J-S93028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT FERST
Appellant No. 1007 EDA 2016
Appeal from the Judgment of Sentence dated March 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0605551-2002
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED MARCH 20, 2017
Appellant Vincent Ferst appeals from the judgment of sentence
imposed on March 21, 2013, following remand by this Court. See
Commonwealth v. Ferst, 184 EDA 2012 (Pa. Super., Dec. 21, 2012)
(unpublished mem.). With this appeal, Appellant’s counsel has filed a
petition to withdraw and an Anders1 brief, stating that the appeal is wholly
frivolous. For the reasons that follow, we deny counsel’s petition to
withdraw, without prejudice.
On March 17, 2003, a jury found Appellant guilty of six counts of
robbery, five counts of criminal conspiracy, two counts of aggravated
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*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
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assault, one count of possessing an instrument of crime, one count of
attempted robbery of a motor vehicle, and one count of robbery of a motor
vehicle. Commonwealth v. Ferst, 1577 EDA 2006 (Pa. Super., Aug. 10,
2007) (unpublished mem. at 6).2 He was sentenced to an aggregate term of
forty-four and one-half to ninety-four years’ imprisonment. Id. at 1.
Appellant filed a post-sentence motion on June 2, 2003, which was denied
by operation of law on September 26, 2003. Id. at 6.3
Appellant did not file a direct appeal, but on March 17, 2004, via trial
counsel, he filed a timely PCRA petition, seeking leave to appeal nunc pro
tunc. Ferst, 1577 EDA 2006, at 6. The petition was granted by the trial
court, but on January 7, 2005, this Court dismissed the reinstated appeal for
counsel’s failure to file a brief. Id. On January 28, 2005, Appellant filed
another timely PCRA petition, this time pro se, again seeking leave to appeal
nunc pro tunc. Id. at 6-7. The petition was again granted, counsel was
appointed, and this Court affirmed Appellant’s judgment of sentence on
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2
18 Pa.C.S. §§ 3701(a)(1), 903, 2702(a)(1), 907(a), 901, and 3702,
respectively. Appellant’s charges were spread among six Common Pleas
docket numbers. Only one docket number is referenced in the instant
appeal, but we recount the history of the full case for simplicity.
3
Appellant’s post-sentence motion was entitled Motion for Relief of Counsel
and Appointment of New Counsel. Mot., 6/2/03. It was denied by operation
of law pursuant to Pa.R.Crim.P. 720(B)(3)(a).
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August 10, 2007. Id. at 7, 11.4 The Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on December 20, 2007.
Appellant, acting pro se, filed a timely PCRA petition on December 18,
2008. Ferst, 184 EDA 2012, at 5.5 Counsel filed an amended petition on
January 6, 2011. Id.6 On November 18, 2011, the PCRA court granted the
petition in part, having determined that there was insufficient evidence to
sustain convictions on two counts of robbery and one count of criminal
conspiracy, and vacated the sentences for those offenses. Id. at 5 n.4.7
Appellant’s sentence was amended to forty and one-half to eighty-six years’
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4
The subject of Appellant’s first direct appeal was whether the trial court
erred in granting the Commonwealth’s motion to consolidate the charges
against Appellant. Ferst, 1577 EDA 2006, at 7. We found the danger of
confusion between the charges and the chance of undue prejudice by the
jury to be negligible, and held that the trial court did not abuse its discretion
in granting the motion.
5
After filing the petition, Appellant obtained appointed counsel, who filed a
“no-merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc), on August 7, 2009. Trial Ct. Op., 3/20/12, at 2.
Appellant was sent notices of the PCRA court’s intention to dismiss the
petition in October 2009 and January 2010, but the PCRA court never
dismissed the petition. Ferst, 184 EDA 2012, at 5.
6
Appellant’s PCRA petition challenged trial counsel’s ineffectiveness on
several bases: his absence during pretrial proceedings, his failure to request
severance from the co-defendant, his failure to challenge the sufficiency of
the evidence on some of the charges, his failure to object during sentencing
upon the court’s consideration of impermissible factors, and his failure to
challenge an unlawful mandatory sentence. Ferst, 184 EDA 2012, at 6.
7
The Commonwealth did not appeal this ruling.
