J-S33045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYHEEM MELTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3391 EDA 2019

Appeal from the Judgment of Sentence Entered November 23, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0006840-2015

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 03, 2020

Appellant Tyheem Melton appeals nunc pro tunc from the judgment of 

sentence entered in the Court of Common Pleas of Philadelphia County on 

November 23, 2016. Appellant’s counsel also has filed both a petition for 

leave to withdraw as counsel and an accompanying brief pursuant to Anders

v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). Following our review, we remand with instructions and

deny counsel’s petition to withdraw. 

The trial court set forth the procedural history and relevant facts herein 

as follows: 

On November 23, 2016, [Appellant] pled nolo contendere to 

two counts of murder in the third degree (18 Pa.C.S. § 2502(c)) 

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* Former Justice specially assigned to the Superior Court.
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and one count of possession of a firearm by prohibited person (18 

Pa.C.S. 6105).[1] The plea was entered pursuant to a plea 

agreement that provided that the [c]ourt's aggregate sentence 

would be no lower than 20 to 40 years[’] incarceration, but did 

not otherwise specify the sentence.[2] On that same day, the 

[c]ourt sentenced [Appellant] to two concurrent terms of 20 to 40 

years[’] incarceration for each murder charge and a consecutive 

term of 5 to 10 years incarceration for possession of a firearm, for

an aggregate sentence of 25 to 50 years[’] incarceration. 

[Appellant] was represented by Francis Carmen, Esquire, for his 

nolo contendere plea and sentencing. No post-sentence motions 

were filed and no direct appeal was taken.

On November 21, 2017, [Appellant] filed a timely pro se

petition under the Post Conviction Relief Act (“PCRA”) seeking

reinstatement of his rights to file post-sentence motions and an 

appeal. Gary S. Server, Esquire was appointed to represent 

[Appellant] on March 29, 2018. On May 29, 2018, Mr. Server filed 

an amended PCRA petition ("Amended Petition''). On August 2, 

2019, after reviewing the Amended Petition and the 

Commonwealth's Motion to Dismiss, the [c]ourt denied 

[Appellant’s] claim for reinstatement of his right to file a postsentence motion, but granted an evidentiary hearing on the claim 

regarding trial counsel's failure to file a direct appeal. On October 

25, 2019, following an evidentiary hearing, the [c]ourt granted 

[Appellant’s] PCRA Petition in part, and reinstated his direct 

appeal rights.

[Appellant] has now appealed from the judgment entered 

by the PCRA [c]ourt on the grounds that: -“the PCRA [c]ourt erred 

when it reinstated [Appellant’s] appellate rights nunc pro tunc

without also reinstating [Appellant’s] Post Sentence Motion right

to seek reconsideration of sentence where trial counsel was 

ineffective for failing to file for reconsideration when the 

[s]entencing [c]ourt had some discretion as to the length of the 

sentence and where there was a substantial question as to the 

sentence because it was unduly harsh and excessive under the 

circumstances and contrary to the norms underlying the 

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1 The remaining charges were dropped. See Written Nolo Contendere Plea 

Colloquy at 1.

2 Specifically, a handwritten notation on the nolo contendere plea colloquy 

form indicated that Appellant would be sentenced to “no less than 20 year 

minimum specific min and max to Be set By Judge.” See Written Nolo 

Contendere Plea Colloquy at 1. 
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Sentencing Code.” [Appellant’s] 1925(b) Statement at ¶1. For the 

reasons set forth below, [Appellant’s] claim is without merit and 

the judgment of sentence should be affirmed.

FACTUAL BACKGROUND

The factual basis proffered by the Commonwealth for 

defendant's nolo contendere plea established the following:

Around the time of the two homicides here at issue, 

[Appellant] frequented the Corral Bar on Market Street in 

Philadelphia, where he sold drugs from the back of the bar along 

with three associates. N.T. 11/23/2016 at 14, 19-20. Also selling 

drugs in that bar was Troy Wimberley, one of the decedents in 

this case, who did his drug business in the front of the bar. N.T.

11/23/2016 at 20. In the weeks leading up to the homicides, 

there were several confrontations between [Appellant] and 

Wimberley, one of which led to Wimberley to swing at 

[Appellant]. 11/23/2016 at 19-21. There were also several 

confrontations between Herbie one at [Appellant’s] associates, 

and Wimberley, including one during which Herbie fired a gun at

Wimberley, missing him. N. I. 11/23/2016 at 20.

On the evening of April 6, 2012, [Appellant] entered the bar, 

and during a confrontation with Wimberley, pulled out a handgun 

and fired at Wimberley multiple times. N.T. 11/12/2016 at 14, 

22-23. Several of the bullets struck Wimberley, killing him. N.T. 

11/23/2016 at 29. In addition, Crystal Shadding, who had the 

misfortune of standing behind Wimberley at the time of the 

attack, was struck by an errant bullet, killing her as well. N.T. 

11/23/2016 at 20, 33.

