J-S33035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GARY PALMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1108 EDA 2019

Appeal from the Judgment of Sentence Entered November 19, 2018

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

No(s): CP-51-CR-0204941-2006

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

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 24, 2020

Appellant, Gary Palmer, appeals from the November 19, 2018 judgment 

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

the trial court resentenced appellant to an aggregate term of incarceration of 

11 to 22 years, followed by 6 years’ probation, on multiple convictions of 

robbery, theft, assault, drug offenses and firearms violations. Appellant’s 

attorney, J. Matthew Wolfe, Esq., has filed a petition to withdraw, alleging that 

the appeal is frivolous, and an Anders brief pursuant to Anders v. 

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

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* Former Justice specially assigned to the Superior Court.
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A.2d 349 (Pa. 2009).1 After careful review, we grant counsel's petition to 

withdraw and affirm judgment of sentence.

The trial court set forth the following procedural history:

On May 29, 2007, at the conclusion of his jury trial before the 

Honorable Earl W. Trent, Defendant [hereinafter “Appellant”] was 

found guilty on numerous related charges of Robbery, Theft, 

Assault, Drug [offenses,] and Firearms violations. On August 2, 

2007, Judge Trent sentenced Appellant to an aggregate period of 

confinement of 11 to 22 years followed by 6 years’ probation. 

Appellant did not file post sentence motions.

On August 31, 2007, Appellant timely filed a direct appeal to the 

Superior Court. . . . By order dated May 14, 2008, Appellant’s 

appeal was dismissed for “failure to file brief.” [Appellant filed a 

pro se petition pursuant to the Post Conviction Relief Act seeking 

reinstatement of his direct appeal rights. On November 30, 2010, 

[the PCRA court] reinstated his direct appeal rights. On May 12, 

2010, Appellant timely filed a direct appeal to the Superior Court[, 

which affirmed judgment of sentence after finding Appellant had 

waived his claims. Appellant filed a petition for allowance of 

appeal with the Supreme Court of Pennsylvania, but his petition 

was denied on May 2, 2013].

On December 20, 2013, Appellant timely filed a pro se PCRA 

petition. On July 1, 2014, J. Matthew Wolfe, Esq. was appointed 

counsel to represent Appellant for the purposes of his PCRA 

petition. On February 3, 2016, the [PCRA court], after a hearing, 

entered an Order dismissing Appellant’s PCRA petition as being 

without merit.

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1

In Commonwealth v. Palmer, No. 1106 EDA 2019 (unpublished 

memorandum filed August 7, 2020), this panel denied counsel’s petition to 

withdraw and remanded with instructions directing counsel to prepare a new 

Anders brief or advocate’s brief demonstrating counsel’s review of the notes 

of testimony from Appellant’s November 19, 2018 sentencing hearing. 

Counsel, with his new filings, has followed our directive, thus enabling 

meaningful review of the present appeal.
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On March 30, 2016, Appellant timely filed a direct appeal to the 

Superior Court of Pennsylvania, . . . which, on finding Appellant’s 

mandatory minimum sentence illegal pursuant to Alleyne v. 

United States, 133 S.Ct. 2151, 2163 (2013), affirmed 

Appellant’s judgment of sentence in part, and remanded the 

matter back for resentencing. 

On November 19, 2018, the [trial court], after a hearing, 

[resentenced Appellant to a discretionary sentence of identical 

duration to the previous sentence, i.e., 11 to 22 years, followed 

by 6 years’ probation]. On November 22, 2018, Appellant filed a 

post sentence motion seeking reconsideration of his sentence, 

which the [trial court] denied, after a hearing, on March 19, 2019.

