NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
:
ADAM DOUGLAS FINK :
:
Appellant : No. 968 MDA 2025
Appeal from the Judgment of Sentence Entered June 24, 2025 In the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP-44-CR-0000396-2023
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J. MEMORANDUM BY OLSON, J.: FILED: AUGUST 24, 2026 Appellant, Adam Douglas Fink, appeals from the June 24, 2025 judgment of sentence entered in the Court of Common Pleas of Mifflin County after a jury convicted him of discharge of a firearm into an occupied structure (Count 2), firearm arms not to be carried without a license (Count 3), and recklessly endangering another person (Count 4).1 The trial court sentenced Appellant to an aggregate term of 84 to 168 months’ incarceration to be followed by one year of reentry supervision.2 Counsel for Appellant, Justin P.
____________________________________________
1 18 Pa.C.S.A. §§ 2707.1(a), 6106(a)(1), and 2705, respectively.
2 On Count 2, the trial court sentenced Appellant to 42 to 84 months’ incarceration and awarded Appellant 720 days credit for time served. Appellant was ordered to pay a $500.00 fine and restitution in the amount of $3,779.73.
Miller, Esquire (“Attorney Miller”) filed an Anders brief and a petition to withdraw as counsel.3 Upon review, we affirm the judgment of sentence and grant the petition to withdraw.
Appellant’s criminal conviction stems from an incident on October 25, 2022, wherein Appellant, armed with a handgun, shot at, and struck, a residence while the victim was inside sleeping. Affidavit of Probable Cause, 7/6/23. Appellant was charged with the aforementioned crimes, as well as persons not to possess, use, manufacture, control, sell, or transfer firearms (Count 1).4 On May 16, 2025, a jury convicted Appellant of discharge of a firearm into an occupied structure, firearm arms not to be carried without a license, and recklessly endangering another person. On June 24, 2025, the
____________________________________________
On Count 3, the trial court sentenced Appellant to 42 to 84 months’ incarceration to be followed by one year of reentry supervision with the sentence set to run consecutively to the sentence imposed on Count 2. Appellant was ordered to pay a $300.00 fine.
On Count 4, the trial court sentenced Appellant to 12 to 24 months’ incarceration with the sentence set to run concurrently to the sentence imposed on Count 2.
Appellant’s aggregate term of incarceration was 84 to 168 months to be followed by one year of reentry supervision. Sentencing Order, 6/27/25.
3 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
4 18 Pa.C.S.A. § 6105(a)(1). On April 2, 2025, the trial court granted the Commonwealth’s motion to sever Count 1 from the remaining criminal charges.
3
trial court sentenced Appellant as discussed supra. This appeal followed.5 On March 17, 2026, Attorney Miller filed an Anders brief and a petition to withdraw as counsel with this Court.
Preliminarily, we must address Attorney Miller’s petition to withdraw and the accompanying Anders brief, both alleging this appeal is frivolous and without merit. Anders Brief at 18; see also Petition to Withdraw as Counsel, 3/17/26, at ¶ 2. “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) (citation omitted). In order to withdraw pursuant to Anders, “counsel must file a brief that meets the requirements established by our Supreme Court in [Santiago, supra].” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014) (parallel citation omitted). Specifically, counsel’s Anders brief must comply with the following prerequisites:
(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
____________________________________________
5 Appellant and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
4
record, controlling case law, [and] statutes on point that have led to the conclusion that the appeal is frivolous.
Id. (citation omitted).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders brief to his [or her] client.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation omitted). The brief must be accompanied by a letter that advises the client of the option 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 [this Court’s] attention in addition to the points raised by counsel in the Anders brief.” Id. “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) (citation and internal quotation marks omitted).
Instantly, Attorney Miller satisfied the technical requirements of Anders and Santiago. In the Anders brief, counsel identifies the pertinent factual and procedural history and makes citation to the record. Counsel raises several issues challenging Appellant’s judgment of sentence that could arguably support an appeal, but ultimately, counsel concludes the appeal is wholly frivolous. Anders Brief at 11-18. Counsel also attached to his petition a letter to Appellant that fulfills the notice requirements of Millisock.
