J-S22027-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY TYLER FOX : : Appellant : No. 1175 MDA 2024
Appeal from the PCRA Order Entered August 2, 2024 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001077-2022
BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 13, 2025
Anthony Tyler Fox appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). In this Court, Kristen L.
Weisenberger, Esquire, has filed a petition to withdraw as Appellant’s counsel
and a brief styled pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 We affirm the
order and grant counsel’s application to withdraw.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Withdrawal of counsel in PCRA appeals is governed not by Anders, but Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Typically, based on the heighted protection afforded by Anders, “this Court may accept an Anders brief in lieu of a Turner/Finely letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011). However, due to our disposition, there is no cause to analyze whether Attorney Weisenberger’s filing comports with Turner/Finley. J-S22027-25
This matter arises from Appellant’s open guilty plea to: four counts each
of rape of a child, corruption of minors, and unlawful contact with a minor;
three counts of aggravated indecent assault; and one count each of
involuntary deviate sexual intercourse with a child, indecent assault with a
person less than thirteen years of age, incest with a minor under thirteen
years of age, indecent exposure, possession of child pornography, and
criminal use of a communication facility. Appellant committed these crimes
against multiple victims, including his biological daughter, who at the time was
between six and seven years old, and recorded the assaults on his cell phone.
Prior to sentencing, plea counsel provided the court with a sentencing
memorandum containing a lengthy report authored by Frank M. Dattilio,
Ph.D., who interviewed Appellant. Dr. Dattilio expounded upon Appellant’s
claim that the combination of medication and narcotics he took during the
period that he committed his crimes caused him to black out and lose memory.
See Sentencing Memorandum, 6/24/22, at 8-14. At the ensuing sentencing
hearing, the court conducted a colloquy, allowed Appellant to exercise his right
to allocution, and ultimately sentenced him to seventy-nine to one hundred
and fifty-eight years in prison.
Appellant filed an unsuccessful post-sentence motion, alleging that his
sentence was excessive. This Court affirmed Appellant’s judgment of sentence
on appeal, rejecting Appellant’s argument that the sentencing court failed to
adequately weigh mitigating evidence such as his mental illness or the effects
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of his drug and alcohol use. See Commonwealth v. Fox, 303 A.3d 746,
2023 WL 4446365 (Pa.Super. 2023) (non-precedential decision).
Subsequently, Appellant submitted the instant timely pro se PCRA petition.
He alleged that plea counsel was ineffective for neglecting to inform him that
his sentence could have been negotiated, and that counsel failed to adequately
investigate the side effects of the drugs Appellant consumed during the period
that he committed the crimes. See PCRA Petition, 12/1/23, at ¶¶ 4, 6.
Andrew Cooper, Esquire, was appointed, and he filed a letter pursuant
to Turner/Finley seeking to withdraw. Counsel confirmed that he reviewed
the record and determined that Appellant’s challenges to plea counsel’s
effectiveness were meritless. See Turner/Finley letter, 5/30/24, at 1-3
(pagination provided). Attorney Cooper sent a copy of the letter to Appellant
and informed him that he had the right to proceed pro se or with privately
retained counsel. Id. at 3.
The PCRA court issued a Pa.R.Crim.P. 907 notice informing Appellant of
its intent to dismiss the petition without a hearing because it found that his
claims were without merit and granting Attorney Cooper’s application to
withdraw. The court further informed Appellant of his right to respond to the
notice within twenty days. Appellant did not reply, and thus the court
dismissed the petition. In the dismissal order, the court also advised Appellant
that if he intended to appeal, “he must do so pro se or with privately retained
counsel” within thirty days. See Order, 8/2/24.
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This timely pro se appeal followed. Despite the PCRA court’s previous
directive, it appointed Attorney Weisenberger to represent Appellant in this
appeal. In response to the court’s Pa.R.A.P. 1925(b) order, counsel filed a
statement in accordance with Rule 1925(c)(4) indicating her intent to
withdraw. The court issued a Rule 1925(a) opinion stating that it had no
issues to address based on counsel’s notice.
As mentioned, Attorney Weisenberger has filed an application to
withdraw in this Court. Preliminarily, we address the court’s appointment of
appellate counsel despite permitting PCRA counsel to withdraw pursuant to
Turner/Finley. This Court has explained:
Commonwealth v. Maple, 559 A.2d 953 (Pa.Super. 1989), forbids appointment of new counsel where a proper Turner/Finley no-merit letter has been accepted and counsel was permitted to withdraw. Maple, 559 A.2d at 956 (“[W]hen counsel has been appointed to represent a petitioner in post-conviction proceedings as a matter of right under the rules of criminal procedure and when that right has been fully vindicated by counsel being permitted to withdraw under the procedure authorized in Turner, new counsel shall not be appointed and the petitioner, or appellant, must thereafter look to his or her own resources for whatever further proceedings there might be.”)