On April 17, 2019, Appellant timely filed the instant appeal to the 

Superior Court of Pennsylvania. On May 14, 2019, [the trial court 

issued an order upon Appellant to file a Concise Statement 

pursuant to Pa.R.A.P. 1925(b)]. On May 30, 2016, Appellant filed 

his [counseled] “Statement Pursuant to 1925(c)(4),” in which he 

stated:

“No errors are presented because after a review of the 

record, counsel has concluded that there are no nonfrivolous issues to raise on appeal and at the present 

time intends to file a brief pursuant to the procedures 

set forth in Anders v. California, 386 U.S. 738 (1967) 

and Commonwealth v. McClendon, 434 A.2d 11185 

(1981) and would file a motion to withdraw from the 

case at the time of the filing of such a brief.”

Trial Court Opinion, 8/22/19, at 1-3. 

Counsel thereafter filed an Anders brief and petition to withdraw with 

this Court, and the trial court filed its Pa.R.A.P. 1925(a) opinion. As noted 

supra, this Court initially denied counsel’s petition and remanded with 

instructions for preparation of a new Anders brief or an advocate’s brief. 

Appellant has complied by filing a new Anders brief. 

Preliminarily, we must address both the petition to withdraw alleging 

that the appeal is frivolous and the Anders brief filed by Attorney Wolfe. 
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A request by appointed counsel to withdraw pursuant to Anders

and Santiago gives rise to certain requirements and obligations, 

for both appointed counsel and this Court. Commonwealth v. 

Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

These requirements and the significant protection they 

provide to an Anders appellant arise because a criminal 

defendant has a constitutional right to a direct appeal and 

to counsel on that appeal. Commonwealth v. Woods, 

939 A.2d 896, 898 (Pa.Super. 2007). This Court has 

summarized these requirements as follows:

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 brief and petition to the appellant, advising 

the appellant of the right to retain new counsel, 

proceed pro se or raise additional points worthy of 

the Court's attention.

Woods, 939 A.2d at 898 (citations omitted).

There are also requirements as to the precise content of 

an Anders brief:

The Anders brief that accompanies courtappointed counsel's petition to withdraw ... must: 

(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, 
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and/or statutes on point that have led to the 

conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed counsel has 

met these obligations, it is then our responsibility “to make a full 

examination of the proceedings and make an independent 

judgment to decide whether the appeal is in fact wholly frivolous.” 

Id. at 1248. In so doing, we review not only the issues identified 

by appointed counsel in the Anders brief, but examine all of the 

proceedings to “make certain that appointed counsel has not 

overlooked the existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

With respect to briefing requirements, “[n]either Anders nor 

McClendon requires that counsel's brief provide an argument of any sort, let 

alone the type of argument that counsel develops in a merits brief. To repeat, 

what the brief must provide under Anders are references to anything in the 

record that might arguably support the appeal.” Santiago, 978 A.2d at 359, 

360. Once counsel has met his 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.

Here, Attorney Wolfe has met all of the above requirements. He 

petitioned the court for leave to withdraw and stated that after making a 

conscientious examination of the record he has determined the appeal to be 

frivolous. In his Anders brief, he sets forth a procedural history of the case 

and, thereafter, refers to the issue presented in Appellant’s post-sentence 

motion, which challenged Appellant’s new sentence as manifestly excessive. 
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In so doing, counsel “set forth [his] conclusion that the appeal is frivolous,” 

and stated his reasons for so concluding, pursuant to Santiago. 

Further, counsel “articulate[d] 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. Finally, counsel furnished a copy of this brief to 

Appellant, advising him that he had a right to retain new counsel or continue 

pro se. 

As counsel has met all procedural requirements, we will now review the 

issue identified in the Anders brief to determine if it is frivolous. Specifically, 

the issue contained in the Anders brief asserts that the sentence imposed is 

manifestly excessive and reflects the trial court’s abuse of sentencing 

discretion. “An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test[.]” 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). We 

therefore look to determine whether: (1) the appellant has filed a timely notice 

of appeal; (2) the issue was properly preserved at sentencing or in a motion 

to reconsider and modify sentence; (3) the appellant’s brief has a fatal defect; 

and (4) there is a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). See id.

