Com. v. Moser, L.

J-S01043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LANCE ALLEN MOSER JR., :
:
Appellant : No. 1409 EDA 2019

Appeal from the Judgment of Sentence Entered July 25, 2018
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002719-2017

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.: FILED MAY 4, 2021

Lance Allen Moser Jr. (“Appellant”) appeals nunc pro tunc from the

July 25, 2018 judgment of sentence of five to twelve months of

imprisonment, which the trial court imposed after revoking his probation.

Appellant’s counsel, Alfred Stirba IV, Esquire, has filed a petition to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm

Appellant’s judgment of sentence and grant counsel’s petition to withdraw.

On May 18, 2017, Appellant pled guilty at the underlying docket

number to one count each of disorderly conduct and presenting false

identification to a law enforcement officer and was sentenced to one year of

probation. On August 6, 2017, while on probation for the instant case,

Appellant was arrested and charged with robbery (serious bodily injury),

* Retired Senior Judge assigned to the Superior Court.
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robbery (threat of serious bodily injury), aggravated assault, and

institutional vandalism. On February 2, 2018, Appellant pled guilty to simple

assault and institutional vandalism. At the Gagnon II1 hearing, Appellant

stipulated that the convictions violated the terms of his probation. The court

revoked Appellant’s probation, and on July 25, 2018, it imposed an

aggregate term of five to twelve months of imprisonment. Appellant did not

appeal the judgment of sentence.

Acting pro se, Appellant filed an untimely motion to modify his

sentence and a petition for early parole, which were treated together as a

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. The PCRA court appointed Attorney Stirba, who filed an

amended PCRA petition seeking reinstatement of Appellant’s direct appeal

rights nunc pro tunc. The PCRA court granted Appellant’s petition to

reinstate Appellant’s direct appeal rights. On April 29, 2019, this timely-filed

appeal followed.

In lieu of a concise statement, Attorney Stirba filed a statement

indicating that he intended to file an Anders brief and seek to withdraw

from representation. See Pa.R.A.P. 1925(c)(4). Rather than filing an
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1 “A Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is
made, a Gagnon II hearing is conducted where the Commonwealth is
required to establish that the defendant did violate his parole/probation.”
Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa.Super. 2011)
(citation omitted), citing Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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opinion pursuant to Pa.R.A.P. 1925(a), the trial court filed an order

transmitting the record to this Court and asking this Court to dismiss

Appellant’s appeal and affirm his judgment of sentence.

In this Court, Attorney Stirba filed a petition to withdraw as counsel

and an Anders brief. On March 23, 2020, we denied counsel’s petition to

withdraw, as he failed to file a compliant Anders brief. We noted that

counsel appeared to raise a challenge to the discretionary aspects of

sentencing, but failed to include a Rule 2119(f) statement, and merely

presented “arguments that promote affirmance of the trial court’s rulings by

explaining how [Appellant’s] sentence is appropriate.” Commonwealth v.

Moser, ___ A.3d ___, No. 1409 EDA 2019, unpublished memorandum at 4-

5 (Pa.Super. filed March 23, 2020). Thus, we ordered counsel to file either

an advocate’s brief or compliant Anders brief. Id. (unpublished

memorandum at 5).

In a memorandum filed on February 3, 2021, after more than ten

months had passed, we again directed Attorney Stirba to file either an

advocate’s brief or compliant Anders brief within twenty days of the filing of

the memorandum, i.e., February 23, 2021. We also noted our extreme

displeasure with the excessive delay in this case and informed Attorney

Stirba that failure to comply with our directives would “result in this matter

being referred to the Disciplinary Board of the Supreme Court of

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Pennsylvania.” Commonwealth v. Moser, ___ A.3d ___, No. 1409 EDA

2019, unpublished memorandum at 2 (Pa.Super. filed February 3, 2021).

Despite this Court twice directing counsel to file an Anders brief and

setting forth a specific timeframe within which to comply, Attorney Stirba

neglected to file the instant Anders brief until eighteen days after the

allotted timeframe expired. Attorney Stirba did not request an extension or

acknowledge the lateness of his Anders brief. Such a delay is unacceptable

and inexcusable. As Attorney Stirba failed to comply in a timely manner

with our directives, we would be justified in referring this matter to the

Disciplinary Board of the Supreme Court of Pennsylvania. Nonetheless,

because counsel ultimately filed an Anders brief, albeit woefully late, we will

continue our review of this matter.

The following principles guide our review.

Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof . . . .

Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.

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

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petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted).

Our Supreme Court has clarified portions of the Anders procedure as

follows:

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.

Santiago, 978 A.2d at 361. If counsel has met these obligations, it is then

this Court’s duty to review the trial court proceedings to determine whether

there are any non-frivolous issues that the appellant could raise on appeal.

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.Super. 2018) (en

banc).

