Com. v. Flores, 167 MDA 2006.

Citation921 A.2d 517
Decision Date02 April 2007
Docket NumberNo. 167 MDA 2006.,167 MDA 2006.
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. David FLORES, Appellant.
CourtSuperior Court of Pennsylvania

Anne E. Gingrich, Harrisburg, for appellant.

James P. Barker, Assistant District Attorney, Harrisburg, for Com., appellee.

BEFORE: LALLY-GREEN, McCAFFERY and COLVILLE*, JJ.

OPINION BY COLVILLE, J.:

Case History: Flores I

¶ 1 This direct appeal has returned to us after we remanded it for the filing of a proper concise statement of matters complained of on appeal, commonly known as a 1925(b) statement. See Commonwealth v. Flores, 909 A.2d 387, 392 (Pa.Super.2006) (Flores I); Pa.R.A.P.1925(b). When we first considered this matter, before remand, Appellant's attorney had filed a petition to withdraw as counsel, alleging that the appeal was frivolous. Counsel had also filed a brief pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), presenting issues that might arguably support the appeal. However, none of the issues in the Anders brief had been preserved in the original 1925(b) statement. Accordingly, we were precluded from considering the substance of any issue in Appellant's brief. See Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 780 (2005) (holding that failure to preserve issues in a 1925(b) statement results in waiver thereof).

¶ 2 In most cases where no issues are preserved by the 1925(b) statement, we simply find total waiver and affirm the judgment of sentence. Flores I, 909 A.2d at 390. However, this case involved, and still involves, Anders, which is specifically designed to ensure that counsel acts effectively by preserving the appellant's issues for direct appeal. Anders, 386 U.S. at 743, 744, 87 S.Ct. 1396. We therefore considered the interplay between the purposes of Rule 1925(b) and the purposes of Anders.

¶ 3 The purposes of Rule 1925(b) are to facilitate the preparation of a trial court opinion, to allow meaningful appellate review of issues, and to promote the certainty, consistency and fairness which arise when all appellants are equally obligated to meet procedural rules, specifically Pa. R.A.P.1925(b). Flores I, 909 A.2d at 390. Our 1925(b) case law seeks to eliminate the uncertainty, inconsistency and unfairness that can arise when trial and appellate courts have discretion to address or to waive issues listed in defective 1925(b) statements. Flores I, 909 A.2d at 390.

¶ 4 The purpose of Anders is for counsel to preserve a criminal defendant's constitutional right to pursue a direct appeal even if counsel thinks that the appeal is frivolous. Flores I, 909 A.2d at 390. Thus, Anders seeks to protect two related rights — the right to appeal and the right to effective counsel, at least to the extent of preserving appellate issues. Anders, 386 U.S. at 743, 744, 87 S.Ct. 1396; Flores I, 909 A.2d at 390; See U.S. CONST. amend. VI (right to counsel); PA. CONST. art. I, § 9 (right to counsel); PA. CONST. art. V, § 9 (right to direct appeal). When a criminal defendant's appellate attorney believes the issues which the appellant wants to pursue are frivolous, and when the attorney therefore seeks to withdraw from representation, the attorney nonetheless has a duty to preserve appellant's desired issues so that the appellant can gain direct appellate review of those issues either pro se or through new counsel. Flores I, 909 A.2d at 390. If counsel does not preserve the particular issues which the appellant wants to pursue, and if counsel is permitted to withdraw, the appellant will not be able to pursue those particular issues once counsel's representation ends. Id. Moreover, if counsel preserves no issues whatsoever and is then allowed to withdraw, there will be zero issues for this Court to review. Id. Put another way, counsel's failure to preserve any issues will completely deny the appellant the constitutional right to a direct appeal. Id.

¶ 5 We also noted in Flores I that a finding of total waiver due to 1925(b) errors would encourage Anders counsel, who already thinks the appeal is frivolous, merely to shirk the obligation to file a proper 1925(b) statement. Flores I, 909 A.2d at 390. Counsel could simply file a shoddy 1925(b) statement, preserving no issues and precipitating the end of the case without affording the appellant a meaningful direct appeal. This result would frustrate the Anders goal of preserving the appellant's issues for appeal. Flores I, 909 A.2d at 390.