5
Appellant has not filed a response to counsel’s letter, the Anders brief, or the petition to withdraw. Accordingly, we proceed to conduct an independent review of the record to determine whether the appeal is wholly frivolous.
In the Anders brief, counsel raises the following issues for our review:
1. Whether the trial court violated [Pennsylvania Rule of Criminal Procedure] 600 by trying [Appellant] after more than 365 days not attributable to [Appellant] elapsed?
2. Whether the trial court erred in granting the Commonwealth’s motion to preclude the testimony of [a potential alibi witness] relative to [Appellant’s] alibi defense, thus preventing counsel from eliciting testimony from [the potential alibi witness] regarding the whereabouts of [Appellant] during the time of the alleged criminal acts?
3. Whether the trial court erred in admitting testimony and evidence of a prior trial involving [Appellant] at which he was acquitted?
Anders Brief at 6.6 Appellant’s first issue concerns a potential violation of his right to a speedy trial, as protected by Rule 600, which requires a trial to commence
____________________________________________
6 For ease of disposition, we have reorganized Appellant’s issues. The Commonwealth did not file a response brief.
We caution Attorney Miller to carefully review work product submitted to this Court, as well as any court filing. On page 11 of the Anders brief, it appears that Attorney Miller inserted a paragraph concerning another case immediately following his citation to Santiago, supra. See Anders Brief at 11 (referring to the paragraph which starts, “After performing an exhaustive review of the record, . . .”). This error, however, does not affect our assessment of Appellant’s appeal or Attorney Miller’s petition to withdraw.
6
against a criminal defendant “within 365 days from the date on which the complaint was filed.” Id. at 16-17; see also Pa.R.Crim.P. 600(A)(2)(a).
Rule 600(D)(1) states that
When a defendant has not been brought to trial within [365 days from the date on which the complaint was filed], at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing.
Pa.R.Crim.P. 600(D)(1) (emphasis added). As such, a claim that alleges a Rule 600 violation and sought dismissal of the charges with prejudice is preserved for purpose of appeal if a defendant filed a written motion before trial, requested dismissal of the charges with prejudice because of a Rule 600 violation, served the motion on the Commonwealth, and the trial court denied the motion. See Commonwealth v. Brock, 61 A.3d 1015, 1019-1020 (Pa. 2013) (stating that, to preserve a challenge to a Rule 600 claim, the motion seeking dismissal pursuant to Rule 600 must be in writing and must be served on the Commonwealth); see also Pa.R.Crim.P. 600(D)(1).
Rule 600(D)(2), which concerns a request for release on nominal bail after the passage of a certain period of pretrial incarceration, provides that
Except in cases in which the defendant is not entitled to release on bail as provided by law, when a defendant is held in pretrial incarceration beyond [180 days from the date on which the complaint is filed], at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the defendant be released immediately on nominal bail subject to any nonmonetary conditions of bail imposed by the court as permitted by law. A
7
copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing.
Pa.R.Crim.P. 600(D)(2) (emphasis added).
Although Rule 600(D)(1) and Rule 600(D)(2) both require a motion seeking relief to be filed in writing before trial with a copy of the motion served concurrently on the Commonwealth, it is at this juncture that the similarities between the two rules end. Rule 600(D)(1) protects a criminal defendant’s right to a speedy trial by requiring the trial to commence within 365 days from the date on which the complaint was filed or the defendant may seek to have the criminal charges dismissed with prejudice. Rule 600(D)(2), on the other hand, protects a criminal defendant’s right to be free from prolonged pretrial incarceration. The remedy provided by Rule 600(D)(2) is the release of the defendant on nominal bail, not the dismissal of the criminal charges with prejudice. Thus, a motion filed pursuant to Rule 600(D)(1), requesting the dismissal of criminal charges with prejudice, is distinct and separate from a motion filed pursuant to Rule 600(D)(2), which seeks a defendant’s release on nominal bond. See Commonwealth v. Dixon, 907 A.2d 468, 473 (Pa. 2006) (stating, “Rule 600 establishes a careful matrix protecting a defendant’s rights to be free from prolonged pretrial incarceration and to a speedy trial, while maintaining the Commonwealth’s ability to seek confinement of dangerous individuals and those posing a risk of flight, and to bring its cases in an orderly fashion”).
