J-S05024-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NIKYLE GILLIAM : : Appellant : No. 212 EDA 2024
Appeal from the Judgment of Sentence Entered December 6, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003680-2021
BEFORE: BOWES, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 28, 2025
Nikyle Gilliam (Appellant) appeals from the judgment of sentence
imposed following his nonjury convictions of sexual assault, indecent assault,
and indecent exposure.1 Appellant’s counsel (Counsel) has filed in this Court
a petition to withdraw as counsel and an accompanying brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 249 (Pa. 2009). We deny Counsel’s petition to withdraw
and remand with instructions.
Based on our disposition, we need not extensively discuss the factual
history of this appeal. Briefly, Appellant assaulted the complainant, T.C., a
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3124.1, 3126(a)(1), 3127. J-S05024-25
woman he had met on Tinder. Following a bench trial on June 26, 2023,
Appellant was convicted of the above-described offenses. On August 22,
2023, prior to sentencing, Appellant filed a motion for extraordinary relief,
challenging his convictions as against the weight of the evidence. The trial
court denied Appellant’s motion. On December 6, 2023, the trial court
sentenced Appellant to an aggregate 2½ to 6 years in prison, followed by 3
years’ probation.
This timely appeal followed. On August 23, 2024, Counsel filed in this
Court a petition to withdraw from representation and an Anders brief.
Appellant did not retain separate counsel or file a response raising any
additional issues.
We address Counsel’s petition to withdraw before considering the issues
raised in the Anders brief. See Commonwealth v. Garang, 9 A.3d 237,
240 (Pa. Super. 2010) (“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.” (citation omitted)). Counsel seeking to withdraw
from representation 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.
-2- J-S05024-25
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also
(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.
Id. (citing Santiago, 978 A.2d at 361). “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.”
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). Once
counsel has complied with the procedural requirements, we review the record
and render an independent judgment as to whether the appeal is wholly
frivolous. See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc).
Instantly, Counsel filed an Anders brief and a separate petition to
withdraw from representation. Counsel stated he made a conscientious
examination of the record and concluded Appellant’s appeal is frivolous. See
Petition to Withdraw, 8/23/24; see also Anders Brief at 9. Additionally,
Counsel sent a letter to Appellant informing him of Counsel’s intention to
withdraw, and advising Appellant of his right to retain new counsel or proceed
-3- J-S05024-25
pro se to raise additional claims.2 The record reflects that Counsel furnished
Appellant with copies of the petition to withdraw and the Anders brief.
However, we conclude the substance of Counsel’s Anders brief is
deficient. The Anders brief summarizes the factual and procedural history of
this appeal. Counsel also identified three issues challenging (1) the sufficiency
of the evidence; (2) the weight of the evidence; and (3) the denial of
Appellant’s motion for extraordinary relief. See Anders Brief at 4.
Despite identifying these issues in the statement of questions involved,
the argument section of the Anders brief is not appropriately divided to
include discussion of all three claims. See Pa.R.A.P. 2119(a) (“The argument
shall be divided into as many parts as there are questions to be argued….”).
Instead, Counsel merely recites this Court’s standards of review for addressing
sufficiency and weight claims, conflating those distinct standards in the
process. Counsel summarily states that the trial court found the complainant’s
testimony credible, and the alleged inconsistencies in the complainant’s
testimony did not shock its conscience. See Anders Brief at 7-8. Counsel
thus concludes Appellant’s weight claim lacks merit, but fails to discuss
Appellant’s sufficiency claim.
2 This letter was not included in Counsel’s original filings with this Court. On December 27, 2024, this Court issued an order directing Counsel to submit to this Court a copy of the letter he sent to Appellant, along with proof of service. Counsel promptly complied.
-4- J-S05024-25
Nor does the Anders brief refer to anything in the record that Counsel
believes arguably supports the appeal. The argument section of the Anders
brief includes only a single citation to the record. Though the factual and
procedural history recited in the Anders brief include citations to the notes of
testimony, we emphasize that the certified record does not include the
transcript from either Appellant’s bench trial or his sentencing. Additionally,
there is no indication from the record that Counsel requested any of the notes
of testimony. “Without these notes of testimony, Counsel could not have
fulfilled his duty to review the entire record for any non-frivolous issues.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015);
Commonwealth v. Vilsaint, 893 A.2d 753, 757-58 (Pa. Super. 2006)
(denying counsel’s motion to withdraw where the relevant transcripts were
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J-S05024-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NIKYLE GILLIAM : : Appellant : No. 212 EDA 2024
Appeal from the Judgment of Sentence Entered December 6, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003680-2021
BEFORE: BOWES, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 28, 2025
Nikyle Gilliam (Appellant) appeals from the judgment of sentence
imposed following his nonjury convictions of sexual assault, indecent assault,
and indecent exposure.1 Appellant’s counsel (Counsel) has filed in this Court
a petition to withdraw as counsel and an accompanying brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 249 (Pa. 2009). We deny Counsel’s petition to withdraw
and remand with instructions.