Commonwealth v. Williams, 204 A.3d 489, 493 (Pa.Super. 2019) (cleaned
up, citations altered). Accordingly, because the PCRA court granted Attorney
Cooper’s application to withdraw, it had no authority to appoint Attorney
Weisenberger to pursue Appellant’s PCRA appeal. Thus, we grant her
application to withdraw.
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Having granted counsel’s request, this Court must now “determine
whether the appellant has been given the opportunity to proceed on his own
behalf.” Id. at 494 (cleaned up). Appellant did not respond to Attorney
Cooper’s Turner/Finley letter or the court’s Rule 907 notice, despite being
advised of his right to do so. He did, however, submit a pro se response to
Attorney Weisenberger’s filing arguing that his sentence is excessive and the
court failed to consider the effects of his prescription and narcotic drug use.
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J-S22027-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY TYLER FOX : : Appellant : No. 1175 MDA 2024
Appeal from the PCRA Order Entered August 2, 2024 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001077-2022
BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 13, 2025
Anthony Tyler Fox appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). In this Court, Kristen L.
Weisenberger, Esquire, has filed a petition to withdraw as Appellant’s counsel
and a brief styled pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 We affirm the
order and grant counsel’s application to withdraw.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Withdrawal of counsel in PCRA appeals is governed not by Anders, but Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Typically, based on the heighted protection afforded by Anders, “this Court may accept an Anders brief in lieu of a Turner/Finely letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011). However, due to our disposition, there is no cause to analyze whether Attorney Weisenberger’s filing comports with Turner/Finley. J-S22027-25
This matter arises from Appellant’s open guilty plea to: four counts each
of rape of a child, corruption of minors, and unlawful contact with a minor;
three counts of aggravated indecent assault; and one count each of
involuntary deviate sexual intercourse with a child, indecent assault with a
person less than thirteen years of age, incest with a minor under thirteen
years of age, indecent exposure, possession of child pornography, and
criminal use of a communication facility. Appellant committed these crimes
against multiple victims, including his biological daughter, who at the time was
between six and seven years old, and recorded the assaults on his cell phone.
Prior to sentencing, plea counsel provided the court with a sentencing
memorandum containing a lengthy report authored by Frank M. Dattilio,
Ph.D., who interviewed Appellant. Dr. Dattilio expounded upon Appellant’s
claim that the combination of medication and narcotics he took during the
period that he committed his crimes caused him to black out and lose memory.
See Sentencing Memorandum, 6/24/22, at 8-14. At the ensuing sentencing
hearing, the court conducted a colloquy, allowed Appellant to exercise his right
to allocution, and ultimately sentenced him to seventy-nine to one hundred
and fifty-eight years in prison.
Appellant filed an unsuccessful post-sentence motion, alleging that his
sentence was excessive. This Court affirmed Appellant’s judgment of sentence
on appeal, rejecting Appellant’s argument that the sentencing court failed to
adequately weigh mitigating evidence such as his mental illness or the effects
-2- J-S22027-25
of his drug and alcohol use. See Commonwealth v. Fox, 303 A.3d 746,
2023 WL 4446365 (Pa.Super. 2023) (non-precedential decision).
Subsequently, Appellant submitted the instant timely pro se PCRA petition.
He alleged that plea counsel was ineffective for neglecting to inform him that
his sentence could have been negotiated, and that counsel failed to adequately
investigate the side effects of the drugs Appellant consumed during the period
that he committed the crimes. See PCRA Petition, 12/1/23, at ¶¶ 4, 6.
Andrew Cooper, Esquire, was appointed, and he filed a letter pursuant
to Turner/Finley seeking to withdraw. Counsel confirmed that he reviewed
the record and determined that Appellant’s challenges to plea counsel’s
effectiveness were meritless. See Turner/Finley letter, 5/30/24, at 1-3
(pagination provided). Attorney Cooper sent a copy of the letter to Appellant
and informed him that he had the right to proceed pro se or with privately
retained counsel. Id. at 3.
The PCRA court issued a Pa.R.Crim.P. 907 notice informing Appellant of
its intent to dismiss the petition without a hearing because it found that his
claims were without merit and granting Attorney Cooper’s application to
withdraw. The court further informed Appellant of his right to respond to the
notice within twenty days. Appellant did not reply, and thus the court
dismissed the petition. In the dismissal order, the court also advised Appellant
that if he intended to appeal, “he must do so pro se or with privately retained
counsel” within thirty days. See Order, 8/2/24.
