Com. v. Gilbert, A.
CourtSuperior Court of Pennsylvania
Date FiledOctober 20, 2026
Docket884 WDA 2025
JudgeSullivan
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW JAMES GILBERT :
:
Appellant : No. 884 WDA 2025
Appeal from the Judgment of Sentence Entered June 17, 2025
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001340-2021
BEFORE: SULLIVAN, J., NEUMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SULLIVAN, J.: FILED: October 20, 2026
Andrew James Gilbert (“Gilbert”) appeals from the judgment of sentence
following his open guilty plea to, inter alia, possession of a controlled
substance with intent to deliver (“PWID”).1 Additionally, Gilbert’s counsel
(“Counsel”) has filed a petition to withdraw and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Because Gilbert’s
appellate issues are frivolous and our independent review discloses no non-
frivolous appellate issues, we grant Counsel’s petition to withdraw and affirm.
We glean the relevant factual and procedural history from the trial
court’s opinion as follows. In April 2020, Murrysville police found Gilbert
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* Former Justice specially assigned to the Superior Court.
1 See 35 P.S. § 780-113(a)(30).
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unconscious and slumped over his steering wheel at the Murrysville Sheetz.
After obtaining a search warrant, police found in Gilbert’s vehicle narcotics,
including 1,000 or more grams of methamphetamine, as well as marijuana
and multiple Xanax pills; drug paraphernalia, including packaging material,
needles, and baggies; and more than $4,000 in cash. A toxicology report
confirmed the presence of amphetamine and methamphetamine in Gilbert’s
blood samples collected at Forbes Regional Hospital. See Trial Court Opinion,
9/3/25, at 1-2.
In May 2021, the Commonwealth filed a Criminal Information in this
case, charging Gilbert with the aforementioned PWID and the following
offenses: dealing in the proceeds of illegal activity, driving under the influence
of alcohol or controlled substance (“DUI”), possession of drug paraphernalia,
possession or distribution of a small amount of marijuana, and three counts
of possession of a controlled substance.2 Gilbert later entered an open guilty
plea in January 2025 to PWID and DUI;3 the trial court deferred sentencing
for the preparation of a presentence investigation report. In June 2025, the
court sentenced Gilbert to, inter alia, a standard-range sentence of five to ten
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2 18 Pa.C.S.A. § 5111; 75 Pa.C.S.A. § 3802(d)(1); 35 P.S. § 780-113(a)(32);
35 P.S. § 780-113(a)(31); 35 P.S. § 780-113(a)(16).
3 As part of Gilbert’s plea, the Commonwealth nolle prosed the remaining
charges. See N.T., 1/30/25, at 2.
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years of imprisonment for PWID. Gilbert timely appealed. See id. Both
Gilbert and the trial court complied with Pa.R.A.P. 1925.4
As noted above, Counsel has filed an application to withdraw along with
an Anders brief. 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. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.
2010). Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(internal citation omitted). In Santiago, our Supreme Court addressed the
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4 While the trial court ordered Gilbert to file a Rule 1925(b) statement of errors
complained of on appeal, no such statement appears in the certified record.
However, the court’s Rule 1925(a) opinion addresses the issues raised in
Gilbert’s concise statement, and no party involved asserts Gilbert waived his
appellate issues for failure to file a Rule 1925(b) statement. Therefore, this
omission in the record does not impede our review. We remind Counsel that
Pa.R.A.P. 2111(d) requires appellants to append to their brief a copy of their
Rule 1925(b) statement. Additionally, the ultimate responsibility for a
complete record rests with the party raising an issue that requires appellate
court access to record materials. See Note to Pa.R.A.P. 1921.
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second requirement of Anders, i.e., the contents of an Anders brief, and
required that the brief:
(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.
Santiago, 978 A.2d at 361. Once counsel has satisfied these technical
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. See Commonwealth v. Yorgey, 188
A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Here, Counsel has filed a petition to withdraw stating that after an
extensive review of the record and applicable law, he has concluded that this
appeal is wholly frivolous. See Petition to Withdraw, 1/22/26, at ¶ 7. Counsel
has also filed a brief, provided it to Gilbert, and has advised Gilbert of his right
to proceed in this appeal with private counsel or pro se, and to present to this
Court any other information or documentation relevant to his appeal. See id.
