J-S39022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

MARK A. GNACINSKI, JR. 

 Appellant No. 1768 WDA 2013 

Appeal from the Judgment of Sentence of October 4, 2013 

In the Court of Common Pleas of Erie County 

Criminal Division at No.: CP-25-CR-0001036-2012 

BEFORE: BENDER, P.J., WECHT, J., and PLATT, J.*

 

MEMORANDUM BY WECHT, J.: FILED JULY 31, 2014 

 Mark Gnacinski, Jr., appeals his October 4, 2013 judgment of 

sentence. He challenges the trial court’s refusal to instruct the jury 

regarding his entrapment defense, and he contests discretionary aspects of 

the sentence imposed upon him. Gnacinski’s attorney, Darrel J. Vandeveld, 

Esq., has filed a petition to withdraw as counsel, together with an 

“Anders/Santiago brief.”1

 We find that Mr. Vandeveld has satisfied the 

Anders/Santiago requirements and that Gnacinski has no meritorious 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

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

Santiago, 978 A.2d 349, 361 (Pa. 2009). 
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issues to pursue on appeal. Consequently, we grant Mr. Vandeveld’s petition 

to withdraw2

and affirm Gnacinski’s judgment of sentence.

 The procedural history,3 as set forth by Anders/Santiago counsel 

and as supported by the record, is as follows: 

On July 26, 2013, a jury found [Gnacinski] guilty of receiving 

stolen property, [18 Pa.C.S. § 3925]; the jury found [Gnacinski] 

not guilty of the second count alleged in the information, and the 

trial court subsequently declared a mistrial on the remaining four 

counts. The Commonwealth later declined to prosecute 

[Gnacinski] on the remaining counts, and on October 4, 2013, 

[the trial court] sentenced [Gnacinski] to a term of nine to 20 

months of incarceration, to be followed by 24 months of

probation.[4

] 

On October 10, 2013, [Gnacinski] filed a [counseled] motion to 

modify his sentence . . .; the principal claim he advanced in his 

motion was that his trial defense counsel was ineffective. The 

____________________________________________ 

2

 On July 14, 2014, during the pendency of this appeal, Emily Mosco 

Merski, Esq., an attorney in private practice, filed a petition to withdraw as 

counsel, citing the fact that Gnacinski presently is represented by the Erie 

County Public Defender, and contending that, consequently, Gnacinski will in 

no way be disadvantaged by her withdrawal. Mr. Vandeveld is among three 

assistant public defenders who have been involved in this matter. Wayne 

Johnson, Esq., filed the notice of appeal in this case. Later, after 

Mr. Vandeveld entered his appearance on Gnacinski’s behalf, Nicole Sloane, 

Esq., another assistant public defender, entered her appearance. Ms. Merski 

certainly is correct that Gnacinski is represented by the office of the Erie 

County Public Defender. Consequently, we can discern no basis to compel 

Ms. Merski to continue as, in effect, extra counsel for Gnacinski. 

Consequently, we grant Ms. Merski’s petition to withdraw as counsel for 

Gnacinski. 

 

3

 The underlying factual background is immaterial to our disposition. 

4

 The sentencing order authorized work release. 
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trial court denied the motion without comment the following day. 

On November 1, 2013, [Gnacinski] filed the instant appeal. 

On November 20, 2013, trial defense counsel for [Gnacinski], 

attorney Wayne Johnson, Jr., filed a statement of intent to file 

an [Anders/Santiago] brief,[5

] noting that [Gnacinski’s] 

primary claim of error involved allegations of ineffectiveness in 

the conduct of [Gnacinski’s] defense. . . . Mr. Johnson also 

averred that he had undertaken the requisite review of 

[Gnacinski’s] claims and the case record, and found there to be 

no non-frivolous issues. Likewise, the undersigned [i.e., 

Mr. Vandeveld] has undertaken an exhaustive review of the 

documents that exist in this case, the potential issues that might 

have been presented for appeal, considered conscientiously and 

comprehensively the facts and the law applicable to [this case], 

and has concluded in the best exercise of his professional 

judgment[] that the issues raised by [Gnacinski] sound more 

properly in collateral claims of ineffective assistance of counsel, 

and has therefore elected to follow the [Anders/Santiago] 

procedure as well. 

Brief for Gnacinski at 8-9.

 Consistently with the above account, Mr. Vandeveld presents and 

discusses the following issues for our consideration: 

1. Whether the trial court erred in refusing to instruct the 

jury that the affirmative defense of entrapment applied to the 

sole count for which the jury convicted [Gnacinski], Receiving 

Stolen Property . . . ? 