¶ 6 In light of these considerations, we fashioned a holding designed to secure compliance with 1925(b) and to afford Appellant a direct appeal. In particular, we concluded that, because counsel in this case seeks to withdraw pursuant to Anders, and because the initial 1925(b) statement preserved no issues which were in the Anders brief, the appropriate action was to deny counsel's request to withdraw and to remand for the filing of a proper 1925(b) statement. Flores I, 909 A.2d at 390.

¶ 7 It is important to understand that, if the original 1925(b) statement had preserved any of the issues in the brief, we could have addressed them, even if other issues had been waived by the statement. Commonwealth v. Stevenson, 894 A.2d 759, 766 (Pa.Super.2006) (finding waiver of issue not listed in 1925(b) statement but addressing other issues that were preserved in the statement). In such a circumstance, the limited 1925(b) waiver would not have completely denied Appellant his direct appeal rights because there would have been at least some issues properly before us. Appellant would have been afforded his direct appeal, albeit with some issues waived — just as any other appellant on any other appeal might waive certain issues and preserve certain issues. There being some issues preserved, a remand would have been unnecessary. However, such was not the case; no briefed issues had been preserved by the 1925(b) statement. There was nothing to review on direct appeal. The 1925(b) defects worked a total denial of Appellant's direct appeal right and, of course, the related denial of Appellant's right to have counsel effectively preserve his issues. Because this is an Anders case, wherein the law seeks to ensure both those rights, we needed to remand the matter.

¶ 8 One might argue that this Court could remand for the filing a proper 1925(b) statement any time there is any waiver, even partial waiver. In so doing, we could then ensure that no issues are ever waived due to faulty 1925(b) statements. Of course, in so doing we would also disregard our rules, act as appellant's counsel every time there is a 1925(b) error, and destabilize the appellate system. We think it wise not to do so. Rather, we have made a determination that, in the limited context where counsel is seeking to withdraw, pursuant to Anders, from a criminal defendant's constitutionally guaranteed direct appeal, and where a faulty 1925(b) statement has waived all issues, we will remand for the correction of 1925(b) errors so that the appellant is not completely denied the right to appeal. Flores I, 909 A.2d at 390.

¶ 9 Having ruled pursuant to the foregoing analysis, we remanded this case. Subsequently, counsel filed a new 1925(b) statement. Also, counsel again filed a petition to withdraw and an Anders brief. The trial court issued a supplemental opinion in response thereto and the case is now again before us.

Anders

¶ 10 For counsel to withdraw pursuant to Anders, counsel must: (1) file a petition for leave to withdraw which states that, after making a conscientious examination of the record, counsel has determined that the appeal is frivolous; (2) file a brief referring to anything that might arguably support the appeal; and (3) furnish a copy of the brief to the appellant, advising him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of this Court's attention. Commonwealth v. Kearns, 896 A.2d 640, 643 (Pa.Super.2006). If this Court receives such a petition and an Anders brief, and if we are satisfied that counsel has complied with the foregoing three requirements, we then must undertake our own independent examination of the issues in the Anders brief to determine whether the appeal is wholly frivolous. Kearns, 896 A.2d at 643. Counsel has complied with the aforesaid three requirements. Therefore, we turn to the issues in the Anders brief.

¶ 11 In this case, the issues in the Anders brief are: (1) whether there was sufficient evidence to sustain the convictions for two counts of criminal trespass and one count of theft; (2) whether the trial court abused its sentencing discretion; and (3) whether the trial court erred by denying counsel's motion for a continuance and by trying Appellant in absentia. Finding Appellant's first two issues to be waived, and finding the third to be preserved but frivolous, we grant counsel's petition to withdraw and affirm the judgment of sentence.

Sufficiency of the Evidence

¶ 12 Once again, the 1925(b) statement fails to preserve this claim. It will be helpful to begin our discussion by reiterating the problem with the original 1925(b) statement. The first 1925(b) statement contained the following language:

The evidence presented was insufficient to prove beyond a reasonable doubt that the appellant committed the above-captioned offenses. See Commonwealth v. May, 584 Pa. 640, 887 A.2d 750 (2005).

Appellant's 1925(b) Statement, 04/07/06, at 1.

¶ 13 In our first opinion, we explicitly found that the problem with this statement was that it did not tell us which material element was unproven. We held:

In the present case, the 1925(b) statement language does not specify how the evidence failed to establish which element or elements of the three offenses for which Appellant was convicted.

Flores I, 909 A.2d at 392.

¶ 14 The new 1925(b) statement reads:

The evidence presented was insufficient to prove beyond a reasonable doubt that the appellant...

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