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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 judg ment of sentence. He challenges the trial court’s refusal to instr uct the jury regarding his entrapment defense, and he contests discreti onary aspects of the sentence imposed upon him. Gnacinski’s attorney, D arrel J. Vandeveld, Esq., has filed a petition to withdraw as counsel, toge ther with an

“ Anders/Santiago brief.” 1 We find that Mr. Vandeveld has satisfied the Anders/Santiago requirements and that Gnacinski has no meritorious

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* 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).J-S39022- 14

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issues to pursue on appeal. Consequently, we grant Mr. Vandeveld’s petition to withdraw 2 and affirm Gnacinski’s judgment of sentence. The procedural history, 3 as set forth by Anders/Santiago counse l 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 informa tion, and the trial court subsequently declared a mistrial on the rem aining four counts. The Commonwealth later declined to prosecute [Gnacinski] on the remaining counts, and on October 4, 2 013, [the trial court] sentenced [Gnacinski] to a term of nin e to 20 months of incarceration, to be followed by 24 months of probation.[ 4 ] On October 10, 2013, [Gnacinski] filed a [counseled] mot ion to modify his sentence . . .; the principal claim he advance d in his motion was that his trial defense counsel was ineffective. The

____________________________________________ 2 On July 14, 2014, during the pendency of this appea l, Emily Mosco Merski, Esq., an attorney in private practice, filed a petition to withdraw as counsel, citing the fact that Gnacinski presently is repre sented by the Erie County Public Defender, and contending that, consequent ly, Gnacinski will in no way be disadvantaged by her withdrawal. Mr. Vand eveld is among three assistant public defenders who have been involved in th is matter. Wayne Johnson, Esq., filed the notice of appeal in this case. Later, after Mr. Vandeveld entered his appearance on Gnacinski’s be half, Nicole Sloane, Esq., another assistant public defender, entered her a ppearance. 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 G nacinski. 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.J-S39022- 14

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trial court denied the motion without comment the fol lowing day. On November 1, 2013, [Gnacinski] filed the instant ap peal. On November 20, 2013, trial defense counsel for [Gnacin ski], attorney Wayne Johnson, Jr., filed a statement of int ent to file an [ Anders/Santia go ] brief,[ 5 ] noting that [Gnacinski’s] primary claim of error involved allegations of ineffe ctiveness 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 o f the documents that exist in this case, the potential issues tha t might have been presented for appeal, considered conscientiou sly and comprehensively the facts and the law applicable to [thi s case], and has concluded in the best exercise of his professional judgment[] that the issues raised by [Gnacinski] sound mo re 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 pr esents and discusses the following issues for our consideration:
1. Whether the trial court erred in refusing to instru ct the jury that the affirmative defense of entrapment appl ied to the sole count for which the jury convicted [Gnacinski], Re ceiving Stolen Property . . . ? 2. Whether the trial court erred in denying [Gnacinski’s] request to allow [him] to remain in Erie County Priso n or release him for some indefinite period for medical treatment ?

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5 Because trial counsel filed a statement signaling his in tent 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.J-S39022- 14

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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 review ing the merits of the any potential issues that Gnacinski might present on app eal. 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 Su preme Court in Santiago . Pursuant thereto, the brief must provide the follo wing information: (1) a summary of the procedural history and facts, with citations to the record; (2) reference to anything in the record that counsel believ es 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 t hat have led to the conclusion that the appeal is frivolo us. 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) proce ed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court’sJ-S39022- 14

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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 facilitat e our review of counsel’s satisfaction of his obligations, he must attach to his petition to withdraw the letter he tran smitted to his client. See Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005). Our review of Mr. Vandeveld’s petition to w ithdraw and the accompanying brief demonstrates that he has complied wi th the Anders/Santiago requirements. Counsel has provided a procedural hist ory 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 m ust establish a substantial question regarding the challenged discretiona ry aspect of his sentence in order to obtain review of the merits of th at issue. Id. at 9-10. Finally, after analyzing each issue on its own terms, Mr . Vandeveld has provided a sepa rate section, entitled “Santiago argument,” wherein he details his reasons for determining that both of the a bove-stated issues are frivolous. Id. at 13-14. Mr. Vandeveld also has sent Gnacinski a lett er informing him that he has identified no meritorious i ssues 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 .J-S39022- 14