2. Whether the trial court erred in denying [Gnacinski’s]

request to allow [him] to remain in Erie County Prison or release 

him for some indefinite period for medical treatment? 

____________________________________________ 

5

 Because trial counsel filed a statement signaling his intent to proceed 

under Anders and Santiago in lieu of a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), the trial court did 

not file a Rule 1925(a) opinion. 
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Brief for Gnacinski at 7. 

As noted, Mr. Vandeveld has filed an Anders/Santiago brief and a 

corresponding petition to withdraw as counsel, asserting that Gnacinski has 

no non-frivolous issues to pursue on direct appeal. This Court first must 

pass upon counsel’s petition to withdraw before reviewing the merits of the 

any potential issues that Gnacinski might present on appeal. 

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en 

banc). Prior to withdrawing as counsel under Anders, counsel must file a 

brief that meets the requirements established by our Supreme Court in 

Santiago. Pursuant thereto, the brief must provide the following 

information: 

(1) a summary of the procedural history and facts, with 

citations to the record; 

(2) reference to anything in the record that counsel believes 

arguably supports the appeal; 

(3) counsel’s conclusion that the appeal is frivolous; and

(4) 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 also must provide a copy of the Anders brief to his client. 

Attending the brief must be a letter that advises the client of his rights 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 
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attention in addition to the points raised by counsel in the Anders brief.” 

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see 

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). Finally, 

to facilitate our review of counsel’s satisfaction of his obligations, he must 

attach to his petition to withdraw the letter he transmitted to his client. See 

Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). 

 Our review of Mr. Vandeveld’s petition to withdraw and the 

accompanying brief demonstrates that he has complied with the 

Anders/Santiago requirements. Counsel has provided a procedural history 

detailing the events relevant to this appeal. Brief for Gnacinski at 8-9. 

Mr. Vandeveld has set forth two issues for consideration, and evaluated 

those issues’ respective justiciability and merit. Id. at 10-12. Furthermore, 

Mr. Vandeveld has addressed the requirements of Pa.R.A.P. 2119(f) relative 

to the sentencing issue, thus recognizing that Gnacinski must establish a 

substantial question regarding the challenged discretionary aspect of his 

sentence in order to obtain review of the merits of that issue. Id. at 9-10. 

Finally, after analyzing each issue on its own terms, Mr. Vandeveld has 

provided a separate section, entitled “Santiago argument,” wherein he 

details his reasons for determining that both of the above-stated issues are 

frivolous. Id. at 13-14. Mr. Vandeveld also has sent Gnacinski a letter 

informing him that he has identified no meritorious issues to pursue on 

appeal and has filed an application to withdraw from Gnacinski’s 

representation, and that Gnacinski may find new counsel or proceed pro se. 
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Mr. Vandeveld has attached the letter to his petition to withdraw, as required 

by Millisock, supra. See Petition for Leave to Withdraw as Counsel, 

3/28/2014, attachment (letter dated 3/27/2014). Accordingly, counsel has 

complied with Anders/Santiago’s technical requirements. 

 In response to Mr. Vandeveld’s brief and petition, Gnacinski has filed a 

pro se “Brief for Appellant” (hereinafter “Pro Se Brief for Gnacinski”), 

wherein he presses the entrapment issue that Mr. Vandeveld deemed to be 

frivolous. He presents the issue in two questions: 

1. Whether the trial court erred in letting the decision go to 

the jury instead of ruling Entrapment as a matter of law? 

2. Whether the trial court erred in refusing to instruct the 

jury that the affirmative defense of Entrapment applied to the 

count for which the jury convicted [Gnacinski], Receiving Stolen 

Property . . . . 

Pro Se Brief for Gnacinski at 6. However, his arguments in support of these 

issues is conclusory. See id. at 8-9.

 Having passed upon the procedural requirements under Anders and 

Santiago, we now must conduct an independent review of the record to 

determine whether, as Mr. Vandeveld claims, this appeal is wholly frivolous, 

or if there are meritorious issues for Gnacinski to pursue before this Court. 

Santiago, 978 A.2d at 355 (quoting Anders, 386 U.S. at 744) (“[T]he 

court – not counsel – then proceeds, after a full examination of all the 

proceedings, to decide whether the case is wholly frivolous. If it so finds it 
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may grant counsel’s request to withdraw . . . .”). We begin with the issues 

presented by Mr. Vandeveld. 