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imprisonment. Id. The PCRA court dismissed the rest of the petition. Id. at
5.8
Appellant appealed the dismissal of his petition on December 19,
2011. On December 21, 2012, this Court found merit to Appellant’s
complaint that his trial counsel was ineffective by failing to appeal some of
the mandatory minimum sentences imposed on the conspiracy charges.
Ferst, 184 EDA 2012, at 17-18.9 We therefore affirmed in part, reversed in
part, and remanded for resentencing. Appellant was resentenced on
March 21, 2013. Order, 3/21/13.10 Appellant did not file a direct appeal.
On February 20, 2015, Appellant filed another PCRA petition, pro se,
requesting the right to appeal his new judgment of sentence nunc pro tunc.
PCRA Pet., 2/20/15, at 6, 8 (unpaginated). Appellant claimed that the PCRA
court failed to appoint counsel following resentencing, or, alternatively, that
if counsel was appointed, he or she was ineffective for failing to file an
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8
The court notified Appellant of its intention to dismiss pursuant to
Pa.R.Crim.P. 907 on September 8, 2011. Appellant did not respond. Trial Ct.
Op., 3/20/12, at 2.
9
In between Appellant’s original sentencing and our review, the
Pennsylvania Supreme Court had decided that the mandatory sentencing
enhancement of 42 Pa.C.S. § 9712(a) does not apply to an unarmed co-
conspirator. Ferst, 184 EDA 2012, at 19 (citing Commonwealth v.
Dickson, 918 A.2d 95 (Pa. 2007)).
10
Appellant’s sentences on counts 1 and 10 were each reduced from five to
ten years’ to four to eight years’ incarceration, to run concurrently with
Appellants other sentences. Order, 3/21/13.
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appeal per Appellant’s request. Pa.R.Crim.P. 907 Notice, 12/17/15, at 4.11
The PCRA court sent Appellant a Rule 907 notice on December 17, 2015,
stating that the petition was untimely. Id. at 5-7. On January 5, 2016, the
PCRA court received Appellant’s pro se response. Counsel was appointed,
and the PCRA petition was granted; Appellant’s appellate rights were once
again reinstated nunc pro tunc on March 1, 2016.12
On March 30, 2016, Appellant filed a notice of appeal. On March 31,
2016, Appellant was ordered to file a Rule 1925(b) statement of errors
complained of on appeal. In lieu of a 1925(b) statement, appointed counsel
filed a statement pursuant to Rule 1925(c)(4) of his intention to file an
Anders brief. Statement, 4/21/16. Accordingly, the trial court filed no
1925(a) opinion. Order, 6/10/16. Appellant’s counsel filed his brief with this
Court on July 25, 2016, in addition to his request for leave to withdraw as
counsel.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (internal citation omitted). In order for counsel to withdraw, he must
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11
Appellant’s petition did not identify which aspect of his sentence he had
wished to appeal.
12
The order granting Appellant’s petition and reinstating his direct appeal
rights does not appear in the certified record.
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meet the requirements for an Anders brief set forth by the Supreme Court
of Pennsylvania 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.
In addition to the filing of an Anders brief, counsel seeking to
withdraw on direct appeal must comply with the following:
Counsel must also 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted).
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.
2007) (en banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736
(Pa. Super. 2004)). Finally, “this Court must conduct an independent review
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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) (footnotes and citations omitted).
Because this Court assesses the merits of the case immediately
following, and in conjunction with, counsel’s request to withdraw, it is
important to inform an appellant of his right to proceed pro se and raise
additional points for our review before this Court examines counsel’s
request to withdraw and the merits of the case. Although a party may not
typically proceed pro se while represented by counsel (a situation we refer to
as “hybrid representation”), there is an exception if appellate counsel has
filed an Anders brief because that filing signifies that appellant is effectively
without counsel. See Commonwealth v. Baney, 860 A.2d 127, 129 (Pa.
Super. 2004), appeal denied, 877 A.2d 459 (Pa. 2005). “Thus, when
conducting an Anders review, this Court will consider not only the brief filed
by counsel but also any pro se appellate brief.” Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa. Super.), appeal denied, 936 A.2d 40 (Pa.