8
The record reveals that, on July 12, 2024, Appellant filed a motion that requested he be released from confinement on nominal bail pursuant to Rule 600(D)(2) on the ground that “[m]ore than 180 days[] elapsed since the filing of the [c]omplaint against [him.]” Motion for Release on Nominal Bail, 7/12/24, at ¶ 7. On September 6, 2024, the trial court denied Appellant’s motion that sought his release on nominal bail. Trial Court Order, 9/6/24. Appellant did not file a subsequent motion that sought the dismissal of his criminal charges with prejudice pursuant to Rule 600(D)(1). As such, we find that Appellant waived his Rule 600(D)(1) claim for failure to raise the claim before the trial court. Consequently, he may not raise it for the first time on appeal. Pa.R.A.P. 302(a) (providing, “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal”); see also Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020) (stating, “the mere filing of an Anders brief and petition to withdraw will not serve to resuscitate claims that were already waived upon the filing of the notice of appeal”).
In his remaining two issues, Appellant challenges certain evidentiary rulings by the trial court. First, Appellant claims the trial court erred in granting the Commonwealth’s request to exclude alibi testimony, thereby preventing Appellant from offering an alibi defense. Anders Brief at 12-14. Next, Appellant claims the trial court erred in permitting certain questioning by the Commonwealth regarding a separate criminal matter in which Appellant was acquitted of possession of the same firearm that was at issue in the
9
instant case. Id. at 14-15. Attorney Miller concludes that both of these evidentiary challenges are without merit.
Appellate courts review evidentiary decisions for an abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion[,] the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-will, as shown by the evidence or the record, discretion is abused.
Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017) (citations and quotation marks omitted).
We begin by examining whether, or not, the trial court erred in excluding the testimony of a witness that established an alibi for Appellant at the time of the incident. Pennsylvania Rule of Criminal Procedure 567, which governs notice of an alibi defense, states, in pertinent part, as follows:
Rule 567. Notice of Alibi Defense
(A) Notice by Defendant. A defendant who intends to offer the defense of alibi at trial shall file with the clerk of courts not later than [30 days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown,] a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.
(1) The notice and a certificate of service shall be signed by the attorney for the defendant, or the defendant if unrepresented.
(2) The notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claim.
10
(B) Failure to File Notice.
(1) If the defendant fails to file and serve the notice of alibi as required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.
Pa.R.Crim.P. 567(A) and (B)(1); see also Pa.R.Crim.P. 579(A).
On May 6, 2025, Appellant provided notice of an alibi defense pursuant to Rule 567.7 That same day, the Commonwealth filed an answer to Appellant’s notice and requested that Appellant be precluded from offering evidence in support of an alibi defense at trial pursuant to Rule 567(B)(1) because the notice was not provided within the requisite time and, as result, prejudiced the Commonwealth. On May 14, 2025, the trial court conducted a hearing on the matter. At the hearing, the proposed alibi witness stated that she was unable to specifically recall whether, or not, Appellant was present in their home between the time period of the evening of October 24, 2022, until 4:00 a.m., on October 25, 2022, and, as such, could not provide Appellant an alibi during the time of the incident.8 N.T., 5/14/25, at 11. On May 15, 2025, the trial court ruled that, based on the testimony presented by the proposed
alibi witness at the May 14, 2025 hearing, namely that the witness could not
____________________________________________
7 Appellant’s proposed alibi witness was his girlfriend that he lived with at the time of the incident. Notice of Alibi Defense, 5/6/25.
8 It was reported that, pertinent to Appellant’s criminal charges, gun shots were heard near the scene of the incident at 3:45 a.m., on October 25, 2022. Affidavit of Probable Cause, 7/6/23, at 1.
11
provide an alibi for Appellant during the time of the incident, the trial court would permit the witness to testify at trial in a non-alibi capacity, if called. Trial Court Order, 5/15/25.
