J-S65021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENISE D. WHITE
Appellant No. 3563 EDA 2013
Appeal from the Judgment of Sentence November 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009139-2009
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 25, 2014
Appellant, Denise D. White, appeals from the judgment of sentence
entered on November 22, 2013, as made final by the denial of Appellant’s
post-sentence motion on December 5, 2013. On this direct appeal,
Appellant’s court-appointed counsel has filed both a petition to withdraw as
counsel and an accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).1 We conclude that Appellant’s counsel has complied with the
procedural requirements necessary to affect withdrawal. Moreover, after
independently reviewing the record, we conclude that the instant appeal is
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1
See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
*Retired Senior Judge assigned to the Superior Court.
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wholly frivolous. We therefore grant counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
On January 7, 2013, Appellant entered an open guilty plea to
aggravated assault and endangering the welfare of a child.2 During the plea
colloquy, Appellant admitted that she was pleading guilty to both charges
because she was, “in fact, guilty of those offenses.” N.T. Guilty Plea
Hearing, 1/7/13, at 26. Further, Appellant admitted that, if the case went to
trial, the Commonwealth would be able to prove, beyond a reasonable
doubt, the facts underlying the crimes. Id. at 25-27. Specifically, Appellant
admitted to the following underlying facts: on January 16, 2009, Appellant
was inside her Philadelphia house when she immersed her seven-month-old
son in a vase full of boiling water, inflicting upon her son “substantial third
degree burns to [25] percent of his lower back, [as well as to his] abdomen,
genitalia, [and] upper thighs.” Id. at 11-22. During the colloquy, Appellant
also admitted that, at some point in the prior two months, her son had
sustained blunt force trauma to the head; this blunt force trauma resulted in
her son suffering a “chronic subdural hematoma with two [] skull fractures.”
Id. at 11-22.
Prior to pleading guilty, Appellant read and signed a detailed, five-page
written guilty plea statement. See Written Guilty Plea Statement, 1/7/13, at
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2
18 Pa.C.S.A. §§ 2702(a)(1) and 4304(a)(1), respectively.
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1-5. Moreover, prior to accepting Appellant’s plea, the trial court conducted
a lengthy and inclusive oral colloquy. N.T. Guilty Plea Hearing, 1/7/13, at 3-
27. After the colloquy, the trial court found, as a fact, that Appellant’s plea
was “knowing[ly], voluntary[ily], and intelligent[ly]” entered. Id. at 27.
Therefore, the trial court accepted Appellant’s plea and deferred sentencing,
pending a pre-sentence investigation and psychiatric report. Id.
On November 22, 2013, the trial court sentenced Appellant to serve an
aggregate term of two to four years in prison for her convictions. N.T.
Sentencing, 11/22/13, at 36-38. Appellant did not file a motion to withdraw
her plea. Instead, Appellant filed a timely post-sentence motion, wherein
Appellant requested that the trial court “issue an [o]rder modifying
[Appellant’s] sentence, and reducing [her sentence to a term of] 11 ½ to 23
month[s]” in county jail. Appellant’s Post-Sentence Motion, 12/2/13, at 1-2.
The trial court denied Appellant’s post-sentence motion on December 5,
2013 and Appellant filed a timely notice of appeal to this Court.
On appeal, Appellant’s court-appointed counsel has filed a petition for
leave to withdraw and has accompanied this petition with an Anders brief.
Within the Anders brief, Appellant essentially claims: that the Philadelphia
Court of Common Pleas did not have jurisdiction over her case; that she
should have been permitted to withdraw her plea, as her plea was
involuntary; that her plea counsel was ineffective for failing to fully advise
her of the consequences of pleading guilty; and, that her sentence is illegal.
See Appellant’s Brief at 8-9.
