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 appe als 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 publ ic 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 t rial pro se . Following a

Grazier 2 colloquy 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).J. S30026 /16

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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, durin g

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 o r 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 form a 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a petition with the trial court requesting that Attorney Gallen be withdrawn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. Attorn ey 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 ente red an order appointing Attorney Albert Sardella to replace

Attorney Gallen and represent appellant.J. S30026 /16

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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 CONVI CTION 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 A ND [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 ABUSE D 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 COUNSELJ. S30026 /16

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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,

Attorne y Sardella appears to be submitting something akin to an Anders

brief 3 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. Santi ago , 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), citi ng 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; andJ. S30026 /16

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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.J. S30026 /16

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