Following the shootings, [Appellant] fled Philadelphia and 

could not be located by the Fugitive Squad of the Homicide Unit 

for several years. N.T. 11123/2016 at 30-31. He was found in 

Tennessee in October of 2014 after being stopped for a traffic 

violation. Id. During that traffic stop, [Appellant] gave several 

false names. N.T. 11/23/2016 at 31. He was taken into custody 

and returned to Philadelphia.

[Appellant] has a prior conviction for the crime of 

aggravated assault from 1995, making, him ineligible to possess 

a firearm on the day of the murders. N.T. 11/23/2016 at 31-32.

Trial Court Opinion, filed 1/30/10, at 1-3 (footnote omitted). 
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On November 21, 2019, Appellant filed the instant appeal nunc pro 

tunc.

3

 In an Order filed the next day, the trial court directed Appellant to file 

a concise statement of the matters he intended to raise on appeal pursuant to 

Pa.R.A.P. 1925(b). On December 9, 2019, Appellant filed his concise 

statement. 

On March 24, 2020, appointed counsel filed a petition seeking to 

withdraw his representation and an Anders brief with this Court. Appellant 

filed no further submissions thereafter either pro se or through privatelyretained counsel. Before reviewing the merits of this appeal, we first must 

determine whether counsel has fulfilled the necessary procedural 

requirements for withdrawing as counsel. Commonwealth v. Miller, 715 

A.2d 1203, 1207 (Pa.Super. 1998).

To withdraw under Anders, court-appointed counsel must satisfy 

certain technical requirements. First, counsel must “petition the court for 

leave to withdraw stating that, after making a conscientious examination of 

the record, counsel has determined that the appeal would be frivolous.” 

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3 The term nunc pro tunc means “now for then.” See Black's Law Dictionary, 

at 1069, (Sixth Edition 1990). It is “a phrase applied to acts allowed to be 

done after the time when they should be done, with a retroactive effect, i.e.,

with the same effect as if regularly done.” Id. Thus, reinstatement of direct

appeal rights nunc pro tunc denotes that Appellant now has the same direct

appeal rights as he would have had in the beginning.
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Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which 

he or she:

(1) provide[s] a summary of the procedural history and facts, with 

citations to the record; (2) refer[s] to anything in the record that 

counsel believes arguably supports the appeal; (3) set[s] forth 

counsel’s conclusion that the appeal is frivolous; and (4) state[s] 

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, supra, 978 A.2d at 361. Finally, counsel must furnish a copy of 

the Anders brief to his or her client and advise the client “of [the client’s] 

right to retain new counsel, proceed pro se or raise any additional points 

worthy of this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896, 

898 (Pa.Super. 2007).

If counsel meets all of the above obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 

proceedings and make an independent judgment to decide whether the appeal 

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n. 5; see also 

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018) (en 

banc) (holding that the Anders procedure requires this Court to review “the 

entire record with consideration first of the issues raised by counsel. ... [T]his 

review does not require this Court to act as counsel or otherwise advocate on 

behalf of a party. Rather, it requires us only to conduct a review of the record 

to ascertain if[,] on its face, there are non-frivolous issues that counsel, 

intentionally or not, missed or misstated. We need not analyze those issues 
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of arguable merit; just identify them, deny the motion to withdraw, and order 

counsel to analyze them”). It is only when all of the procedural and 

substantive requirements are satisfied that counsel will be permitted to 

withdraw.

Herein, counsel contemporaneously filed his petition to withdraw as 

counsel and Anders brief. His brief and petition substantially comply with the 

technical requirements of Anders and Santiago. Moreover, counsel has 

provided this Court with a copy of the letter he sent to Appellant advising him 

of his right to retain new counsel, proceed further with his case pro se, and 

raise any points that he deems worthy of this Court’s attention. See 

Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore, 

we must review the entire record and analyze whether this appeal is, in fact, 

wholly frivolous. 

Our review begins with the claims Appellant raises in his Anders brief: 

THE GLOBAL QUESTION

Whether there is anything in the record that might arguably 

support the appeal that obviates a conclusion that the appeal is 

frivolous?

SPECIFIC AREAS OF INQUIRY

Whether the PCRA [c]ourt erred when it reinstated the Appellant's 

direct appeal rights nunc pro tunc without also reinstating the 

Appellant's right to seek reconsideration of sentence where trial 

counsel was ineffective for failing to file for reconsideration when 

the [s]entencing [c]ourt had some discretion as to the length of

the sentence and where there was a substantial question as to the 

sentence because it was unduly harsh and excessive under the 
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circumstances and contrary to the norms underlying the 

Sentencing Code?

Anders brief at 6. 

At the outset, we recognize that where the PCRA court reinstates direct 

appeal rights nunc pro tunc based on counsel's ineffectiveness, a defendant is 

not automatically entitled to reinstatement of his post-sentence rights nunc 

pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089 

(2009). Nevertheless, a PCRA court can reinstate a defendant's post-sentence 

rights nunc pro tunc if the defendant successfully pleads and proves he or she 

had been deprived of the right to file and litigate post-sentence motions as a 

result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at 1094 n.9 

(noting counsel may be deemed ineffective for failing to file post-sentence 

motions when claim requires preservation in trial court for purposes of 

appellate review). Compare Commonwealth v. Fransen, 986 A.2d 154 

(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of direct 

appeal rights nunc pro tunc is not entitled to reinstatement of post-sentence 

rights nunc pro tunc unless he requested that relief with PCRA court; 

appellant's claim that he was entitled to file post-sentence motions and to 

have benefit of evidentiary hearing warranted no relief where appellant did 

not plead or prove in PCRA petition that he was deprived of right to file postsentence motions).

