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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH KWAHA
Appellant No. 2773 EDA 2014
Appeal from the Judgment of Sentence August 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001941-2013
CP-51-CR-0001943-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 11, 2015
Appellant, Joseph Kwaha, appeals from the judgment of sentence
entered on August 12, 2014, after he pled guilty in an open guilty plea to
charges of aggravated assault, accident involving death or personal injury,
and possession of an instrument of crime (“PIC”).1 He also pled guilty to
charges of possession of controlled substance with intent to deliver,
possession of firearm – prohibited, and fleeing or attempting to elude
officer.2 Additionally, Kwaha’s court appointed counsel, Stanley R. Krakower,
Esquire, has filed an application to withdraw as counsel pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
____________________________________________
1
All charges docketed at CP-51-CR-1941-2013.
2
All charges docketed at CP-51-CR-1943-2013.
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A.2d 349 (Pa. 2009). We remand for further proceedings consistent with this
memorandum.
Police observed a car (the driver of which was later identified as
Kwaha) ignore a stop sign. The police attempted to pull the car over, but
Kwaha fled. While fleeing from the police, Kwaha struck a pedestrian with his
car, shattering the victim’s pelvis. Kwaha then drove into a telephone poll,
starting a fire that disabled electricity service to the neighborhood. Kwaha
then exited the vehicle and ran. Officers caught Kwaha and subdued him
after a brief fight.
Pursuant to a search incident to arrest, officers found multiple packets
of heroin, crack cocaine, and marijuana as well as $461 in cash on his
person. They also recovered a handgun from the floor of the car.
Following a colloquy, Kwaha pled guilty to the counts set forth above.
That same day, the court sentenced Kwaha to two years of probation for his
PIC and fleeing and eluding convictions. The court then recessed to allow for
the preparation of a presentence investigation report. After receiving the
report, Kwaha was sentenced to an aggregate sentence of nine and a half to
twenty years’ incarceration for his aggravated assault conviction, as well as
$9,112.92 in restitution. Kwaha did not file any post sentence motions or a
motion to withdraw his guilty plea.
Kwaha filed a timely appeal. After trial counsel was permitted to
withdraw, and new counsel was appointed, a second order directing counsel
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to file a 1925(b) statement was filed. As of this date, no 1925(b) statement
or motion for extension has been filed.
A defendant’s failure to file a concise statement of errors in compliance
with Rule 1925 generally results in a waiver of all issues on appeal. See
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998); Commonwealth v.
Castillo, 888 A.2d 775 (Pa. 2005). However, our Supreme Court has
previously recognized that a remedy is needed in circumstances where
counsel fails to file a Rule 1925 statement:
[W]hen all of a criminal defendant's issues are waived on direct
appeal under Lord due to his attorney's failure to file a
Pa.R.A.P.1925(b) statement, we will presume that the defendant
suffered prejudice due to the denial of effective assistance of
counsel. As counsel's actions […] resulted in the denial of the
criminal defendant's right to a direct appeal, we held that the
appropriate remedy was to reinstate the defendant's right to
pursue a direct appeal.
Castillo, 888 A.2d at 780. Indeed, Rule 1925(c)(3) provides that
[i]f an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate court is
convinced that counsel has been per se ineffective, the appellate
court shall remand for the filing of a Statement nunc pro tunc
and for the preparation and filing of an opinion by the judge.
Here, counsel’s failure to file a Rule 1925 statement constitutes per se
ineffectiveness and deprived Kwaha of meaningful review of his appeal. In
order to restore a defendant’s rights on appeal, the most effective means is
to remand for counsel to file a concise statement. See Commonwealth v.
McBride, 957 A.2d 752, 756 (Pa. Super. 2008).
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However, it is notable that Kwaha’s counsel submitted a brief and a
petition to withdraw pursuant to Anders. When court-appointed counsel
seeks to withdraw from representation on appeal, counsel must meet the
following requirements.
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once counsel
has met his obligations, “it then becomes the responsibility of the reviewing
court to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.” Id., at 355 n.5 (citation omitted).
Counsel has substantially complied with the technical requirements of
Anders as articulated in Santiago. Additionally, counsel confirmed that he
sent a copy of the Anders brief to Kwaha, as well as a letter explaining to
Kwaha that he has the right to proceed pro se or the right to retain new
counsel. Kwaha has not filed a response.
In regards to the Rule 1925(b) statement, pursuant to the recent
amendments of that rule, if counsel intends to submit an Anders brief, the
proper procedure is provided in Pa.R.A.P. 1925(c)(4). At the time the trial
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court directed counsel to file a concise statement he could have either (1)
complied with the order and filed a Rule 1925(b) statement or (2) filed a
statement of intent to file an Anders brief. See McBride, 957 A.2d at 757;
Pa.R.A.P. 1925(c)(4). Kwaha’s counsel did neither.
“[A]bsent the proper filing of any statement of record by counsel, this
Court cannot properly consider counsel’s request to withdraw.” McBride,
957 A.2d at 758. See also Pa.R.A.P. 1925(c)(4) Note. Accordingly, we
remand for the filing of either a concise statement of matters complained of
on appeal pursuant to Pa.R.A.P. 1925(b) or a statement of intent to file an
Anders brief pursuant to Rule 1925(c)(4). See id. Counsel must choose one
of the two options within fifteen days of the filing of this memorandum.
If counsel files a concise statement of errors complained of on appeal,
the trial court shall, within thirty days, file a Rule 1925(a) opinion. If counsel
files a statement of intent to file an Anders brief, a trial court opinion is not
necessary and the trial court record shall be promptly certified and
transmitted back to this Court.
Remanded for further proceedings consistent with this memorandum.
Panel jurisdiction retained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2015
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