Com. v. Bender, J.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2025
• Docket: 1689 MDA 2024
• Status: Unpublished

Opinion

J-S16025-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN BENDER : : Appellant : No. 1689 MDA 2024

Appeal from the Judgment of Sentence Entered October 22, 2024 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005408-2023

BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J.

JUDGMENT ORDER BY BOWES, J.: FILED MAY 23, 2025

John Bender appeals from the sentence of six months of probation

following his conviction for driving under the influence (“DUI”). Before this

Court, Alexander D. Egner, Esquire, has petitioned to withdraw as Appellant’s

counsel and filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

deny the petition to withdraw and order new briefing.

At the conclusion of a bench trial that began on October 21, 2024, the

trial court found Appellant guilty of one count of DUI. He was sentenced as

indicated above on October 22, 2024. Appellant timely appealed with the

assistance of counsel. The trial court ordered Appellant to file a statement

pursuant to Pa.R.A.P. 1925(b), and counsel complied by submitting a Rule

1925(c)(4) statement, expressing his intent to withdraw. The court entered J-S16025-25

an opinion indicating that in light of counsel’s filing, it had no basis upon which

to address any alleged errors on appeal.

As noted, counsel has filed in this Court an Anders brief and application

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

Commonwealth v. Falcey, 310 A.3d 313, 314-15 (Pa.Super. 2024)

(citations omitted).

Our Supreme Court has further detailed counsel’s duties as follows:

[I]n 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

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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.

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

and Anders brief, we conclude that he has not complied with the requirements

set forth above. Specifically, while counsel provided a summary of the

underlying facts in the brief, he included no citations to the record to support

his assertion that any issues raised would be frivolous. Moreover, there is no

indication that counsel requested the transcripts for the bench trial or

sentencing proceedings, and they are not included in the certified record. An

attorney cannot satisfy the requirements of Anders when he fails to procure

transcripts for dispositive proceedings. See, e.g., Commonwealth v.

Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015) (“Without these notes of

testimony, [c]ounsel could not have fulfilled his duty to review the entire

record for any non-frivolous issues.” (citation omitted)).

For these reasons, we deny Attorney Egner’s petition to withdraw and

direct counsel, within ten days of the date of this judgment order, to request

the notes of testimony for the bench trial that commenced on October 21,

2024, and the sentencing hearing held on October 22, 2024. Counsel shall

have forty-five days from the date the transcripts are completed to secure

their inclusion in a supplemental certified record, and file either an advocate’s

brief or a new Anders brief and petition to withdraw. The Commonwealth

shall have thirty days thereafter to respond.

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Application of Alexander D. Egner, Esquire, to withdraw as counsel

denied. New briefs ordered. Panel jurisdiction retained.

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