Com. v. Brown, M.

Opinion

J-S14040-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARCUS ANTHENAL BROWN : : Appellant : No. 627 MDA 2025

Appeal from the Judgment of Sentence Entered March 13, 2025 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003948-2024

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 16, 2026

Marcus Anthenal Brown (“Appellant”) appeals from the judgment of

sentence imposed following his jury trial. Appellant’s counsel, Brandy Grace

Hoke, Esq., seeks to withdraw from representation 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.

As the sole issue addressed in the Anders brief discusses the trial

court’s denial of a motion for directed verdict, we summarize the evidence

presented by the Commonwealth in its case-in-chief.

On April 16, 2024, Pennsylvania State Police Troopers Eric Dressler and

Zachary Larkin separately responded to the area of 23 East High Street. N.T.,

3/13/25, at 110. Trooper Larkin arrived first and knew from the dispatcher

that Appellant “had an active warrant in the system.” Id. at 80. Additionally, J-S14040-26

the troopers “were notified that [Appellant] had left the residence prior to

arrival” and Trooper Larkin started “to ... canvass the area to help locate

[Appellant].”1 Id. Upon arrival in the general area, Trooper Larkin began

searching and “observed [Appellant] running across the roadway.” Id. at 84.

Appellant “was already in essentially a full sprint” and Trooper Larkin opined

that Appellant “could clearly see that [Trooper Larkin] was in a marked patrol

car.” Id. at 86. Trooper Larkin parked his vehicle and began a foot pursuit,

declaring himself a member of the Pennsylvania State Police and issuing

commands to stop. Id. Appellant began “to slow his pace” and Trooper Larkin

was “able to catch up” to Appellant, but Appellant “refused to stop” and the

trooper “had to physically wrestle him to the ground.” Id. at 87.

Trooper Dressler arrived on scene after Trooper Larkin apprehended

Appellant. He “rushed over ... and conducted a search incident to arrest[.]”

Id. at 113. Trooper Dressler recovered suspected crack cocaine and a device

“used to smoke crack cocaine.” Id. at 120. Based on these events, the

Commonwealth charged Appellant with flight to avoid apprehension,

possession of a controlled substance, and possession of drug paraphernalia.

____________________________________________

1 The Commonwealth did not specifically elicit the nature of the call that led

to the dispatch. Trooper Larkin testified that they were sent to “an apartment complex located on East High Street.” N.T., 3/13/25, at 82.

Appellant called his wife, Ashlee Brown, who testified that she called 911 because Appellant “was doing drugs” and she “didn’t want them in [her] home or around [their] children.” Id. at 135. Brown testified that it took approximately 20 minutes for the troopers to arrive and that Appellant immediately stopped when confronted.

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Appellant “move[d] for a directed verdict” after the Commonwealth

rested on the basis that the witnesses failed to identify him. Id. at 129.

Appellant argued that “there wasn’t any identification of him in open court.”

Id. at 130. The Commonwealth conceded that the witnesses did not explicitly

identify Appellant as the man they encountered and arrested, but argued that

“the jury can infer that there was an identification.” Id. The trial court denied

the motion. Ultimately, the jury found Appellant not guilty of flight to avoid

apprehension, and guilty of the possessory offenses. Appellant opted for

immediate sentencing, and the trial court imposed an aggregate period of two

years of probation.

On April 11, 2025, the Clerk of Courts docketed a pro se notice of appeal.

The trial court appointed counsel on May 29, 2025, and ordered Appellant to

file a Rule 1925(b) statement. However, counsel failed to file a statement and

the trial court issued an opinion deeming all issues waived.

Appellant filed a pro se application to remand. We granted the

application, retained jurisdiction and directed the trial court to determine if

counsel had abandoned Appellant and, if so, to take steps to protect

Appellant’s appellate rights. The trial court appointed Attorney La Tasha

Williams, Esq., and authorized counsel to file a Rule 1925(b) statement.

Attorney Williams complied and filed a statement alleging that the trial court

erred in failing to grant a directed verdict in Appellant’s favor “due to

insufficient evidence of the element of identity.” Concise Statement, 12/7/25.

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The trial court’s responsive opinion acknowledged that case law typically

addresses identity challenges in “trials in which in-court identifications were

explicitly made,” and where the challenge involves claims of mistaken identity

or some other impediment to an accurate identification. Trial Court Opinion,

1/15/16, at 9. The court noted that “circumstantial evidence ... is sufficient

to undergird such convictions” in those cases, and concluded that the same

principle applies here. Id. To establish circumstantial evidence of identity,

the trial court cited the Commonwealth’s questions and the witnesses’

answers, which “frequently included usage of ‘the [d]efendant.’” Id.

Additionally, “Trooper Dressler specifically named the Appellant,” as he used

the name “Marcus Brown” during his testimony. Id. (quoting N.T., 3/13/25,

at 108)). The trial court concluded that the Commonwealth presented

sufficient circumstantial evidence for the jury to infer that Appellant was the

individual referenced in the testimony.