At trial, the proposed alibi witness was able to specifically recall that Appellant was present in their home when she went to bed on the evening of October 24, 2022, and that he was present in their home when she awoke at 4:00 a.m., on October 25, 2022. N.T., 5/16/25, at 204. The Commonwealth objected to the testimony of the proposed alibi witness on the grounds that the testimony constituted an alibi and Appellant failed to provide a timely notice of an alibi defense pursuant to Rule 567(A). Id. at 204-205, 211. The Commonwealth argued that, based on the proffer of testimony presented at the May 14, 2025 hearing, it understood that the proposed alibi witness was unable to provide Appellant an alibi for the evening of the incident, and, as such, her proposed testimony would not run afoul of the Rule 567 notice requirement. Id. at 206, 211-212. The Commonwealth asserted that, at trial, the proposed alibi witness’s testimony contradicted her prior testimony when she provided Appellant an alibi for the evening of the incident. Id. at 211-212. Counsel for Appellant9 responded that he was unaware the proposed witness would provide Appellant an alibi and that he expected the witness to testify in accordance with her testimony proffered at the May 14, 2025 hearing. Id. at
214. The trial court sustained the objection and advised the jury that they
____________________________________________
9 Appellant was represented by Attorney Miller at trial.
12
were to “disregard any testimony [by the witness] that reference[d] the evening of October 24[, 2022,] or the early morning hours of [October 25, 2022,] until 4[:00 ]a.m.” Id. at 219. The trial court explained that the witness’s “testimony at trial was indicative of an alibi defense as she confirmed Appellant’s presence during the evening of October 24, 2022, thereby violating the notice requirement of [Rule] 567.” Trial Court Opinion, 8/14/25, at 3. The trial court reasoned that “Appellant had personal knowledge of [his girlfriend] being an alibi witness throughout the entire life of the case but failed to file [a notice of alibi defense] until [11] days prior to trial and just shy of two [] years after the criminal complaint was filed.” Id. at 4.
Upon review, we discern no abuse of discretion or error of law in the trial court’s decision to provide a curative instruction to the jury, thereby, excluding certain aspects of the witness’s testimony. As the trial court determined, and the record supports, Appellant was aware from the inception of the case that his girlfriend could provide him an alibi for the evening of the incident. Appellant waived his arraignment on August 8, 2023, and, as such, was required to file a notice of alibi defense by September 7, 2023, since Appellant knew of the existence of an alibi witness, unless Appellant sought permission from the trial court to extend the time for cause shown. See Pa.R.Crim.P. 567(A); see also Pa.R.Crim.P. 579(A). Appellant did not file his notice of alibi defense until May 6, 2025, 11 days prior to the start of trial on
13
May 16, 2025.10 At trial, Appellant’s girlfriend provided him an alibi for the evening of the incident. As such, the trial court properly exercised its discretion to exclude the testimony based upon a violation of Rule 567.
Appellant also claims the trial court erred in permitting the Commonwealth to question him on cross-examination regarding his acquittal in a separate criminal trial in which he was charged with possession of the firearm that was used in the instant criminal incident. Anders Brief at 14-15.
Section 5918 of the Judicial Code states that,
No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation unless:
(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
____________________________________________
10 In the Anders brief, Attorney Miller stated that Appellant “initially informed
[his former trial] counsel of his alibi defense early in the case.” Anders Brief at 12. Attorney Miller, who was appointed as trial counsel after prior trial counsel was granted permission to withdraw, stated that, upon his appointment, he “was unable to confirm this alibi with the proffered witness. Upon contacting [Appellant’s girlfriend] later in the case, she was uncooperative and declined to answer questions.” Id. Attorney Miller stated that he “did not pursue her as a witness or [an alibi defense] as a viable defense until the eve of trial and at the insistence of [Appellant, who contacted Attorney Miller and stated that the proposed alibi witness wanted to speak with him.]” Id. at 12-13. Prior to filing the notice of alibi defense on May 6, 2025, Attorney Miller did not seek the trial court’s permission to file the notice nunc pro tunc.