 With regard to all entrapment issues, Mr. Vandeveld provides the 

following analysis: 

As to the trial court’s refusal to instruct the jury, both initially 

and during deliberations, that the affirmative defense of 

entrapment applies to receiving stolen property charges . . .,

trial defense counsel failed to object to the court’s initial refusal 

to give the instruction and did not object when the trial court 

expressly stated its intention to instruct the jury in response to 

the jury’s inquiry during deliberations that the entrapment 

defense did not apply to receiving stolen property. The claim on 

appeal was thus waived. 

Brief for Gnacinski at 13 (citing Commonwealth v. Hodge, 411 A.2d 503, 

506 n.8 (Pa. Super. 1979)) (citations to the record omitted) (“[F]ailure to

object to the [jury] instructions at trial constitute a waiver of that claim.”).

 In point of fact, the trial court charged the jury regarding entrapment, 

but expressly indicated to the jury that the defense of entrapment would not 

apply to the charge of receiving stolen property, the only charge of which 

Gnacinski ultimately was convicted. Notes of Testimony—Afternoon Session, 

7/24/2013, at 101-05. Gnacinski raised no contemporaneous objection. 

During deliberations, the jury asked the court the following question: “If we 

consider entrapment, do we not consider any other charge, or can we pick 

and choose the charges.” Notes of Testimony, 7/25/2013, at 2. In a 

discussion with counsel, the trial court indicated that it would respond as 

follows: 
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[E]ntrapment, if established by a preponderance of the evidence, 

is a defense to all the charges except the receiving stolen 

property charge. 

Now, I mentioned that to counsel earlier and I want to explain 

my answer there. Receiving stolen property is a continuing 

offense. It does not appear that even if they found entrapment 

that would have anything to do with the receiving stolen 

property.[6

] But I do believe it would be applicable; that is, 

entrapment, to the other charges. 

Id. at 2-3. Neither party objected to the trial court’s proposed answer. 

Although Gnacinski pursues this issue further in his pro se brief, he 

does not address Mr. Vandeveld’s conclusion that any challenge to the trial 

court’s failure to instruct the jury that entrapment applied to his charge of 

receiving stolen property was waived due to trial counsel’s failure to raise a 

contemporaneous objection to the jury instructions or the court’s answer to 

the jury’s mid-deliberation inquiry on the same topic.7

 Based upon our 

____________________________________________ 

6

 Our research has not disclosed any authority to this effect. However, 

because we agree with counsel that Gnacinski failed to preserve the issue at 

trial, whether such a principle applies (or should apply) under Pennsylvania 

law is immaterial. 

7

 Gnacinski appears to present the issue that the trial court should have 

directed his acquittal of all charges as a matter of law, based upon his 

entrapment defense. Gnacinski aptly cites Commonwealth v. Medley, 725 

A.2d 1225 (Pa. Super. 1999), for the proposition that the court may direct a 

verdict of acquittal based upon entrapment when there is no dispute as to 

the operative facts relating to the defense, and the undisputed evidence 

points only to the conclusion that entrapment should be found as a matter of 

law. See Pro se Brief for Gnacinski at 8-9; see also Medley, 725 A.2d at 

1227. However, in applying Medley to the instant case, Gnacinski offers 

only the bald assertion that “there was no dispute of the operative facts, and 

no reasonable jury could fail to find entrapment if properly instructed.” Pro 

se Brief for Gnacinski at 8-9. Absent a more developed argument supported 

(Footnote Continued Next Page) 
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review of the record, we agree that at no time did trial counsel preserve any 

such objection. Accordingly, we may not consider that unpreserved issue on 

direct appeal.8

 This leaves only the sentencing issue proposed by Mr. Vandeveld, 

which Gnacinski does not address in his pro se brief. Mr. Vandeveld 

suggested that Gnacinski might raise the argument that the trial court 

should have sentenced Gnacinski to probation rather than total confinement 

due to Gnacinski’s health problems, in effect a claim that the sentence was 

manifestly excessive under the circumstances of this case. 

A claim of manifest excessiveness implicates the discretionary aspects 

of Gnacinski’s sentence. Commonwealth v. Boyer, 856 A.2d 149, 151-52 

(Pa. Super. 2004). We review challenges to the discretionary aspects of 

sentence for an abuse of the trial court’s discretion.

Discretion is abused when the course pursued by the trial court 

represents not merely an error of judgment, but where the 

judgment is manifestly unreasonable or where the law is not 

(Footnote Continued) _______________________ 

by references to the record and on-point legal authority, we are constrained 

to find that this issue is waived. See Pa.R.A.P. 2119; Commonwealth v. 

Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008). 

