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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GREGORY B. BARTUCCI
Appellant No. 1686 MDA 2015
Appeal from the Judgment of Sentence July 8, 2015
in the Court of Common Pleas of Lancaster County Criminal Division
at No(s): CP-36-CR-0001286-2014
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED JUNE 29, 2016
Appellant, Gregory B. Bartucci, appeals from the judgment of sentence
made final by the September 1, 2015 order, which vacated the sentence
imposed on count 2, theft by deception, entered in the Lancaster County
Court of Common Pleas. Appellant’s appellate counsel, MaryJean Glick,
Esquire, has filed a petition to withdraw representation pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981). We remand with instructions.
Following a jury trial, Appellant was found guilty of theft by unlawful
taking,1 theft by deception,2 and forgery.3 On July 8, 2015, Appellant was
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3921(a).
2
18 Pa.C.S. § 3922(a)(1).
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sentenced to 27 months to 7 years’ imprisonment for theft by unlawful
taking, 27 months to 7 years’ imprisonment for theft by deception and 12
months to 7 years’ imprisonment for forgery. N.T., 7/8/15, at 16. The
sentences were concurrent. Id. at 24. Appellant filed post-sentence
motions. On September 1, 2015, the court granted Appellant’s motion in
part, finding that theft by deception merged with theft by unlawful taking.
This timely appeal followed.
As a prefatory matter, we must examine whether counsel complied
with the requirements of Anders/McClendon as clarified by the
Pennsylvania Supreme Court in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
[W]e hold that in the Anders brief that accompanies
court-appointed counsel’s petition to withdraw, 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 (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.
Id. at 361 (emphasis added).
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
3
18 Pa.C.S. § 4101(a)(2).
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fact wholly frivolous.” 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.”
Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)
(citations omitted).
Counsel raised numerous issues on appeal. In some of the issues,
counsel did not articulate any controlling case law or statutes on point that
led to the conclusion that the appeal is frivolous. We remand for counsel to
comply with Santiago. Upon further review, if counsel finds a nonfrivolous
issue, an advocate’s brief may be filed.
We direct the Prothonotary to enter a new briefing schedule.
Case remanded with instructions. Panel jurisdiction retained.
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Com. v. Bartucci, G.
Combined Opinion