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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). Accor dingly, counsel has complied with Anders/Santiago ’s technical requirements. In response to Mr. Vandeveld’s brief and petition, Gnacinski has fil ed a
pro se “Brief for Appellant” (hereinafter “ Pro Se Brief for Gnacinski”), wherein he presses the entrapment issue that Mr. Vande veld deemed to be frivolous. He presents the issue in two questions:
1. Whether the trial court erred in letting the decisio n go to the jury instead of ruling Entrapment as a matter of law? 2. Whether the trial court erred in refusing to instru ct the jury that the affirmative defense of Entrapment appl ied to the count for which the jury convicted [Gnacinski], Receiving Stolen Property . . . .

Pro Se Brief for Gnacinski at 6. However, his arguments in sup port 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 re cord to determine whether, as Mr. Vandeveld claims, this appe al 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 frivol ous. If it so finds itJ-S39022- 14

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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, bot h initially and during deliberations, that the affirmative defen se of entrapment applies to receiving stolen property charges

. . ., trial defense counsel failed to object to the court’s in itial refusal to give the instruction and did not object when the t rial court expressly stated its intention to instruct the jury in response to the jury’s inquiry during deliberations that the entr a pment defense did not apply to receiving stolen property. T he 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 t he [jury] instructions at trial constitute a waiver of that claim.”). In point of fact, the trial court charged the jury re garding entrapment, but expressly indicated to the jury that the defense of entrapment would not apply to the charge of receiving stolen property, th e only charge of which Gnacinski ultimately was convicted. Notes of Testimony

— Afternoon Session, 7/24/2013, at 101-05. Gnacinski raised no contemporan eous objection. During deliberations, the jury asked the court the fo llowing 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:J-S39022- 14

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[E]ntrapment, if established by a preponderance of th e evidence, is a defense to all the charges except the receiving stol en property charge. Now, I mentioned that to counsel earlier and I want t o explain my answer there. Receiving stolen property is a contin uing offense. It does not appear that even if they found entrapment that would have anything to do with the receiving sto len 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 tri al 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 ap plied to his charge of

re ceiving 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 ef fect. However, because we agree with counsel that Gnacinski failed to pr eserve 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 tha t 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 t he 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 a rgument supported (Footnote Continued Next Page)J-S39022- 14

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review of the record, we agree that at no time did t rial counsel preserve any such objection. Accordingly, we may not consider that u npreserved issue on direct appeal. 8 This leaves only the sentencing issue proposed by Mr. Van develd, 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 th at the sentence was manifestly excessive under the circumstances of this case. A claim of manifest excessiveness implicates the discretionar y aspects of Gnacinski’s sentence. Commonwealth v. Boyer , 856 A.2d 149, 151-52 (Pa. Super. 2004). We review challenges to the discret ionary 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 wher e the judgment is manifestly unreasonable or where the law is not

(Footnote Continued) _______________________ by references to the record and on-point legal authori ty, 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 t o present this issue at a later date under the auspices of the Po st-Conviction Relief Act, 42 Pa.C.S. §§ 9541, et seq. , as one implicating the constitutional effectiveness of trial counsel. However, ordinarily, an d under these circumstances, we may not consider challenges to the effecti veness of counsel on direct appeal. See Commonwealth v. Padilla , 80 A.3d 1238, 1272 (Pa. 2013).J-S39022- 14