In this Court, Attorney Hoke2 has filed an Anders brief that examines

the directed verdict issue presented in the December 7, 2025, concise

statement.

“Before we address the merits of this appeal, we must determine

whether counsel has complied with the procedures provided in Anders and

its progeny.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.

2 The trial court granted Attorney Williams’ petition to withdraw filed after her

election to the Court of Common Pleas. The trial court thereafter appointed Attorney Hoke to represent Appellant on appeal.

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2018) (en banc). “In order to withdraw from appellate representation

pursuant to Anders, certain procedural and substantive requirements must

be met.” Commonwealth v. Tejada, 176 A.3d 355, 358–59 (Pa. Super.

2017). As a procedural matter, counsel must

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.

Id. at 359.

Counsel’s petition to withdraw set forth her “determin[ation], upon a

conscientious examination of the entire record, that an appeal ... would be

meritless.” Petition to Withdraw, 1/30/26, at ¶ 5. Attorney Hoke sent a letter

to Appellant, which was attached to her application to withdraw, informing

Appellant of his rights to raise additional arguments or points in a pro se

capacity or hire an attorney to file an advocate’s brief. See Commonwealth

v. Blango, 327 A.3d 670, 675 (Pa. Super. 2024) (“[T]his Court has held that

counsel must ‘attach to their petition to withdraw a copy of the letter sent to

their client advising him or her of their rights.’”) (quoting Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa. Super. 2005)). We conclude that Attorney

Hoke has substantially complied with the procedural requirements.3 ____________________________________________

3 We conclude that Attorney Hoke has “substantially complied” with the requirements set forth in Tejada, because in her petition to withdraw, she (Footnote Continued Next Page)

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Turning to the substantive requirements, to comply with the Santiago

Court’s requirements the brief 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. ____________________________________________

states that an appeal would be “meritless” rather than “frivolous.” Petition to Withdraw, 1/30/26, at ¶5. In a prior case involving Attorney Hoke, we cautioned her regarding this nomenclature as follows:

While the word “frivolous” appears nowhere in the documents Attorney Hoke submitted, we deem her pronouncement that the appeal as a whole is unwarranted as sufficiently analogous. See Petition to Withdraw, 12/20/24, at ¶ 7 (stating the determination that an appeal from the order in question “would be meritless”); Letter to Appellant, 12/20/24, at unnumbered 1 (“I do not believe there are any meritorious issues that warrant the filing of an appeal in your case.”). See also Smith v. Com., Pennsylvania Bd. of Prob. & Parole, 574 A.2d 558, 562 (Pa. 1990) (“[T]he terms ‘wholly frivolous’ and ‘without merit’ are often used interchangeably in the Anders brief context.).

Commonwealth v. McWilliams, 1399 MDA 2024, 2025 WL 3043626, at *2 (Pa. Super. filed July 18, 2025) (unpublished memorandum); see also Pa.R.A.P. 126(b)(2) (stating that unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value). We reach the same conclusion as the McWilliams Court, and as stated, conclude that Attorney Hoke substantially complied with the aforementioned requirements. However, we admonish Attorney Hoke once again for her failure to apply the correct terminology and caution her to adhere to the requirements for withdrawal under Anders/Santiago. See Tejada, supra.

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Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super. 2017) (citation

omitted).

We conclude that the brief substantially complies with these four

requirements, and now “make an independent determination of the merits of

the appeal.” Santiago, 978 A.2d at 358. We “review ‘the case’ as presented

in the entire record with consideration first of issues raised by counsel.”

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

banc). For the following reasons, we agree that any challenge to the trial

court’s failure to grant a directed verdict would be frivolous.

“A motion for a directed verdict should be granted if the prosecution’s

evidence, and all inferences arising therefrom, considered in the light most

favorable to the prosecution are insufficient to prove beyond a reasonable

doubt that the accused is guilty of the crimes charged.” Commonwealth v.

Finley, 383 A.2d 1259, 1260 (Pa. 1978). We apply the legal test applicable

to sufficiency-of-the-evidence challenges raised on appeal following a jury’s

verdict, which is well-established:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth’s burden

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may be met by wholly circumstantial evidence and any doubt about the defendant’s guilt is to be resolved by the fact[-]finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa. Super. 2017).4

“Proof beyond a reasonable doubt of the identity of the accused as the

person who committed the crime is essential to a conviction.”