(attached letter from Counsel to Gilbert). Counsel’s Anders brief includes a
summary of the factual procedural history of the appeal and explains his
reasons for concluding that the appeal is wholly frivolous. See Anders Brief
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at 8-14. Thus, we conclude that Counsel has complied with the technical
requirements of Anders and Santiago, and we will proceed with an
independent review of whether this appeal is frivolous.
Counsel identifies the following issues for our review:
1. WHETHER THE COURT ERRED BY FAILING TO CONSIDER
[GILBERT’S] REFORMED CHARACTER[ AND] HIS
REHABILITATIVE NEEDS WHEN FASHIONING THE SENTENCE?
2. WAS [GILBERT] DENIED TO [SIC] EFFECTIVE ASSISTANCE OF
COUNSEL BY HIS PRIOR COUNSEL?
Anders Brief at 7.
In his first intended issue, Gilbert raises a challenge to the discretionary
aspects of his sentence. Before this Court may review the issue on the merits,
we must first determine whether Gilbert has properly invoked this Court’s
jurisdiction over this issue.
This Court has explained the relevant law as follows:
[A]n appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code.
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa. Super. 2019)
(citation omitted; brackets in original); see also 42 Pa.C.S.A. § 9781(b).
As stated above, Gilbert’s appeal is timely. In an Anders context, this
Court has not required a separate Rule 2119(f) statement. See
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Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015). As such
we look to whether Gilbert has preserved his issue. We note that at the
sentencing hearing, Gilbert made no objection following imposition of the
sentence. See N.T., 7/10/25, at 27-32. Additionally, Gilbert filed no post-
sentence motion in which he raised a claim with respect to the discretionary
aspects of his sentence. As such, Gilbert failed to preserve his challenge to
the discretionary aspects of his sentence. See Padilla-Vargas, 204 A.3d at
975.5 Accordingly, this issue is wholly frivolous.6
Counsel next identifies a claim of ineffectiveness against “former
counsel” who represented Gilbert. But “because this case is on direct appeal,
. . . a claim of ineffective assistance of counsel must be raised in a timely filed
PCRA petition.” See Layton, 2026 WL 2150809 at *3 n.3.7 Accordingly, this
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5 See also Trial Court Opinion, 9/2/25, at 3-4 (concluding Gilbert failed to
preserve this issue for failure to object at sentencing or file a post-sentence
motion).
6 We recognize the failure to file a post-sentence motion, thereby foreclosing
in its entirety a direct appeal, presents a viable claim for ineffectiveness
against Gilbert’s attorney. See, e.g., Commonwealth v. Layton, Nos. 2293
EDA 2025, 2294 EDA 2025, 2026 WL 2150809 (Pa. Super. July 27, 2026)
(unpublished memorandum at *3 n.3); see also Pa.R.A.P. 126(b). However,
as discussed below, this claim must be deferred to collateral review. See
Layton, 2026 WL 2150809 at *3 n.3.
7 There are two limited exceptions to the general rule that ineffectiveness
claims are to be deferred to collateral review: (1) the trial court considers the
claim and concludes it is both meritorious and apparent from the record and
so immediate consideration and relief is warranted; or (2) there is good cause
shown for the review and the appellant waives his right to PCRA review. See
(Footnote Continued Next Page)
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issue is not reviewable at this stage in the litigation, and the challenge, for
purposes of direct appeal, is wholly frivolous.
Because Gilbert has raised no non-frivolous grounds for appeal, and our
independent review has uncovered no other non-frivolous claims, we affirm
the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw granted.
10/20/2026
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Commonwealth v. Watson, 310 A.3d 307, 310-11 (Pa. Super. 2024).
Neither exception applies here. Accord Commonwealth v. Alameda, 339
A.3d 504, 511 (Pa. Super. 2025).
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