8

 Our conclusion does not prejudice Gnacinski’s prerogative to present 

this issue at a later date under the auspices of the Post-Conviction Relief 

Act, 42 Pa.C.S. §§ 9541, et seq., as one implicating the constitutional 

effectiveness of trial counsel. However, ordinarily, and under these 

circumstances, we may not consider challenges to the effectiveness of 

counsel on direct appeal. See Commonwealth v. Padilla, 80 A.3d 1238, 

1272 (Pa. 2013). 
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applied or where the record shows that the action is a result of 

partiality, prejudice, bias or ill will. 

Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998) 

(citations, internal quotation marks, and brackets omitted). 

Challenges to the discretionary aspects of sentencing do not 

guarantee an appeal as of right. Commonwealth v. Sierra,

752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging 

the discretionary aspects of his sentence must invoke this 

Court’s jurisdiction by satisfying a four-part test: 

[W]e conduct a four-part analysis to determine: 

(1) whether appellant has filed a timely notice of appeal, 

see Pa.R.A.P. 902 and 903; (2) whether the issue was 

properly preserved at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; 

(3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 

2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under 

the Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

Commonwealth v. Evans, 901 A.2d 528, 533 

(Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006) 

(citations omitted). 

When appealing the discretionary aspects of a sentence, an 

appellant must invoke this Court’s jurisdiction by including in his 

brief a separate concise statement demonstrating a substantial 

question as to the appropriateness of the sentence under the 

Sentencing Code. Pa.R.A.P. 2119(f); Commonwealth v. 

Mouzon, 812 A.2d 617 (Pa. 2002). The concise statement must 

indicate “where the sentence falls in relation to the sentencing 

guidelines and what particular provision of the code it violates.” 

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. 

Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d 

721, 727 (Pa. Super.), appeal denied, 759 A.2d 920 (Pa. 2000)). 

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. Commonwealth v. 

Paul, 925 A.2d 825 (Pa. Super. 2007). 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 
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to the fundamental norms which underlie the sentencing 

process.” Sierra, supra at 912-13.

Commonwealth v. Prisk, 13 A.3d 526, 532-33 (Pa. Super. 2011) (citations 

modified; bracketed modifications in Prisk).

 Mr. Vandeveld duly has presented the issue in technical compliance 

with the above-stated standard. In his Rule 2119(f) statement, he presents 

what he understands to be Gnacinski’s sole argument: Gnacinski contends 

that the trial court abused its discretion by declining to release Gnacinski for 

medical treatment for tumors and hepatitis C. Brief for Gnacinski at 10. 

Mr. Vandeveld observes that this was the sole sentencing challenge 

presented by Gnacinski in his pro se motion to modify sentence. By way of 

providing more detail, the motion specifically averred that Gnacinski sought 

a sentencing modification “until further medical procedures are complete. 

[Gnacinski] had [a] large tumor removed from [his] back on October 7, 

2013[,] and needs [his] stitches removed [on] October 21, 2013[,] and 

another tumor removed at this time.” Motion for Sentence Modification, 

10/10/2013. Regarding Hepatitis C, Gnacinski averred that he was then 

“seeking medical advice from [a physician at] the Cleveland Clinic for this 

disease and is receiving treatment and medical procedures from Dr. Kang of 

Erie, [Pennsylvania,] for removal of multiple massive tumors throughout his 

body.” Id. Thus, Gnacinski “respectfully but vociferously demand[ed] a 

sentencing modification of home monitor or delayed sentencing until his 

medical treatments [are] complete.” Id.
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 In Commonwealth v. Ladamus, 896 A.2d 592 (Pa. Super. 2006), 

the defendant sought a reduction in his guideline-minimum sentence based 

upon his own medical condition and his status as the primary caregiver for 

his mother. We found that the defendant had failed to present a substantial 

question. First, we rejected as insufficient the defendant’s bald allegation of 

excessiveness, because the defendant failed to explain how his sentence 

violated a fundamental norm of the Sentencing Code. Id. at 596. We also 

held generally that the specific challenges raised – including the allegation 

that it was an abuse of discretion for the trial court not to reduce the 

defendant’s sentence due to his medical issues – simply did not present a 

substantial question. 

 We find that the same principle applies in the instant case. First, it 

appears that at least one of the specific concerns expressed by Gnacinski –

the removal of his stitches – has been mooted by the passage of time. 

Second, while it is beyond cavil that the Eighth Amendment to the United 

States Constitution requires that prisoners be provided adequate medical 

care, see Neely v. Dep’t of Corrs., 838 A.2d 16, 20 (Pa. Cmwlth. 2003), 

we are unaware of any authority entitling a defendant sentenced to total 

confinement to continue receiving medical treatment from the provider or 

providers of his choice. 