-3- J-S22027-25
This timely pro se appeal followed. Despite the PCRA court’s previous
directive, it appointed Attorney Weisenberger to represent Appellant in this
appeal. In response to the court’s Pa.R.A.P. 1925(b) order, counsel filed a
statement in accordance with Rule 1925(c)(4) indicating her intent to
withdraw. The court issued a Rule 1925(a) opinion stating that it had no
issues to address based on counsel’s notice.
As mentioned, Attorney Weisenberger has filed an application to
withdraw in this Court. Preliminarily, we address the court’s appointment of
appellate counsel despite permitting PCRA counsel to withdraw pursuant to
Turner/Finley. This Court has explained:
Commonwealth v. Maple, 559 A.2d 953 (Pa.Super. 1989), forbids appointment of new counsel where a proper Turner/Finley no-merit letter has been accepted and counsel was permitted to withdraw. Maple, 559 A.2d at 956 (“[W]hen counsel has been appointed to represent a petitioner in post-conviction proceedings as a matter of right under the rules of criminal procedure and when that right has been fully vindicated by counsel being permitted to withdraw under the procedure authorized in Turner, new counsel shall not be appointed and the petitioner, or appellant, must thereafter look to his or her own resources for whatever further proceedings there might be.”)
Commonwealth v. Williams, 204 A.3d 489, 493 (Pa.Super. 2019) (cleaned
up, citations altered). Accordingly, because the PCRA court granted Attorney
Cooper’s application to withdraw, it had no authority to appoint Attorney
Weisenberger to pursue Appellant’s PCRA appeal. Thus, we grant her
application to withdraw.
-4- J-S22027-25
Having granted counsel’s request, this Court must now “determine
whether the appellant has been given the opportunity to proceed on his own
behalf.” Id. at 494 (cleaned up). Appellant did not respond to Attorney
Cooper’s Turner/Finley letter or the court’s Rule 907 notice, despite being
advised of his right to do so. He did, however, submit a pro se response to
Attorney Weisenberger’s filing arguing that his sentence is excessive and the
court failed to consider the effects of his prescription and narcotic drug use.
Therefore, we proceed to analyze this claim. See Maple, 559 A.2d at 957
(“Concerning the appeal itself, because Turner[/Finley] does not require an
independent review of the record to determine whether the claims sought to
be raised are frivolous, we will treat this appeal as we would any other and
limit our review to those issues which have been properly preserved and
argued to us.”).
We begin our review with the applicable law. This Court’s assessment
of the dismissal of a PCRA petition is “to determine whether the record
supports the PCRA court’s findings and whether its order is free of legal error.”
Commonwealth v. Min, 320 A.3d 727, 730 (Pa.Super. 2024). We grant
great deference to the PCRA court’s factual findings, but review its legal
conclusions de novo. See Commonwealth v. Yaw, 305 A.3d 1068, 1078
(Pa.Super. 2023). Appellant has the burden “to persuade us that the PCRA
court erred and that relief is due.” Commonwealth v. Stansbury, 219 A.3d
157, 161 (Pa.Super. 2019) (cleaned up). To be eligible for relief, he must
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demonstrate that “the allegation of error has not been previously litigated.”
42 Pa.C.S. § 9543(a)(3). A previously litigated issue is one that “the highest
appellate court in which the petitioner could have had review as a matter of
right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2).
In Appellant’s pro se response to Attorney Weisenberger’s filing, he
claims that his sentence is excessive. See Pro Se Response, 1/5/25, at 4.
The combined side effects of the prescription and narcotic drugs he took
during the period that he committed the assaults, Appellant explains,
“correlate directly with the offenses that took place.” Id. at 3. He alleges
that if the “distortion” caused by the concoction of his drugs was “properly
investigated” by the court prior to sentencing, it would have issued a less
severe sentence. Id. at 2-4.
Appellant’s excessive sentencing claim has been previously raised and
resolved on direct appeal. See Fox, 2023 WL 4446365. Following our
disposition, Appellant did not seek permission to appeal to our Supreme Court.
He has thus exhausted his remedies on this issue, and we may not address it.
See 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(a)(2). Having raised no
issue meriting relief, we affirm the PCRA court’s dismissal of his PCRA petition.
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Petition of Kristen L. Weisenberger, Esquire, to withdraw as counsel
granted. Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 08/13/2025
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