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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 omit ted). Challenges to the discretionary aspects of sentencing do n ot 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 ap peal, 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 questi on that the sentence appealed from is not appropriate und er 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, a n appellant must invoke this Court’s jurisdiction by incl uding in his brief a separate concise statement demonstrating a substa ntial 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 sen tenci ng 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 quest ion must be evaluated on a case- by -case basis. Commonwealth v. Paul , 925 A.2d 825 (Pa. Super. 2007). A substantial questi on exists “only when the appellant advances a colorable argu ment that the se ntencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contraryJ-S39022- 14

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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 s ole argument: Gnacinski contends that the trial court abused its discretion by declining t o release Gnacinski for medical treatment for tumors and hepatitis C. Brief f or Gnacinski at 10. Mr. Vandeveld observes that this was the sole sentencing ch allenge presented by Gnacinski in his pro se motion to modify sentence. By way of providing more detail, the motion specifically averre d that Gnacinski sought a sentencing modification “until further medical procedu res are complete. [Gnacinski] had [a] large tumor removed from [his] back on October 7, 2013[,] and needs [his] stitches removed [on] October 2 1, 2013[,] and another tumor removed at this time.” Motion for Sen tence Modification, 10/10/2013. Regarding Hepatitis C, Gnacinski averred that he was then

“ seeking medical advice from [a physician at] the Clevel and Clinic for this disease and is receiving treatment and medical procedure s from Dr. Kang of Erie, [Pennsylvania,] for removal of multiple massiv e tumors throughout his body.” Id. Thus, Gnacinski “ respectfully but vociferously demand[ed] a sentencing modification of home monitor or delayed se ntencing until his medical treatments [are] complete.” Id.J-S39022- 14

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In Commonwealth v. Ladamus , 896 A.2d 592 (Pa. Super. 2006), the defendant sought a reduction in his guideline-min imum sentence based upon his own medical condition and his status as the prima ry caregiver for his mother. We found that the defendant had failed to present a substantial question. First, we rejected as insufficient the defend ant’s bald all egation of excessiveness, because the defendant failed to explain ho w 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 Amend ment to the United States Constitution requires that prisoners be provided adequate medica l
care, see Neely v. Dep’t of Corrs. , 838 A.2d 16, 20 (Pa. Cmwlth. 2003), we are unaware of any authority entitling a defenda nt sentenced to total confinement to continue receiving medical treatment fro m 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 modificati on of sentence from confinement to probation to facilitate treatment of a serious illness, asJ-S39022- 14

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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 ca re. 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 ord er to obtain relief, the inmate “must allege that it is necessary for [him] to leave prison because the prison is unable to provide adequate medica l care.” Id. at 564. Although Dunlavey differed from the instant case in its procedural posture and its factual circumstances, the principle remai ns 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 su b judice , Gnacinski at no time alleged that institutional medi cal 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 appea l, 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 “suffe rs 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 c ircumstance our Supreme Court has described as “hybrid representation .” (Footnote Continued Next Page)J-S39022- 14

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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 cou rt abused its discretion in refusing to grant Gnacinski the sentencing modification he requested. We have conducted an independent review of the trial record in thi s 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 t o insist upon self

rep resentation has expired.” Id. In the Anders/Santiago context, however, counsel constructively disclaims the obligation to advocate on behalf of his c lient. Notably, the Anders/Santiago procedure allows and indeed invites the appellant to f ile a pro se br ief in opposition to counsel’s petition to withdraw and counsel’s conclusion that no non-frivolous appeal will lie. Accord ingly, we will assume arguendo that we may review Gnacinski’s Motion to Stay Proceedin gs on its merits. Nonetheless, we find that th is 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 arg ument regarding sentencing excessiveness based upon an alleged failure of the prison system to provide for his medical needs will lie under the cir cumstances 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 Correct ions. He should present the issue in due course to the appropriate admin istrative body or the Pennsylvania Commonwealth Court in the first instance . On the record before us, we may not grant the stay requested. Gnac inski’s “Motion to Stay Proceedings” hereby is denied.J-S39022- 14

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Judgment of sentence affirmed. Darrel Vandeveld’s petition to withdraw as counsel granted. Emily Merski’s petition to withdr aw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/31/2014