14
(2) he shall have testified at such trial against a co-defendant, charged with the same offense.
42 Pa.C.S.A. § 5918. It has long-been held, however, that “[if a] defendant delves into what would be objectional testimony on the part of the Commonwealth, then the Commonwealth can probe further into the objectionable area.” Commonwealth v. Lewis, 885 A.2d 51, 54-55 (Pa. Super. 2005) (relying on Commonwealth v. Stakley, 365 A.2d 1298 (Pa. Super. 1976)), appeal denied, 906 A.2d 540 (Pa. 2006); see also Commonwealth v. Bey, 439 A.2d 1175, 1178 (Pa. Super. 1982) (stating, “[w]here [a defendant] opens the door, to what otherwise might be objectionable testimony, the Commonwealth may probe further to determine the veracity of the trial statement”); Commonwealth v. Edmiston, 851 A.2d 883, 899 (Pa. 2004) (stating that, while it is improper for the Commonwealth to initiate an examination concerning a prior acquittal, “the calculus is entirely different when the defense opens the door to the subject”).
At trial, Appellant testified on direct examination as follows:
[Attorney Miller:] So that firearm that was introduced [(referring to the firearm used in the incident that gave rise to the aforementioned criminal charges)], is that familiar to you?
[Appellant:] I imagine that’s the one [my girlfriend]
brought. Can’t tell since it was [taken]
apart obviously and I was never in possession of it.
[Attorney Miller:] In fact, it was possession of that particular [hand]gun that you went to trial on?
15
[Appellant:] Yes. I was found not guilty of possession of it then. I don’t understand why I’m still on trial for it today, but here we are.
[Attorney Miller:] You understand that was a separate case?
[Appellant:] A separate case, same [hand]gun allegedly. You know, they say – if I didn’t possess it then, how am I going to possess it now, you know?
N.T., 5/16/25, at 251. On cross-examination, the Commonwealth questioned Appellant, in pertinent part, as follows:
[Commonwealth:] So you made it a point to tell this jury and [Attorney] Miller has as well that you were acquitted in another case concerning a [handgun], right?
[Appellant:] Correct.
[Commonwealth:] And your words – and maybe I have them wrong. You said same thing so I can’t be convicted here, same [handgun], so on and so forth. Is that kind of what you said?
[Appellant:] I didn’t say I couldn’t be convicted. I mean, it’s up to the jury and what they believe.
[Commonwealth:] Okay, but you made the statement same [handgun] I was acquitted of possessing it then, so on?
[Appellant:] Well, it wasn’t – it wouldn’t have been the same [handgun]. I was not in possession of that [handgun] then.
Id. at 258-259.
In order to preserve a challenge to the admissibility of evidence for appellate review, Pennsylvania Rule of Evidence 103(a)(1) requires a party to
16
make “a timely objection, motion to strike, or motion in limine” that “states the specific ground, unless it is apparent from the context,” for the objection. Pa.R.Evid. 103(a)(1)(A) and (B); see also Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (stating, “it is axiomatic that issues are preserved when objections are made timely to the error or offense[, and the] failure to offer a timely and specific objection results in waiver of the claim” (citations and original quotation marks omitted)), cert. denied, 558 U.S. 521 (2009); Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal”).
A review of the record demonstrates that counsel for Appellant did not lodge an objection to the Commonwealth’s inquiry into Appellant’s prior acquittal of firearm charges. N.T., 5/16/25, at 254-261. Therefore, Appellant waived his claim for purpose of appeal. Moreover, we find that Appellant “opened the door” to the Commonwealth’s limited cross-examination when Appellant first raised his acquittal on firearm charges during direct examination. See Lewis, 885 A.2d at 54-55; see also Bey, 439 A.2d at 1178; Edmiston, 851 A.2d at 899.
Upon a review of the record, we conclude it supports Attorney Miller’s assessment that Appellant’s appeal is wholly frivolous. Moreover, our independent review of the record reveals no additional, non-frivolous claims. Therefore, we grant counsel’s petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
17
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 08/24/2026