J. S30026/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MICHAEL A. RIVERA, : No. 2497 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, August 7, 2015,

in the Court of Common Pleas of Chester County

Criminal Division at No. CP-15-CR-0000031-2015

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 24, 2016

Michael Rivera appeals from the judgment of sentence entered by the 

Court of Common Pleas of Chester County on August 7, 2015, after he was 

found guilty in a waiver trial of resisting arrest.1

The record reflects that Attorney James Allen McMullen of the Chester 

County public defender’s office initially represented appellant. As a result of 

a conflict between Attorney McMullen and appellant, the trial court then 

appointed Attorney Edward J. Gallen to replace the public defender. 

Thereafter, appellant wished to proceed to trial pro se. Following a 

Grazier2colloquy that immediately preceded trial on August 3, 2015, the 

 

1 18 Pa.C.S.A. § 5104.

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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trial court directed Attorney Gallen to act as standby counsel while appellant 

tried his own case. Following appellant’s August 3, 2015 waiver trial, during 

which appellant did act pro se and Attorney Gallen did act as standby 

counsel, the trial court found appellant guilty of resisting arrest.

On August 7, 2015, the trial court entered an order allowing appellant 

to proceed with any post-sentence motions or direct appeal in forma 

pauperis. On August 11, 2015, appellant filed a pro se notice of appeal to 

this court. On August 14, 2015, the trial court appointed Attorney Gallen to 

represent appellant, entered an order permitting appellant to proceed 

in forma pauperis in connection with his direct appeal, and ordered 

appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). On August 25, 2015, Attorney Gallen filed 

the Rule 1925(b) statement on appellant’s behalf.

The record further reflects that on September 1, 2015, appellant filed 

a petition with the trial court requesting that Attorney Gallen be withdrawn 

from representing him. On September 4, 2015, appellant filed, pro se, his 

Rule 1925(b) statement. Attorney Gallen then requested, and was 

permitted, an enlargement of time to amend appellant’s Rule 1925(b) 

statement. On October 7, 2015, Attorney Gallen filed the amended 

Rule 1925(b) statement on appellant’s behalf. On October 22, 2015, the 

trial court entered an order appointing Attorney Albert Sardella to replace 

Attorney Gallen and represent appellant.
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Attorney Sardella filed a brief with this court on appellant’s behalf and 

raised the following issues:

I. THE EVIDENCE WAS INSUFFICIENT TO 

SUPPORT A CONVICTION OF RESISTING 

ARREST (18 PA. C.S.A. [§] 5104)[.]

II. THE GUILTY VERDICT AS TO RESISTING 

ARREST (18 PA. C.S.A. [§] 5104) WAS 

AGAINST THE GREAT WEIGHT OF EVIDENCE.

III. THE APPELLANT IS ENTITLED TO A NEW TRIAL 

AS THE COURT DEMONSTRATED ITS 

PREJUDICE AND [INABILITY] TO PRESIDE 

IMPARTIALLY BY STATING THE APPELLANT 

WAS ATTEMPTING TO DELAY HIS 

EXTRADITION[.]

IV. THE APPELLANT COMPLAINS THAT THE 

DISTRICT COURT ERRED IN FINDING THAT A 

PRIMA FACIE CASE WAS ESTABLISHED AT THE 

CONCLSUION [SIC] OF THE JANUARY 6, 2015, 

HEARING AS THE DISTRICT MAGISTRATE 

JUDGE WAS PREJUDICED AGAINST THE 

APPELLANT[.]

V. THE APPELLANT COMPLAINS THE COURT 

[ERRED] IN FINDING THAT A PRIMA FACIE 

CASE WAS ESTABLISHED AS TO THE CHARGES 

OF RESISITING [SIC] ARREST AND SIMPLE 

ASSAULT AS THE COMMONWEALTH OFFERED 

LITTLE OR NO EVIDENCE IN SUPPORT OF THE 

CHARGES, AND; THE APPELLANT’S DUE 

PROCESS WAS VIOLATED WHEN THE COURT 

PERMITTED THE ADDITION OF THE CHARGE 

OF POSSESSION OF AN INSTRUMENT OF 

CRIME PAST FORMAL ARRAIGNMENT[.]

VI. THE COURT ABUSED ITS DISCRETION WHEN 

IT FAILED TWICE TO ALLOW THE APPOINTED 

COUNSEL TO WITHDRAW DUE TO COUNSEL 

AND APPELLANT[’S] FAILURE TO AGREE ON A 

TRIAL STRATEGY, AND; APPOINTED COUNSEL 
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FAILED TO TEST [SIC] SUBJECT THE 

COMMONWEALTH’S CASE TO A MEANINGFUL 

ADVERSARIAL TEST, AND; APELLANT’S [SIC] 

COUNSEL FAILED TO PURSUE MERITED [SIC] 

CLAIMS[.]

Appellant’s brief at 3.

In the brief, Attorney Sardella advanced legal arguments on behalf of 

appellant with respect to Issues 1 and 2. Beginning with Issue 3, however, 

Attorney Sardella appears to be submitting something akin to an Anders

brief3 because he sets forth some reasoning to support his conclusion that 

Issues 3 through 6 lack merit. Attorney Sardella has not complied with the 

requirements of Anders.

4

 

3 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. 

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

4

“When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first examining counsel’s petition to 

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 

2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 

2007) (en banc) (citation omitted). 

In order for counsel to withdraw from an appeal 

pursuant to Anders, certain requirements must be 

met, and counsel 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
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We, therefore, find that the brief submitted by Attorney Sardella 

denies appellant his very basic and important right to assistance of 

competent counsel. Consequently, we will not dispose of appellant’s issues 

on the merits. Rather, we direct Attorney Sardella to file either a formal 

petition to withdraw and proper Anders brief or an advocate’s brief within 

30 days from the date this Memorandum is filed. If counsel chooses to file 

an Anders brief, he is further directed to supply appellant with a copy of 

said brief and petition to withdraw, together with a letter detailing 

appellant’s rights.

Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2016

 

(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.
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Id., quoting Santiago, 978 A.2d at 361.