anders brief shall comply with the 

requirements set forth by our Supreme Court in Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).

[W]e hold that in 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 
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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. at 361. 

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 

2005), and its progeny, counsel seeking to withdraw on direct appeal must 

also meet the following obligations to his or her client.

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. 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 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). Further, 

“this Court must conduct an independent review of the record to discern if 
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there are any additional, non-frivolous issues overlooked by counsel.” 

Flowers, supra at 1250 (footnote and citation omitted).

In this appeal, we conclude that counsel’s Anders brief complies with 

the requirements of Santiago. First, counsel has provided a procedural and 

factual summary of the case with references to the record. Second, counsel 

advances relevant portions of the record that arguably support Appellant’s 

claims on appeal. Third, counsel concluded, “after a thorough review of the 

record and applicable law, undersigned appointed counsel for Appellant 

believes this appeal would be wholly frivolous.” Anders Brief at 16. Lastly, 

counsel has complied with the requirements set forth in Millisock. See

Letter from Counsel to Appellant, dated 11/24/15. As a result, we must 

conduct an independent review to ascertain if the appeal is indeed wholly 

frivolous.

Instantly, as in Flowers, the notes of testimony are absent from the 

certified record. The record is devoid of transcripts from the April 29, 2015 

guilty plea proceeding and the July 22, 2015 sentencing hearing.3 In 

Flowers, we stated as follows.

[W]ithout these notes of testimony, counsel could 

not have assessed whether any non-frivolous issues 

exist in connection with Flowers’ guilty plea 

proceeding. We therefore cannot conclude that 

____________________________________________

3

In the notice of appeal and motion to proceed in forma pauperis filed 

August 18, 2015, counsel copied “Michelle Brown, Court Stenographer,” but 

there is no indication that counsel otherwise requested the transcripts.
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Counsel has fulfilled his obligations pursuant to 

Anders. Thus, we 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 another Anders brief and petition 

seeking to withdraw following his review of a 

complete record.

Flowers, supra at 1250-1251.

Based on the foregoing, we adhere to the precedent of Flowers and 

deny counsel’s petition to withdraw, and remand the case for counsel to 

obtain the missing notes of testimony from both the guilty plea and 

sentencing proceedings, review the complete record, and to file an 

advocate’s brief or Anders brief and petition to withdraw.

Petition denied. Case remanded. Panel jurisdiction retained.