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973). Thus, while

“identity” is not an “element” in the sense of statutory elements as defined by

the Crimes Code,5 for purposes of addressing whether the Commonwealth has

satisfied guilt beyond a reasonable doubt our precedents treat identity as an

4 However, the specific procedural posture herein dictates the scope of evidence we may consider. When examining whether a jury’s verdict is supported by sufficient evidence, we examine all evidence, including evidence from the defense and evidence that was improperly admitted. See Commonwealth v. Baker, 24 A.3d 1006, 1034 (Pa. Super. 2011) (“Where improperly admitted evidence has been allowed to be considered by the jury, its subsequent deletion does not justify a finding of insufficient evidence.”) (citation omitted). Because the motion here was made at the close of the Commonwealth’s case, we do not consider the defense evidence, which included Appellant’s wife’s testimony as well as Appellant’s testimony. See Commonwealth v. McGinnis, 515 A.2d 847, 851 (Pa. 1986) (concluding that trial court erred by not granting motion for acquittal of driving under the influence charge due to improper admission of breathalyzer test); id. (Hutchinson, J., dissenting) (arguing that “the evidence should be judged on all of the evidence presented at trial, even evidence improperly admitted”). This principle would apply here as a motion for directed verdict “is the same as a motion for judgment of acquittal.” Commonwealth v. Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016). 5 18 Pa.C.S. § 103 (defining “element of an offense,” which does not include identity).

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element. See Commonwealth v. Minnis, 458 A.2d 231, 232 (Pa. Super.

1983) (“The test of sufficiency of the evidence is whether ... there is sufficient

evidence to find every element of the crime and the identity of the accused

beyond a reasonable doubt.”) (emphasis added). Accordingly, we apply the

same principles to questions of identity, including the Commonwealth’s

entitlement to rely on circumstantial evidence to establish this “element.”

The trial court’s conclusion that the jury could circumstantially infer

Appellant was the man discussed by the troopers in their testimony is

irrefutable. While the Commonwealth failed to have the eyewitnesses directly

identify Appellant in court, as the trial court noted the transcript is replete with

references to “the defendant” generally and on one occasion the name

“Marcus Brown” specifically. A few examples demonstrate the point. Trooper

Larkin stated that “the [d]efendant had an active warrant in the system.”

N.T., 3/13/25, at 80. The Commonwealth asked the trooper, “Can you please

point out to the jury approximately where you first encountered the

[d]efendant?” Id. at 84. Trooper Larkin then described “where [he] observed

[him] running across the roadway.” Id. Later, he stated that he took “him

into custody[.]” Id. at 88. Trooper Dressler, who performed the search

incident to arrest, testified that upon arrival he “went up and interacted with

Trooper Larkin and the [d]efendant, Marcus Brown[.]” Id. at 108. This

evidence was sufficient in terms of circumstantial proof to enable an inference

that Appellant was the man discussed by the troopers in their testimony. We

therefore agree that any challenge to the trial court’s ruling would be frivolous.

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Moreover, we further conclude that, based on our independent analysis

of this issue, Appellant was judicially estopped from arguing that the

Commonwealth failed to establish his identity. Our Supreme Court has

summarized that doctrine as follows:

[T]he purpose of judicial estoppel is “to uphold the integrity of the courts by ‘preventing parties from abusing the judicial process by changing positions as the moment requires.’” Trowbridge [v. Scranton Artificial Limb Company, 747 A.2d 862, 865 (Pa. 2000)] (quoting Gross v. City of Pittsburgh, 686 A.2d 864, 867 (Pa. Cmwlth. 1996)). In Tops Apparel Mfg. Co. v. Rothman, ... 244 A.2d 436 ([Pa.] 1968), our Court stated that “[a]dmissions ... contained in pleadings, stipulations, and the like are usually termed ‘judicial admissions’ and as such cannot be later contradicted by the party who made them.” Id. at 438 (internal footnote omitted). In Tops, we noted our longstanding reliance on this principle and stated that “[w]hen a man alleges a fact in a court of justice, for his advantage, he shall not be allowed to contradict it afterwards. It is against good morals to permit such double dealing in the administration of justice.”

In re Adoption of S.A.J., 838 A.2d 616, 621 (Pa. 2003) (citation omitted).

Appellant’s counsel opted to focus solely on the felony flight to avoid

apprehension charge, and her opening statement conceded that this is not a

case of mistaken identity.

The Commonwealth just got up here and told you what they believe the evidence is going to show. Keep in mind throughout this entire trial that the burden remains on the Commonwealth to prove each and every element of each and every offense beyond a reasonable doubt.

What is being contested in this case and the question that you are going to have to answer at the end of this trial is whether or not Marcus Brown fled from police with the intent to avoid apprehension. That’s going to be the issue before you, that’s why we’re here today having this trial. Did Marcus Brown flee from the police to avoid being apprehended.

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N.T., 3/13/25, at 75-76 (emphases added).

We conclude that this concession is sufficiently analogous to a

“stipulation[] ... and the like” as discussed in Tops and thus “cannot be later

contradicted.” Therefore, we would alternatively conclude that any appeal of

the trial court’s ruling would be frivolous for this reason as well. While the

burden of having the witnesses identify Appellant in court is surely modest,

the fact remains that Appellant conceded this was not a case where identity

was in question.

Finally, we have “conduct[ed] a simple review of the record to ascertain

if there appear on its face to be arguably meritorious issues that counsel,

intentionally or not, missed or misstated.” Dempster, 187 A.3d at 272.

Finding none, we grant the petition to withdraw and affirm the judgment of

sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/16/2026

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