J-S62033-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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JEFFREY TAYLOR,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 519 MDA 2017

Appeal from the Judgment of Sentence December 30, 2014

in the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0002712-2013

BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 11, 2017

Jeffrey Taylor (Appellant) appeals nunc pro tunc from the December 

30, 2014 judgment of sentence of three to six years of incarceration after a 

jury found him guilty of one count each of burglary and theft by unlawful 

taking. 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). Upon review, we deny counsel’s 

petition without prejudice and remand for further proceedings consistent 

with this memorandum.

Appellant was charged with several crimes as a result of a burglary 

incident that occurred in the early morning hours of July 27, 2013. 

Appellant was arrested and released on bail. A jury trial was held and on 
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November 4, 2014,1 and Appellant was found guilty of the aforementioned 

charges. On December 30, 2014, Appellant was sentenced as outlined 

above. Appellant did not file a direct appeal.

On January 13, 2016, Appellant pro se filed a timely petition pursuant 

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Attorney 

Jeffrey Yelen was appointed, and he filed a supplemental petition requesting 

the reinstatement of Appellant’s right to a direct appeal nunc pro tunc. The 

petition was granted, and Appellant timely filed a notice of appeal to this 

Court. Attorney Yelen then requested to withdraw as counsel, and the trial 

court permitted counsel to withdraw and appointed Attorney Matthew Kelly 

to represent Appellant on his direct appeal.

The trial court ordered that Appellant file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant filed a 

concise statement raising two issues concerning the ineffective assistance of 

trial counsel. The trial court filed an opinion holding that issues with respect 

to the ineffective assistance of counsel are not available for review on direct 

appeal and therefore Appellant’s judgment of sentence should be affirmed. 

Trial Court Opinion, 5/8/2017, at 1.

 

1 The delay between the filing of charges and the jury trial was due to the 

fact that Appellant absconded while on bail on at least one occasion.
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In this Court, counsel for Appellant filed both an Anders brief and a 

petition to withdraw as counsel.2 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 the judgment of sentence. However, if there are nonfrivolous 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:

[I]n 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 

 

2 The Commonwealth has elected not to file a brief.
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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.

Counsel has failed to satisfy these requirements. Although counsel 

states he examined the record and concluded that this appeal is frivolous, 

Petition to Withdraw As Counsel, 7/19/2017, at ¶ 3, our review of the record 

reveals the absence of the transcript of Appellant’s jury trial.3 “Without 

these notes of testimony, [c]ounsel could not have fulfilled his duty to 

review the record for any non-frivolous issues.” Commonwealth v. 

Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015). 

Moreover, on appeal, counsel has identified and preserved only two 

issues for review, both of which concern the ineffective assistance of trial 

counsel. It is not clear to this Court how counsel could have identified these 

issues without the benefit of the transcript from the jury trial. Additionally, 

as the trial court and counsel observe, these issues are not even ripe for 

review at this juncture. See Anders Brief at 5 (“It is established that review 

of claims of ineffective assistance of counsel be deferred to PCRA review.”); 

Trial Court Opinion, 5/8/2017, at 1 (same). After Appellant worked to have 

 

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In addition, counsel has not cited to this transcript in his Anders brief.
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his direct appeal rights reinstated, we cannot condone counsel’s complete 

failure to identify any issue that could arguably support appeal. 

Without the transcript of the jury trial, neither counsel nor this Court 

can satisfy its obligations under Anders and its progeny. See Flowers, 113 

A.3d at 1250 (holding that “this Court must conduct an independent review 

of the record to discern if there are any additional, non-frivolous issues 

overlooked by counsel”); Commonwealth v. Curry, 931 A.2d 700, 702 (Pa. 

Super. 2007) (“Failure to supply a complete record to this Court for 

independent review will render a request to withdraw technically 

inadequate.”). Accordingly, we deny counsel’s petition to withdraw and 

remand this case for further proceedings consistent with this memorandum. 

Upon remand, counsel must obtain the missing transcript and ensure 

its inclusion in the certified record. Flowers, 113 A.3d at 1251. 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. 

Motion for leave to withdraw denied. Case remanded with 

instructions. Panel jurisdiction retained.