2007).13 Where an appellant has not been apprised of his right to proceed
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13
Nischan explains the proper procedure as follows:
If this Court receives a petition to withdraw and a brief, both
submitted in accord with Anders, and if we are satisfied that
counsel has complied with the three technical Anders
requirements, we will then undertake our own independent
examination of the issues raised in the Anders brief and in any
(Footnote Continued Next Page)
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pro se following the filing of an Anders brief, the notice is defective. See,
e.g., Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015)
(counsel incorrectly informed appellant that he was entitled to proceed pro
se or with private counsel if the Superior Court permitted his withdrawal;
defect was cured by a notice sent sua sponte by the Superior Court);
Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) (notice was
defective where counsel’s letter may have only informed appellant of his
right to “new counsel,” which would imply a right to different court-
appointed counsel, rather than a right to retain new counsel or to proceed
pro se).
We conclude that instant counsel’s Anders brief complied with the
requirements of Santiago. Counsel provided a procedural and factual
summary of the case. Anders Br., 7/25/16, at 8-9. The Anders brief states
that “the only possible issue for direct appeal would be the discretionary
aspect of the sentence,” and referred to the portion of the record where
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(Footnote Continued)
pro se brief to determine whether we agree with counsel's
assessment that the appeal before us is frivolous. If, after our
review, we determine that the appeal is frivolous, then we will
grant counsel's petition to withdraw and we will affirm the
judgment of sentence. However, if it appears that there are non-
frivolous issues, we will deny the petition to withdraw and
remand the case with directions that counsel file an advocate's
brief.
Nischan, 928 A.2d at 353-54 (citations omitted).
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Appellant was sentenced. Id. at 11-12.14 Counsel makes abundantly clear
that he believes any such claim would lack merit.15 Moreover, counsel
conveyed that Appellant communicated to him that Appellant “believes that
he needs to appeal every step of his case.” Id. at 11.
However, we find that counsel failed to provide proper notice. While
counsel sent a copy of the Anders brief to Appellant, and advised Appellant
in his letter of his “right to retain new counsel or to raise any additional
points that [he] deem[s] worthy of the Court’s attention,” he did not
specifically advise Appellant of his instant right to proceed with the appeal
pro se. See Letter, 7/25/16.16 This flaw renders counsel’s letter defective,
and we therefore decline to grant his petition to withdraw.
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14
However, no transcript of the sentencing proceeding which counsel
references is included in the certified record.
15
Counsel provides the following reasons: the sentences received were in
the lower half of the guidelines sentence range; the sentences run
concurrently, which is an improvement over the previous consecutive
sentence; the claim is waived because Appellant failed to preserve it at the
time of sentencing or in a post-sentence motion; an appeal regarding the
discretionary aspect of a sentence must raise a substantial question (citing
42 Pa.C.S. § 9781(b), Pa.R.A.P. 2119(f)). We do not assess the merits of
any potential issues before first assessing counsel’s request to withdraw.
Daniels, 999 A.2d at 593. We also caution that “[a] proper Anders brief
does not explain why the issues are frivolous and does not develop
arguments against the appellant’s interests.” Commonwealth v. Woods,
939 A.2d 896, 898 (Pa. Super. 2007).
16
The deficiency is not cured by counsel’s petition to withdraw, which
echoes the phrasing employed in his letter.
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Counsel is hereby instructed either to file an advocate's brief or to file
a brief and petition to withdraw that fully complies with all of the
requirements set forth by Anders and its progeny. If counsel chooses the
latter, counsel’s letter to Appellant shall provide, among other items, notice
of Appellant’s immediate right to proceed pro se. Counsel shall file either his
advocate brief or his Anders Brief and revised petition to withdraw within
thirty days of the date of this decision. If counsel files a revised petition to
withdraw and Anders brief, Appellant shall have thirty days from receipt of
the revised petition to file a pro se brief or a brief by newly retained private
counsel, if he so chooses. The Commonwealth will then have thirty days to
file a responsive brief. The trial court is also ordered to supplement the
certified record with the March 21, 2013 transcript of Appellant’s sentencing
within thirty days of the date of this decision.
Petition to withdraw as counsel denied. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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Com. v. Ferst, V.
Combined Opinion