J-S07029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC JARRELL MCLAURIN :
:
Appellant : No. 804 MDA 2018
Appeal from the Judgment of Sentence Entered May 2, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000650-2016
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 22, 2019
Dominic Jarrell McLaurin appeals from his judgment of sentence,
imposed on May 2, 2018, following a jury trial resulting in convictions for
possession with intent to deliver a controlled substance, possession of a
controlled substance, possession of drug paraphernalia, and criminal use of a
communications facility.1 In addition, appointed counsel, Matthew
Welickovitch, Esq., seeks to withdraw from his representation of McLaurin
pursuant to Anders v. California, 386 U.S. 738 (1967). We conclude that
Attorney Welickovitch’s Anders brief is deficient. Therefore, we deny
counsel’s petition to withdraw and direct counsel to file either a compliant
Anders brief or an advocate’s brief.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16), (32), (30), and 35 P.S. § 7512(a), respectively.
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We derive the following statement of facts and procedural history, briefly
summarized for background, from the trial court’s opinions. See Tr. Ct.
Suppression Op., 4/11/17; Tr. Ct. Pa.R.A.P. 1925(b) Op., 9/24/18. On
January 6, 2016, Troopers Tyson Havens and Edward Dammer of the
Pennsylvania State Police were on patrol in Williamsport when they
encountered McLaurin in a black Chevy Impala sedan in the parking lot of a
Nittany Minute Mart. McLaurin, along with another man, were rummaging
around in the vehicle that had both doors open. The troopers, surmising that
McLaurin and the other individual were looking for drugs, pulled into a parking
spot next to the Chevy Impala. When Trooper Havens approached the vehicle,
McLaurin was in the driver’s seat and the other individual was already inside
the convenience store. Trooper Havens questioned McLaurin regarding the
registration of the vehicle and whether he had “dropped a joint[.]” McLaurin
denied that accusation and instead asserted that he had dropped paperwork.
Trooper Havens also indicated that he smelled marijuana, but McLaurin
denied having any in the car. At this point, Trooper Dammer, who was
standing at the front passenger window, directed McLaurin to lower the
passenger window. After the window was lowered, Trooper Dammer also
stated that he smelled marijuana. Before he could inquire further, the troopers
noticed that the second individual, who had gone into the convenience store,
was attempting to briskly walk away. Trooper Dammer pursued the individual
but to no avail. Thereafter, Trooper Dammer returned to the scene, parking
directly behind the Chevy Impala.
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Trooper Havens continued to question McLaurin and request
identification, while Trooper Dammer reiterated that he smelled marijuana.
Trooper Dammer proceeded to lean into the passenger side of the vehicle, so
that his upper body was inside the car. It was from this position that Trooper
Dammer discovered eight packets of heroin in the front passenger door, but
no marijuana was found. The troopers removed McLaurin from the vehicle,
and searched and handcuffed him. Attendant to the search, they seized
$1,626.00 in cash and a cell phone. After obtaining a warrant, Trooper Havens
discovered incriminating information on the cell phone.
McLaurin was charged with the aforementioned offenses, and prior to
trial, he filed a pretrial motion seeking to suppress the heroin and cell phone
discovered in the car. The trial court denied McLaurin’s suppression motion,
determining that both troopers had probable cause to search McLaurin’s car.
McLaurin also filed a motion to preclude the admission of certain records from
prison “intake” forms regarding whether he had engaged in “street drug” use.
McLaurin’s arguments centered on hearsay and relevance contentions. The
trial court also denied this motion.
After a jury convicted McLaurin in February 2018, the trial court imposed
an aggregate sentence of three to ten years’ incarceration. The instant timely
appeal followed.2 In his court-ordered Pa.R.A.P. 1925(b) statement, McLaurin
sets forth two issues on appeal: 1) Whether the trial court erred by denying
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2We note that this appeal was vacated and reinstated, twice, by this Court
due to the failure of the defense to file a timely docketing statement.
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his suppression motion, and 2) Whether the trial court erred by admitting
certain evidence procured during his intake at the Lycoming County Prison.
The trial court issued a responsive Pa.R.A.P. 1925(a) opinion, which also
referred to the court’s earlier opinion issued in support of the court’s denial of
McLaurin’s suppression motion.
In this Court, Attorney Welickovitch has filed an Anders brief, raising a
single issue that McLaurin might seek to raise: “Whether the trial court’s
factual findings were supported by the record, and thus the trial court
misapplied the law and erred in denying McLaurin’s motion to suppress?” See
Welickovitch’s Anders Br. at 7.
“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 Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), 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,
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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, 880 (Pa.Super. 2014).
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate's brief on
appellant’s behalf). By contrast, if counsel’s petition and brief
satisfy Anders, we will then undertake our own review of the
appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous issues,
we will deny the petition and remand for the filing of an advocate’s
brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa.Super. 2007)
(citations omitted).
In the instant matter, Attorney Welickovitch has supplied McLaurin with
a copy of his Anders brief and a letter explaining the rights enumerated in
Nischan.3 However, Attorney Welickovitch’s Anders brief does not comply
with the above-stated requirements.
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3 McLaurin has not filed a response to counsel’s Anders brief.
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First, although he does provide the requisite summary of facts, counsel
fails to provide a single citation to the record. See Santiago, 978 A.2d at 361.
Moreover, Attorney Welickovitch fails to articulate why he believes that
McLaurin’s claims are frivolous. See id. Indeed, counsel’s Anders brief more
closely resembles an advocate’s brief by closely detailing McLaurin’s potential
suppression claim but failing to state counsel’s reasoning for concluding that
the issue is frivolous. See Welickovitch’s Anders brief at 14-18. Next, and
perhaps most critically, counsel fails to discuss McLaurin’s potential second
issue on appeal, regarding the admission of certain intake records, entirely.
Instead, this Court is left to surmise that counsel finds the potential second
issue wholly frivolous, without the requisite discussion and analysis by
counsel. This conjecture we decline to undertake. See Santiago, 978 A.2d at
361; Wrecks, 931 A.2d at 720–21.
In light of our foregoing analysis, we conclude that counsel’s brief fails
to meet the mandates of Anders, as further clarified in Santiago.
Accordingly, we deny Attorney Welickovitch’s petition to withdraw without
prejudice to re-file such a petition.
We remand this case and direct counsel to file, within sixty days of the
date of this memorandum, either an advocate’s brief or a proper Anders brief
and petition to withdraw. Thereafter, the Commonwealth shall have sixty days
to respond.
Petition to withdraw as counsel denied. Case remanded with
instructions. Jurisdiction retained.
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Com. v. McLaurin, D.
Combined Opinion