Instantly, in Appellant's pro se PCRA petition and counseled amended 

PCRA petition, Appellant expressly sought reinstatement of his post-sentence 

motion rights nunc pro tunc. Specifically, Appellant argued trial counsel had 
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been ineffective for failing to present medical evidence procured by the 

Defender’s Association social worker in support of the argument he deserved 

a fully concurrent sentence. In addition, he claimed counsel ignored his timely 

requests to file both a petition for reconsideration of sentence and for 

withdrawal of his guilty plea. See Petition Under the Post Conviction Relief Act 

at 1-2. Although the Commonwealth opposed reinstating Appellant's postsentence motion rights nunc pro tunc, it indicated that it did not oppose an 

evidentiary hearing to determine whether he was entitled to the reinstatement 

of his direct appeal rights only. See Commonwealth’s Motion to Dismiss at 5-

6.

On October 25, 2019, a hearing was held on Appellant’s PCRA petition 

at which time Appellant testified that he had requested both personally and 

through a family member that counsel file an appeal for an “[a]djustment of 

sentence.” Appellant said when he asked counsel to file such documents in 

the courtroom immediately following the sentencing hearing, counsel replied 

“OK.” N.T., 10/25/19, at 7-11. Trial counsel testified he could not remember 

whether he had been asked to file a post-sentence motion or a direct appeal, 

and conceded he could be mistaken about whether Appellant had asked him 

to do so in the courtroom following sentencing. Id. at 17-20. 

At the conclusion of the hearing, the PCRA court noted that because 

Appellant testified under oath he had requested that counsel file a motion for 

reconsideration of sentence and a direct appeal, and counsel indicated he 
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could not recall whether Appellant, in fact, did so, the court would reinstate 

both Appellant’s right to file a post-sentence motion and a direct appeal. 

However, after further reasoning that Appellant had not pled any grounds for 

the reconsideration of his sentence in the Amended PCRA petition or shown 

prejudice therein, the PCRA court restored only Appellant’s direct appeal

rights. Following our review of the record, we find this was in error. 

Consistent with Liston and Fransen, supra, Appellant pled in both his 

pro se and counseled, Amended PCRA petition and indicated at the ensuing 

hearing that he had been deprived of the right to file and litigate post-sentence 

motions and a notice of appeal as a result of ineffective assistance of counsel. 

See Liston, supra; Fransen, supra. Appellant's PCRA petition and testimony 

made clear he wanted to challenge the validity of his pleas and the 

discretionary aspects of his sentence, both of which require preservation in 

post-sentence motions. See Commonwealth v. Lincoln, 72 A.3d 606 

(Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding 

defendant failed to preserve challenge to validity of guilty plea where he did 

not object during plea colloquy or file post-sentence motion to withdraw plea); 

Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied, 

621 Pa. 682, 76 A.3d 538 (2013) (explaining objections to discretionary 

aspects of sentence are waived if they are not raised at sentencing hearing or 

in timely filed post-sentence motion). See also Pa.R.Crim.P. 720(A)(1), 

(B)(1)(a)(i), (v) (stating post-sentence motion challenging validity of plea of 
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guilty or nolo contendere and/or motion to modify sentence shall be filed no 

later than 10 days after imposition of sentence). 

Consequently, the PCRA court’s reasoning to the contrary, restoration 

of Appellant's direct appeal rights nunc pro tunc without restoration of his

post-sentence motion rights nunc pro tunc, in this case, was essentially an 

empty gesture. In light of Appellant's stated intent to challenge the validity 

of his plea and the discretionary aspects of sentencing, the PCRA court should 

have restored Appellant's post-sentencing rights as well. See Liston, supra; 

Fransen, supra. See also Commonwealth v. Rivera, 154 A.3d 370 

(Pa.Super. 2017) (en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072 

(2017) (affirming PCRA court's reinstatement of appellant's post-sentence 

motion and direct appeal rights nunc pro tunc based on counsel's 

ineffectiveness for failing to consult with appellant about whether he wanted 

to file direct appeal; PCRA court properly restored Appellant's post-sentencing 

rights nunc pro tunc because one issue appellant wanted to raise, regarding 

withdrawal of his guilty plea, required preservation in trial court).

Accordingly, we remand the matter to the trial court to reinstate 

Appellant's post-sentence and direct appeal rights nunc pro tunc to provide 

Appellant with an opportunity to litigate in post-sentence motions those issues 

requiring preservation in the trial court. Given our disposition, we deny 

counsel's petition to withdraw.
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Case remanded with instructions. Counsel’s petition to withdraw denied. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/3/20