In this case, Appellant has: (1) timely filed a notice of appeal, (2) 

preserved the instant issue in a post-sentence motion, and (3) filed a brief 
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without a fatal defect.2 We turn, then, to the next requirement: whether 

Appellant raised a substantial question meriting our discretionary review. 

In reviewing whether an issue raises a substantial question, this Court 

has recognized:

[t]he determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. A substantial 

question exists only when the appellant advances a colorable 

argument that the sentencing judge's actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the 

sentencing process.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)

(quotation marks and some citations omitted).

The record of Appellant’s November 19, 2018 sentencing hearing 

demonstrates it was the objective of the sentencing court, the 

Commonwealth, and defense counsel to ensure that Appellant’s new sentence 

would entail no further period of incarceration but would keep him under

supervision on parole, to be followed by a six year period of probation. 

After careful examination of the sentencing guidelines applicable to 

Appellant’s case, the court determined that even without consideration of the 

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2 Counsel did not provide a Pa.R.A.P. 2119(f) statement in his Anders brief. 

In cases where counsel files an Anders brief, this Court has reviewed the 

matter even absent a separate Pa.R.A.P. 2119(f) statement. 

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015). 

Accordingly, we do not consider this defect as precluding review of whether 

Appellant's issue is frivolous. Additionally, we note the Commonwealth did 

not object to this defect. See Commonwealth v. Stewart, 867 A.2d 589, 

592 (Pa. Super. 2005) (declining to find waiver of sentencing claim due to lack 

of Pa.R.A.P. 2119(f) statement where Commonwealth did not object). 
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invalidated mandatory minimum sentencing statute, the terms of the original 

sentence fell within the low-end of the standard guideline range. The court, 

therefore, imposed a new sentence identical to the terms of the original 

sentence, deeming it appropriate under the totality of circumstances. 

In the court’s Pa.R.A.P. 1925(a) opinion, it observes the decision was 

made at sentencing that such a sentence would best promote the goals of 

rehabilitating Appellant through his current period of parole and subsequent 

probation. The court also notes it contemplated the possibility that Appellant 

could be returned to custody during the initial administrative processing of 

Appellant’s new sentence and, thus, instructed counsel to seek the court’s 

immediate assistance should this occur:

On considering argument of counsel, the court concluded that 

Appellant’s original sentence was clearly within the guidelines and 

appropriate under the circumstances. It was also clear to the 

court that Appellant had started a new job and was a good 

candidate for rehabilitation. N.T., 11/19/18, at 7, 8. 

The court and the Commonwealth’s primary objective, at this 

point, was for Appellant to remain under supervision. N.T. at 10, 

11. Neither party expressed an objection to reimposing 

Appellant’s original sentence, but were concerned with the 

potential consequences that, in processing the new sentence, he 

would return to custody [at least for the time needed for 

administrative processing of his new sentence]. The court shared 

this concern in stating, “I don’t want him to go back to Camp Hill 

either....” N.T. at 10. In order to resolve this issue, on reimposing 

sentence, the court ordered that Appellant be released on 

immediate parole, instructing counsel, “Well, if they make noise 

and say they’re going to put him back in Camp Hill, you file 

something with the court, a temporary restraining order, or 

something with the court, to prevent them from doing it, and then 

we will make the parole board come in and explain why, or the 

parole officer, or somebody, to explain why he has to go back in, 
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in order to get back out, when there’s no question that he 

completed his minimum and was paroled, right?

Trial Court Opinion, 8/22/19, at 3-4.

Therefore, after examining the issue contained in the Anders brief, we 

agree with counsel's assessment that Appellant's challenge to his standard 

guideline range sentence is wholly frivolous. “Furthermore, after conducting 

a full examination of all the proceedings as required pursuant to Anders, we 

discern no non-frivolous issues to be raised on appeal.” Commonwealth v.

Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018). Accordingly, we affirm 

Appellant's judgment of sentence and grant counsel's petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2020

 

 
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