Based on our disposition, we need not extensively discuss the factual
history of this appeal. Briefly, Appellant assaulted the complainant, T.C., a
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3124.1, 3126(a)(1), 3127. J-S05024-25
woman he had met on Tinder. Following a bench trial on June 26, 2023,
Appellant was convicted of the above-described offenses. On August 22,
2023, prior to sentencing, Appellant filed a motion for extraordinary relief,
challenging his convictions as against the weight of the evidence. The trial
court denied Appellant’s motion. On December 6, 2023, the trial court
sentenced Appellant to an aggregate 2½ to 6 years in prison, followed by 3
years’ probation.
This timely appeal followed. On August 23, 2024, Counsel filed in this
Court a petition to withdraw from representation and an Anders brief.
Appellant did not retain separate counsel or file a response raising any
additional issues.
We address Counsel’s petition to withdraw before considering the issues
raised in the Anders brief. See Commonwealth v. Garang, 9 A.3d 237,
240 (Pa. Super. 2010) (“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.” (citation omitted)). Counsel seeking to withdraw
from representation 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.
-2- J-S05024-25
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also
(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.
Id. (citing Santiago, 978 A.2d at 361). “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.”
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). Once
counsel has complied with the procedural requirements, we review the record
and render an independent judgment as to whether the appeal is wholly
frivolous. See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc).
Instantly, Counsel filed an Anders brief and a separate petition to
withdraw from representation. Counsel stated he made a conscientious
examination of the record and concluded Appellant’s appeal is frivolous. See
Petition to Withdraw, 8/23/24; see also Anders Brief at 9. Additionally,
Counsel sent a letter to Appellant informing him of Counsel’s intention to
withdraw, and advising Appellant of his right to retain new counsel or proceed
-3- J-S05024-25
pro se to raise additional claims.2 The record reflects that Counsel furnished
Appellant with copies of the petition to withdraw and the Anders brief.
However, we conclude the substance of Counsel’s Anders brief is
deficient. The Anders brief summarizes the factual and procedural history of
this appeal. Counsel also identified three issues challenging (1) the sufficiency
of the evidence; (2) the weight of the evidence; and (3) the denial of
Appellant’s motion for extraordinary relief. See Anders Brief at 4.
Despite identifying these issues in the statement of questions involved,
the argument section of the Anders brief is not appropriately divided to
include discussion of all three claims. See Pa.R.A.P. 2119(a) (“The argument
shall be divided into as many parts as there are questions to be argued….”).
Instead, Counsel merely recites this Court’s standards of review for addressing
sufficiency and weight claims, conflating those distinct standards in the
process. Counsel summarily states that the trial court found the complainant’s
testimony credible, and the alleged inconsistencies in the complainant’s
testimony did not shock its conscience. See Anders Brief at 7-8. Counsel
thus concludes Appellant’s weight claim lacks merit, but fails to discuss
Appellant’s sufficiency claim.
2 This letter was not included in Counsel’s original filings with this Court. On December 27, 2024, this Court issued an order directing Counsel to submit to this Court a copy of the letter he sent to Appellant, along with proof of service. Counsel promptly complied.
-4- J-S05024-25
Nor does the Anders brief refer to anything in the record that Counsel
believes arguably supports the appeal. The argument section of the Anders
brief includes only a single citation to the record. Though the factual and
procedural history recited in the Anders brief include citations to the notes of
testimony, we emphasize that the certified record does not include the
transcript from either Appellant’s bench trial or his sentencing. Additionally,
there is no indication from the record that Counsel requested any of the notes
of testimony. “Without these notes of testimony, Counsel could not have
fulfilled his duty to review the entire record for any non-frivolous issues.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015);
Commonwealth v. Vilsaint, 893 A.2d 753, 757-58 (Pa. Super. 2006)
(denying counsel’s motion to withdraw where the relevant transcripts were
not part of the record, and there was no indication that counsel ordered the
transcripts); see also Commonwealth v. Martz, 926 A.2d 514, 525 (Pa.
Super. 2007) (“It is [] well-settled … that it is [an a]ppellant’s responsibility
to supply this Court with a complete record for purposes of review.”). The
absence of the transcripts from the certified record similarly impedes this
Court’s ability to conduct its independent review. See Vilsaint, 893 A.2d at
757 (stating that counsel’s failure to fulfill the requirements of Anders, and
to provide a complete record on appeal, denied “this Court the ability to fully
comply with our obligation to review the entire record”).
-5- J-S05024-25
Based on the foregoing, “we are not assured, as Anders requires, that
“[C]ounsel fully performed his duty as [Appellant’s] advocate to independently
search the record as a trained advocate with an eye to uncovering appealable
error before concluding [his] appeal was frivolous.” Santiago, 978 A.2d at
177. We therefore deny Counsel’s petition to withdraw and remand with
instructions for Counsel to obtain the notes of testimony and make certain
they are part of the certified record. Following a review of the complete
record, and within 30 days of the filing of this memorandum, Counsel
shall file either a proper petition to withdraw and Anders brief, or an
advocate’s brief. See Flowers, 113 A.3d at 1250-51 (remanding with
instructions for counsel to obtain relevant transcripts and to file an advocate’s
brief or another Anders brief and petition to withdraw). Thereafter, the
Commonwealth shall have 30 days to file a responsive brief.
Petition to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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