Based upon our examination of Attorney Stirba’s petition to withdraw

and Anders brief, we conclude that counsel has substantially complied with

the technical requirements set forth above. Counsel filed a petition with this

Court stating that after reviewing the record, he finds the appeal to be

wholly frivolous. Petition to Withdraw as Counsel, 9/4/2019 ¶ 8. In

conformance with Santiago, counsel’s brief includes a summary of the

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relevant case history and discusses the issues he believes might arguably

support Appellant’s appeal. See Anders brief at 4-14. Attorney Stirba sets

forth his conclusion that the appeal is frivolous and includes citation to

relevant authority. Id. Finally, Attorney Stirba has attached to his petition

to withdraw the letter he sent to Appellant, which enclosed counsel’s petition

and Anders brief. Counsel’s letter advised Appellant of his right to proceed

pro se or with private counsel and to raise any additional issues he deems

worthy of this Court’s consideration. See Wrecks, supra at 721; Petition to

Withdraw as Counsel Exhibit A, Letter to Appellant, 9/4/2019. Thus, we

proceed to an examination of the issues raised in the Anders brief to

discern if they are frivolous. See Dempster, supra at 272.

Attorney Stirba prefaces the Anders brief by indicating that Appellant

failed to inform him of any issues that Appellant would like to raise on

appeal. Anders brief at 3. Nonetheless, consistent with his professional

obligations, counsel sets forth three issues that he believes arguably support

an appeal: (1) the factual basis for the trial court’s revocation; (2) the

legality of Appellant’s sentence; and (3) the discretionary aspects of

Appellant’s sentence. Id. at 9-11.

We first consider whether there was a factual basis for the trial court

to revoke Appellant’s probation. This Court’s review of a sentence imposed

following the revocation of probation “is limited to determining the validity of

the probation revocation proceedings and the authority of the sentencing

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court to consider the same sentencing alternatives that it had at the time of

the initial sentencing.” Commonwealth v. Perreault, 930 A.2d 553, 557

(Pa.Super. 2007) (internal citation omitted). “The Commonwealth

establishes a probation violation meriting revocation when it shows, by a

preponderance of the evidence, that the probationer’s conduct violated the

terms and conditions of his probation, and that probation has proven an

ineffective rehabilitation tool incapable of deterring probationer from future

antisocial conduct.” Commonwealth v. Ahmad, 961 A.2d 884, 888

(Pa.Super. 2008).

Revocation of a probation sentence is a matter committed
to the sound discretion of the trial court and that court’s decision
will not be disturbed on appeal in the absence of an error of law
or an abuse of discretion. When assessing whether to revoke
probation, the trial court must balance the interests of society in
preventing future criminal conduct by the defendant against the
possibility of rehabilitating the defendant outside of prison. In
order to uphold a revocation of probation, the Commonwealth
must show by a preponderance of the evidence that a defendant
violated his probation.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014)

(quotation marks and citations omitted).

As previously noted, Appellant stipulated to the violations of his

probation alleged by the Commonwealth. N.T., 7/25/2018, at 3. Moreover,

at the Gagnon II hearing, the trial court emphasized that Appellant was

convicted of new crimes, which established the probation violation by a

preponderance of the evidence. Id. at 4; see Ahmad, supra at 888. Thus,

any challenge to the revocation of probation is meritless.

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Next, we consider whether Appellant’s sentence is illegal. Our

standard of review regarding an issue relating to the legality of a sentence is

de novo, and our scope of review is plenary. Commonwealth v. McKown,

79 A.3d 678, 691 (Pa.Super. 2013).

The revocation of probation places a defendant in the same position

that he was in at the time of his original sentencing. See Commonwealth

v. Wallace, 870 A.2d 838, 842-43 (Pa. 2005); see also 42 Pa.C.S.

§ 9771(b) (“Upon revocation the sentencing alternatives available to the

court shall be the same as were available at the time of initial sentencing.”).

While a resentencing court in a probation revocation proceeding does not

need to consult the sentencing guidelines, the sentence imposed must not

exceed the maximum term for which the defendant could be confined.

Commonwealth v. Crump, 995 A.2d 1280, 1285 (Pa.Super. 2010).

In this case, the trial court resentenced Appellant to an aggregate

term of five to twelve months of imprisonment. Both disorderly conduct and

false identification to a law enforcement officer are second-degree

misdemeanors, which carry a maximum sentence of two years of

imprisonment. 18 Pa.C.S. § 1104. As twelve months imprisonment does

not exceed the two-year statutory maximum on either count, Appellant’s

sentence is legal and any claim to the contrary is wholly frivolous.

Next, we review whether a discretionary aspects of sentencing claim

may arguably support Appellant’s appeal. An appellant is not entitled to the

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review of challenges to the discretionary aspects of a sentence as of right.

Rather, an appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction. We determine whether the appellant

has invoked our jurisdiction by considering the following four factors:

(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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(some citations omitted).

Here, Appellant timely filed a notice of appeal. However, our review of

the certified record reveals that Appellant did not properly preserve this

issue at sentencing or by timely filing a post-sentence motion. Accordingly,

Appellant has not preserved this issue for our review, and he is not entitled

to relief. See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa.Super.

2010) (stating that a defendant waives for appeal issues challenging the

discretionary aspects of his sentence where he does not raise them at

sentencing or in a post-sentence motion).

Finally, our independent review of the certified record reveals no non-

frivolous issues that Appellant could raise on appeal. See Dempster, supra

at 272. For all of the foregoing reasons, we grant Attorney Stirba’s petition

to withdraw and affirm Appellant’s judgment of sentence.

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Petition to withdraw granted. Judgment of sentence affirmed.

Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/04/2021

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