J-S67034-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: T.C., A MINOR

 

APPEAL OF: T.C.

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:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 1404 EDA 2018

Appeal from the Dispositional Order April 10, 2018

in the Court of Common Pleas of Delaware County

Juvenile Division at No(s): CP-23-JV-0000792-2017

BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 17, 2019

T.C. (Appellant) appeals from the dispositional order entered on April 

10, 2018, following his adjudication of delinquency for burglary and related 

offenses. Appellant’s counsel has filed a petition to withdraw and a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We remand with 

instructions.

On June 24, 2017, Officer Brady McHale responded to a call for a 

reported theft at a concession stand, known as the Snack Shack, located 

inside the facilities at a local ballpark in Radnor Township. N.T., 4/10/2018, 

at 9. Officer McHale investigated the bathroom adjacent to the Snack Shack 

and observed damage to a handrail and ceiling tile in the handicapped stall, 

as well as debris on the ground, indicating that someone had climbed 

through the ceiling in the bathroom to enter the Snack Shack. Id. at 9-11. 
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A surveillance camera located inside the Snack Shack recorded the theft.

1

 

Id. at 11. Upon watching the footage, Officer McHale immediately

recognized 15-year-old Appellant. Id. a 14-15. Specifically, he testified to 

his observations of the video recording as follows.

[Appellant] enters from the ceiling area, opens up his backpack, 

[opens a refrigerator], and takes some sodas, then proceed[s] 

over to [] boxes, which are a variety of candy and chips and 

typical concession-stand-type food, places them into the 

backpack, returns the backpack to an unknown person and/or 

persons [in the ceiling] ... and then returns back up with the 

assistance of a hand.

Id. at 13-14. As part of his investigation, Officer McHale executed a search 

warrant at Appellant’s home, recovering from within a pellet gun. Id. at 16. 

Based upon the foregoing, the Commonwealth filed a juvenile petition 

charging Appellant with burglary, receiving stolen property, theft by unlawful 

taking, criminal mischief, and unlawful possession of a pellet gun. At the 

adjudicatory hearing on April 10, 2018, the juvenile court heard testimony

from Officer McHale, Appellant, and an alibi witness, and viewed the Snack 

Shack surveillance video recording and photographs of the damage in the 

 

1 The video recording was not included as part of the certified record on 

appeal. See Commonwealth v. Bongiorno, 905 A.2d 998, 1000-01 (Pa. 

Super. 2006) (“[T]he ultimate responsibility of ensuring that the transmitted 

record is complete rests squarely upon the appellant and not upon the 

appellate courts.”). See also Commonwealth v. Kennedy, 151 A.3d 

1117, 1127 (Pa. Super. 2016) (finding claim waived where review of issue 

raised was dependent upon materials not included in the certified record). 

In light of our disposition, we direct counsel on remand to ensure that this 

video recording is included in the certified record.
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bathroom. At the conclusion of the hearing, the court found the testimony 

of Officer McHale credible, Appellant’s alibi defense incredible, and

determined that Appellant had committed the aforementioned delinquent

acts. Id. at 33. Additionally, at the recommendation of Juvenile Probation

and without objection from Appellant, the court found Appellant in need of 

treatment, supervision, and rehabilitation. See N.T., 4/10/2018, at 34-36. 

Therefore, the court issued a dispositional order that same day, placing 

Appellant on probation and scheduling a dispositional review hearing for 

October 3, 2018. Adjudicatory/Dispositional Review Order – Amended, 

4/10/2018.2

 

2 The Commonwealth argues that this order was not a final, appealable 

order, and therefore this appeal is premature. Commonwealth’s Brief at 1, 

6. “In juvenile proceedings, the final order from which a direct appeal may 

be taken is the order of disposition, entered after the juvenile is adjudicated 

delinquent.” Commonwealth v. S.F., 912 A.2d 887, 889 (Pa. Super. 2006) 

(unnecessary capitalization omitted). Before entering an adjudication of 

delinquency, “the Juvenile Act requires a juvenile court to find that a child 

has committed a delinquent act and that the child is in need of treatment, 

supervision, or rehabilitation.” Commonwealth v. M.W., 39 A.3d 958, 964 

(Pa. 2012) (emphasis in original). “If the court determines the juvenile is in 

need of treatment, supervision, or rehabilitation, the court shall enter an 

order adjudicating the juvenile delinquent and proceed in determining a 

proper disposition[.]” In Interest of N.C., 171 A.3d 275, 280–81 (Pa. 

Super. 2017) (quoting Pa.R.J.C.P. 409(2)(a)). Here, at the April 10, 2018 

hearing, the juvenile court found Appellant to have committed delinquent 

acts and determined that Appellant was in need of treatment, supervision, 

and rehabilitation. It then entered a disposition as discussed supra. Thus, 

the dispositional order was a final, appealable order entered after Appellant 

was adjudicated delinquent. Accordingly, this appeal is properly before us.
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This timely appeal followed.

3

 In this Court, Appellant’s counsel filed 

both an Anders brief and a petition to withdraw as counsel. 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 .... 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.

[I]n the Anders brief that accompanies court-appointed 

counsel’s petition to withdraw, counsel must: (1) provide a 

 

3 The juvenile court did not order Appellant to file a concise statement of 

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The 

juvenile court complied with Pa.R.A.P. 1925(a). 
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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. Additionally, counsel seeking to withdraw from 

an appeal in a juvenile delinquency proceeding must provide notice of that 

request to both the juvenile and the juvenile’s parents. See 

Commonwealth v. Heron, 674 A.2d 1138, 1140 (Pa. Super. 1996) (“We 

find the requirement of the Juvenile Act that notice be given to a juvenile 

and his/her parents applicable to Anders cases involving juveniles.”). 

Based upon our examination of counsel’s petition to withdraw and 

Anders brief, we conclude that counsel has failed to comply with the 

technical requirements set forth above. Specifically, counsel failed to 

provide notice to Appellant’s parents of counsel’s request to withdraw as 

counsel on appeal. See Application to Withdraw Appearance, 9/26/2018 

(providing certificate of service solely to Appellant and the Commonwealth). 

Additionally, the record is incomplete because counsel failed to ensure the 

inclusion of the video recording, which was essential evidence at trial, in the 

certified record. 

Accordingly, we remand. As in Heron, on remand, counsel “must 

notify both [A]ppellant and his parents of the request to withdraw, 
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[A]ppellant’s right to retain new counsel or proceed pro se, and his right to 

raise any points he deems worthy of consideration. Counsel is directed to 

file within thirty (30) days an amended petition for leave to withdraw 

complying in all respects with the requirements [set forth above].” 674 A.2d 

at 1140 (emphasis in original; citation omitted).

Remanded with instructions. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/17/19