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Before reviewing the merits of this appeal, this Court must first
determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “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.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in
which counsel:
(1) provide[s] a summary of the procedural history and
facts, with citations to the record; (2) refer[s] to anything in
the record that counsel believes arguably supports the
appeal; (3) set[s] forth counsel’s conclusion that the appeal
is frivolous; and (4) state[s] 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.
Finally, counsel must furnish a copy of the Anders brief to her client
and advise the client “of [the client’s] right to retain new counsel, proceed
pro se or raise any additional points worthy of this Court’s attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
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proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel has met all of the above procedural
obligations.3 We must, therefore, review the entire record and analyze
whether this appeal is, in fact, wholly frivolous. Our analysis begins with the
issues raised in the Anders brief.
Appellant first claims that the Philadelphia County Court of Common
Pleas did not have jurisdiction over her case. This claim is frivolous.
18 Pa.C.S.A. § 102 establishes the territorial applicability of
Pennsylvania’s Crimes Code. In relevant part, this section provides:
(a) General rule. – Except as otherwise provided in this
section, a person may be convicted under the law of this
Commonwealth of an offense committed by his own conduct
or the conduct of another for which he is legally accountable
if []:
(1) the conduct which is an element of the offense or
the result which is such an element occurs within this
Commonwealth[.]
18 Pa.C.S.A. § 102(a).
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3
Appellant has not responded to counsel’s petition to withdraw.
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In the case at bar, Appellant admitted that the crimes to which she
pleaded guilty occurred in her Philadelphia house. See N.T. Guilty Plea
Hearing, 1/7/13, at 18. Since “each court of common pleas within this
Commonwealth possesses the same subject matter jurisdiction to resolve
cases arising under the Pennsylvania Crimes Code,” and since Appellant
admitted that the crimes to which she pleaded guilty occurred in
Philadelphia, the Philadelphia Court of Common Pleas undoubtedly possessed
subject matter jurisdiction to resolve Appellant’s criminal case.
Commonwealth v. Bethea, 828 A.2d 1066, 1075 (Pa. 2003). Appellant’s
claim to the contrary is frivolous.
Next, Appellant claims that she should have been permitted to
withdraw her guilty plea, as her plea was involuntary. This claim is waived,
as Appellant failed to raise this claim before the trial court.
Under our rules and precedent, “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). Therefore, to preserve a challenge to a guilty plea, the individual
must raise the issue prior to sentencing, at sentencing, or in a post-sentence
motion. Failing this, the challenge is waived. Commonwealth v. Tareila,
895 A.2d 1266, 1270 n.3 (Pa. Super. 2006); Commonwealth v.
D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002). In the case at bar,
Appellant failed to confront the trial court with any challenge to her guilty
plea. The current issue is thus waived.
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For her third issue on appeal, Appellant claims that her counsel was
ineffective for failing to fully advise her of the consequences of pleading
guilty. This claim is unreviewable on direct appeal. Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general rule, a [defendant]
should wait to raise claims of ineffective assistance of trial counsel until
collateral review”); Commonwealth v. Holmes, 79 A.3d 562, 620 (Pa.
2013) (“absent [certain, specified] circumstances [(that are inapplicable to
the case at bar)] claims of ineffective assistance of counsel are to be
deferred to PCRA review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal”).
Finally, Appellant claims that her sentence was illegal. This claim is
frivolous, as Appellant admits that her sentence was “at the lowest part of
the minimum of the [sentencing] guidelines.” Appellant’s Brief at 9.
Therefore, since Appellant’s sentence does not exceed the statutory
maximum term, Appellant’s final claim on appeal is frivolous.
We have thus independently considered the issues raised within the
Anders brief and have determined that they are frivolous, waived, or
unreviewable on direct appeal. In addition, after an independent review of
the entire record, we see nothing that might arguably support this appeal.
The appeal is therefore wholly frivolous. Accordingly, we affirm Appellant’s
judgment of sentence and grant counsel’s petition to withdraw appearance.
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Petition to withdraw appearance granted. Judgment of sentence
affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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