J-S30016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TYYA M. BARNES
Appellant No. 1918 MDA 2016
Appeal from the Judgment of Sentence June 12, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002483-2013
BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JULY 26, 2017
Appellant, Tyya M. Barnes, appeals from the judgment of sentence of
life imprisonment, imposed June 12, 2014, following a jury trial resulting in
his conviction for second degree murder, robbery, conspiracy, and firearms
not to be carried without a license.1 Additionally, Appellant’s counsel, Caleb
K. Shreve, Esquire, seeks to withdraw his representation of Appellant
pursuant to Anders v. California, 87 S. Ct. 1936 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We deny
counsel’s petition to withdraw and remand for the filing of a proper Anders
brief or a merits brief.
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1
See 18 Pa.C.S. §§ 2502(b), 3701(a)(1), 903, 6106(a)(1), respectively.
J-S30016-17
On March 4, 2013, Iliana Luciano drove Courtney Jackson, her
boyfriend, to meet with an acquaintance in Harrisburg, Pennsylvania. See
Notes of Testimony (N.T.), 6/9/14 – 6/12/14, 25, 29-31. Unbeknownst to
her, Mr. Jackson was meeting Layton Potter to sell him drugs. Id. at 29-31,
235-39. After approximately an hour and one-half of no contact, Ms.
Luciano attempted to call Mr. Jackson approximately fifteen times. Id. at
33-35.
Mr. Potter met Mr. Jackson twice that night, the last time around 8:00
p.m. Id. at 240-245. At that time, he observed Appellant and Shane
Holloway across the street. Id. at 248-49. Mr. Jackson indicated to Mr.
Potter that he was going to conduct a drug transaction with Appellant and
Mr. Holloway, but he first took Mr. Potter home. Id. at 250-51. Mr. Potter
advised him not to make the sale, and the two men parted. Id. at 260-62.
Between 8:00 p.m. and 8:30 p.m., a bystander discovered Mr. Jackson
lying face down in the alleyway near the corner store, covered in blood,
without a pulse, and foaming from the mouth. Id. at 175-76. Mr.
Jackson’s hands were outstretched, as if he had been running away. Id. at
176, 181-82. Near Mr. Jackson’s body, a cell phone rang repeatedly. Id. at
181-82. He had been shot eight times in the chest, arm, and back. Id. at
61-63, 81-91.
Police recovered fired shell casings from a .40 caliber and .25 caliber
gun. Id. at 448-49. Police officers also recovered Mr. Jackson’s cell phone;
the last call received and answered by Mr. Jackson, at 7:52 p.m., was from a
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number belonging to Appellant. Id. at 372-74, 391. Security footage from
the corner store showed Mr. Jackson meeting with Appellant and Mr.
Holloway, and walking off together. Id. at 396-99.
The day after the murder, Appellant told his godsister, Timothea
Anders, that he and Mr. Holloway shot Mr. Jackson. Id. at 435-36.
Appellant claimed that it was an accident, specifically, that Mr. Jackson had
grabbed Mr. Holloway and Mr. Holloway shot him. Id. at 436. On March 9,
2013, Ms. Anders gave a statement to the police implicating Appellant and
Mr. Holloway. Id. at 437-39..
In June 2014, a jury convicted Appellant of the above charges.
Appellant filed a post-sentence motion, which the court denied. Appellant
timely appealed, but his appeal was dismissed for failure to file a brief. See
Order, 5/27/15, at 1985 MDA 2014. Appellant filed a petition seeking relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and
his direct appeal rights were reinstated nunc pro tunc.
Appellant timely appealed, and the court issued an order directing
compliance with Pa.R.A.P. 1925(b). Counsel filed a statement of intent to
file an Anders/McClendon brief. The court did not issue an opinion.
On February 22, 2017, appellate counsel filed in this Court an Anders
brief and application to withdraw as counsel. The brief sets forth the sole
issue Appellant seeks to raise on appeal:
Did the [c]ourt err by allowing a magistrate judge initial in place
of a signature on Appellant’s criminal complaint?
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Anders Brief at 6 (unnecessary capitalization omitted).
When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
requirements established by the Pennsylvania Supreme Court in Santiago,
namely:
(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.
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 right 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 attention in
addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
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Anders and Santiago, only then may this Court “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant matter, Attorney Shreve’s Anders brief does not comply
with the above-stated requirements. The brief avers that Attorney Shreve
supplied Appellant with a copy of his Anders brief and a letter explaining the
rights enumerated in Nischan.2 Although the brief includes a summary of
the relevant procedural history, it does not include a factual summary, nor
does it refer to the portions of the record that could arguably support
Appellant’s claim.3 The sole issue Attorney Shreve sets forth states that a
magisterial district judge may use a facsimile signature in lieu of an original
signature. See Anders Brief at 9.
In his brief, Attorney Shreve does not conclude that this issue is
frivolous. Id.; see also Santiago, 978 A.2d at 361. Nor does he explain
why, if the issue was not frivolous, Appellant seeks to raise it. See Anders
Brief at 9. Attorney Shreve’s application to withdraw as counsel does
explain the reasons Appellant’s issue is frivolous, but similarly does not cite
____________________________________________
2
Appellant has not filed a response to counsel’s Anders brief.
3
The brief also repeatedly refers to Appellant as “she,” while Appellant is
male, giving rise to concerns that Attorney Shreve has not adequately
reviewed the record or spoken with Appellant.
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to the record to support this claim. See Application to Withdraw, 2/22/17,
at 1-3.
Thus, we remand for preparation of a proper advocate brief addressing
any meritorious issues counsel may discover or, if in counsel’s assessment
the appeal remains frivolous, an Anders compliant brief accompanied by a
petition to withdraw. The amended brief shall be submitted within forty-five
days.
In light of our disposition of counsel’s brief, we deny Appellant’s
applications for relief without prejudice, as he is still represented by counsel.
Pennsylvania courts do not permit hybrid representation on appeal. See
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993). In the event
that counsel files another Anders brief, Appellant is free to respond. See
Orellana, 86 A.3d at 879-80.
Appellant’s applications for relief and for extension of time are denied
without prejudice. Case remanded. Jurisdiction retained.
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Com. v. Barnes, T.
Combined Opinion