 In Commonwealth v. Dunlavey, 805 A.2d 562 (Pa. Super. 2002), 

we addressed a post-imprisonment motion for a modification of sentence 

from confinement to probation to facilitate treatment of a serious illness, as 
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then provided for by 61 P.S. § 81.9

 Section 81 provided that, upon an 

adequate showing of illness and necessity, a prisoner could be removed from 

a penal institution for purposes of obtaining medical care. We held that the 

statute applied only to inmates who become seriously ill while in prison. 

Dunlavey, 805 A.2d at 563-64. We further held that, in order to obtain 

relief, the inmate “must allege that it is necessary for [him] to leave prison 

because the prison is unable to provide adequate medical care.” Id. at 564. 

 Although Dunlavey differed from the instant case in its procedural 

posture and its factual circumstances, the principle remains clear that a 

convicted, sentenced, and incarcerated inmate is entitled only to adequate 

medical care, not the medical care of the prisoner’s choice. In the case sub 

judice, Gnacinski at no time alleged that institutional medical providers 

would be unable to meet his medical needs.10

 Consequently, we find that 

____________________________________________ 

9

 Section 81 since has been repealed and replaced. See Act of Aug. 11, 

2009, P.L. 147, No. 33, § 4 (effective Oct. 13, 2009). Although the revision 

materially altered the standard of proof by which a prisoner may establish a 

basis for removal for purposes of medical treatment, see Commonwealth 

v. Folk, 40 A.3d 169, 172 (Pa. Super. 2012), the distinction does not bear 

on our analysis in the context of this case. 

10 On July 14, 2014, during the pendency of this appeal, Gnacinski filed 

pro se a “Motion to Stay Proceedings.” Therein, along with various vague 

allegations of counsel’s ineffective representation – a topic best suited to the 

context of a petition for collateral relief under the PCRA, as explained 

supra – Gnacinski alleges that he “suffers from Hepatitis C and some form of 

cancer, and the D.O.C. will not provide treatment for either.” Motion to Stay 

Proceedings, 7/14/2014, at 1. As a general rule, this Court will not consider 

pro se filings from parties who are represented by counsel, a circumstance 

our Supreme Court has described as “hybrid representation.” 

(Footnote Continued Next Page) 
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Gnacinski failed to present a substantial question. See Ladamus, supra. 

Moreover, even assuming arguendo that he presented such a question, the 

record would not support a finding that the trial court abused its discretion in 

refusing to grant Gnacinski the sentencing modification he requested. 

 We have conducted an independent review of the trial record in this 

case and confirmed Mr. Vandeveld’s assessment: There are no non-frivolous 

issues that Gnacinski may raise on direct appeal. 

(Footnote Continued) _______________________ 

See Commonwealth v. Jette, 23 A.3d 1032, 1044-45 (Pa. 2011); 

Commonwealth v. Ellis, 626 A.2d 1137, 1140-41 (Pa. 1993). Ordinarily, 

the proper practice is to refer the pro se filing to counsel of record, and to 

take no further action on the pro se submission unless counsel forwards a 

motion. Jette, 23 A.3d at 1044. Furthermore, our Supreme Court has held 

that once a counseled brief has been filed, “any right to insist upon selfrepresentation has expired.” Id.

In the Anders/Santiago context, however, counsel constructively 

disclaims the obligation to advocate on behalf of his client. Notably, the 

Anders/Santiago procedure allows and indeed invites the appellant to file 

a pro se brief in opposition to counsel’s petition to withdraw and counsel’s 

conclusion that no non-frivolous appeal will lie. Accordingly, we will assume 

arguendo that we may review Gnacinski’s Motion to Stay Proceedings on its 

merits. Nonetheless, we find that this motion merely rehashes Gnacinski’s 

prior pro se allegations of inadequate medical care, which, taken as a whole, 

do not change our conclusion that no non-frivolous argument regarding 

sentencing excessiveness based upon an alleged failure of the prison system 

to provide for his medical needs will lie under the circumstances of this case. 

If, in fact, Gnacinski is being denied the care to which he is entitled, his 

complaint properly lies with the Department of Corrections. He should 

present the issue in due course to the appropriate administrative body or the 

Pennsylvania Commonwealth Court in the first instance. On the record 

before us, we may not grant the stay requested. Gnacinski’s “Motion to Stay 

Proceedings” hereby is denied.
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 Judgment of sentence affirmed. Darrel Vandeveld’s petition to 

withdraw as counsel granted. Emily Merski’s petition to withdraw as counsel 

granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/31/2014