J-S77022-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY MCNEIL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3081 EDA 2017

Appeal from the Judgment of Sentence September 15, 2017

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

No(s): CP-51-CR-0308121-2006

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

MEMORANDUM BY DUBOW, J.: FILED APRIL 30, 2019

Appellant, Anthony McNeil, appeals from the Judgment of Sentence of 

six years of probation, imposed on September 15, 2017, following the 

revocation of his probation and resentencing on a single count of Corrupt 

Organizations.1 Appointed counsel, Victor Rauch, Esq., seeks to withdraw his 

representation of Appellant pursuant to Anders v. California, 386 U.S. 738 

(1967). We affirm the Judgment of Sentence and grant counsel’s Application 

to Withdraw as Counsel.

In June 2009, Appellant entered into a negotiated guilty plea to Corrupt 

Organizations. Commonwealth v. McNeil, No. 2494 EDA 2009, unpublished 

memorandum at 1-2 (Pa. Super. filed June 2, 2010), appeal denied, 4 A.3d 

672 (Pa. 2010). In exchange for his plea, the trial court sentenced Appellant 

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1 18 Pa.C.S. § 911.
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to two to four years of incarceration followed by ten years of reporting 

probation. N.T. Guilty Plea, 6/26/09, at 7. This amounted to a time-served 

sentence. Id.; McNeil, supra at 2.

Appellant did not report to his probation officer, and in November 2014, 

the court issued a warrant for his arrest. Revocation Ct. Op., 3/9/18, at 2. In 

August 2017, the Commonwealth apprehended Appellant. Id. In September 

2017, the revocation court revoked Appellant’s probation and, at the request 

of appointed counsel and with the agreement of Appellant, resentenced 

Appellant to six years of probation. Id.; N.T. Re-Sentencing, 9/15/17, at 3.

Although represented by the Public Defender, Appellant pro se appealed. 

Thereafter, appointed counsel filed a Statement indicating his intent to file an 

Anders brief. See Pa.R.A.P. 1925(c)(4). In response, the revocation court 

issued an opinion concluding there were no issues of arguable merit. 

Revocation Ct. Op. at 4.2

In this Court, counsel has filed an Anders Brief purporting to challenge 

discretionary aspects of Appellant’s sentence. Anders Br. at 3. In addition, 

counsel has filed an Application to Withdraw as Counsel.

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2 Appellant is not entitled to hybrid representation. Commonwealth v. Jette, 

23 A.3d 1032, 1036 (Pa. 2011). “When a counseled defendant files a pro se

document, it is noted on the docket and forwarded to counsel pursuant to 

Pa.R.Crim.P. 576(A)(4), but no further action is to be taken.” 

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016). On the 

other hand, a notice of appeal is distinguishable from other filings, as it 

protects a constitutional right. Id. at 624 (citing Commonwealth v. Ellis, 

626 A.2d 1137, 1138-41 (Pa. 1993); 210 Pa. Code § 65.24). Accordingly, 

“this Court is required to docket a pro se notice of appeal despite [an 

a]ppellant being represented by counsel[.]” Id. at 624.
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“When faced with a purported Anders brief, this Court may not review 

the merits of any possible underlying issues without first examining counsel’s 

request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. 

Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements 

established by the Pennsylvania Supreme Court in Commonwealth v. 

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

(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.

In addition, counsel 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) (quoting 

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).
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Counsel has complied with the requirements of Anders as articulated in 

Santiago. Namely, he includes a summary of the relevant factual and 

procedural history; he refers to the portions of the record that could arguably 

support Appellant’s claims; and he sets forth his conclusion that Appellant’s 

appeal is frivolous. He explains his reasoning and supports his rationale with 

citations to the record as well as pertinent legal authority. Counsel has 

supplied Appellant with a copy of his Anders Brief and a letter explaining the 

rights enumerated in Nischan. See Anders Br., Exh. C, (Letter, dated July 

23, 2018). Accordingly, counsel has complied with the technical requirements 

for withdrawal.

Having addressed counsel’s technical compliance with Anders, we will 

address the substantive issues raised by counsel. In addition, we must 

conduct “a simple review of the record to ascertain if there appear on its face 

to be arguably meritorious issues that counsel, intentionally or not, missed or 

misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 

2018) (en banc).3

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3

In March 2018, long before counsel notified Appellant that he had filed a 

Petition to Withdraw as Counsel and Anders Brief, Appellant pro se filed in 

this Court several documents. The Court noted these filings on the docket 

and forwarded them to counsel pursuant to Pa.R.A.P. 3304. See Jette Letter

(1), 3/20/18; Jette Letter (2), 3/20/18. In light of counsel’s Statement filed 

in the trial court, indicating his intent to file an Anders brief, we examined 

these filings to ascertain whether Appellant sought to raise additional issues 

relevant to his appeal. The filings include a (1) a letter from Appellant 

asserting his underlying conviction was in error, (2) a letter addressed to 

Appellant that is purportedly from an investigative service suggesting its 
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Appellant has raised the following issues on appeal: 

1. [Whether] the lower court err[ed] by not ordering a 

presentence report prior to sentencing[; and]

2. [Whether] [A]ppellant’s sentence for technical violations of 

probation [was] excessive[.]

Anders Br. at 3. Both of these issues implicate discretionary aspects of 

Appellant’s sentence. See Commonwealth v. Finnecy, 135 A.3d 1028, 

1030-31 (Pa. Super. 2016) (in context of revocation of probation proceedings, 

recognizing assertion that court erred in failing to order a presentence 

investigation report challenges discretionary aspects of sentence); 

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (in context 

of revocation of probation proceedings, recognizing assertion that sentence 

imposed was excessive in light of technical violations challenges discretionary 

aspects of sentence).

A challenge to discretionary aspects of a sentence is not reviewable as 

a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. 

Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction by, 

inter alia, preserving a challenge at sentencing or in a post-sentence motion. 

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interest in Appellant’s underlying conviction, (3) a copy of the revocation 

court’s opinion, upon which Appellant has scrawled myriad, nonsensical

comments and observations, (4) a document that appears to be a Petition for 

Collateral Relief, and (5) an undated and unsigned Petition for Expungement. 

These documents do not develop issues relevant to Appellant’s appeal. See

Commonwealth v. Cartrette, 83 A.3d 1030, 1036 (Pa. Super. 2013) (en 

banc) (“[A]n appeal challenging a revocation of probation proceeding cannot 

be used to attack the underlying conviction.”). Thus, we shall not consider 

them further.
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Id. “Objections to the discretionary aspects of a sentence are generally 

waived if they are not raised at the sentencing hearing or in a motion to modify 

the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. 

Super. 2013).

Here, Appellant did not preserve his issues at his sentencing hearing or 

thereafter in a post-sentence motion. Accordingly, he has waived any 

challenge to discretionary aspects of his sentence. See Dempster, supra;

Leatherby, supra; Griffin, supra.

Following our review of the issues raised by Appellant in counsel’s 

Anders Brief, we agree with counsel and conclude that this appeal is wholly 

frivolous. In addition, following an independent review of the record, we 

discern no arguably meritorious issues that warrant further consideration. 

See Dempster, supra at 272. Accordingly, we grant counsel’s Application 

to Withdraw as Counsel and affirm Appellant’s Judgment of Sentence.

Application to Withdraw as Counsel granted; Judgment of Sentence 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/19