J-S04037-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROGER SCHIMP, :
:
Appellant : No. 528 WDA 2015
Appeal from the Judgment of Sentence March 5, 2015
in the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000044-2014
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 29, 2016
Roger Schimp (Appellant) appeals from his March 5, 2015 judgment of
sentence of an aggregate term of 40 months to ten years of imprisonment
entered following his convictions for various sex offenses. Counsel has filed
a petition to withdraw and a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We deny counsel’s motion to withdraw and remand for counsel to file
an advocate’s brief upon review of the entire record.
Succinctly, the relevant history of the case is as follows. By criminal
information filed February 4, 2014, Appellant was charged with various
crimes in McKean County between 2010 and 2013, including, inter alia,
attempted rape of a child, indecent assault, simple assault, and corruption of
minors. At trial, over Appellant’s objection, the victim testified extensively
*Retired Senior Judge assigned to the Superior Court.
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about acts Appellant committed against her in Kentucky before she and
Appellant moved to Bradford in McKean County. The jury convicted
Appellant of six counts and found him not guilty of 12 others. After a
hearing, the trial court determined that Appellant is a sexually violent
predator (SVP), and on March 5, 2015, Appellant was sentenced as indicated
above. Appellant timely filed a notice of appeal.
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely
complied. Therein, Appellant claimed that the trial court erred in admitting
the evidence of Appellant’s uncharged acts committed in Kentucky because
(1) the Commonwealth failed to give Appellant notice of its intent to do so,
and (2) evidence of Appellant’s wrongs or other acts was inadmissible under
Rule 404(b)(1) of the Pennsylvania Rules of Evidence. In response, the trial
court filed a statement pursuant to Pa.R.A.P. 1925(a) in which it opined: (1)
reference to the Kentucky acts in the affidavit of probable cause provided
Appellant with sufficient notice of the Commonwealth’s intent to introduce
Rule 404 evidence, and (2) the evidence of the prior acts was admissible to
show the sequence of events that formed the history of the case.
In this Court, counsel filed both an Anders brief and a petition to
withdraw as counsel. Accordingly, the following principles guide our review
of this matter.
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Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
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
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[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.
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Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above in that counsel: filed a motion to
withdraw in which he states his opinion that there are no non-frivolous
issues to be raised on appeal; attached a letter to Appellant advising him of
his right to proceed pro se or with retained counsel;1 and filed a brief that
contains a detailed statement of the case, raises three issues that arguably
support an appeal, and expresses counsel’s conclusion that the appeal would
be frivolous with reasons in support thereof. Thus, we now have the
responsibility “‘to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.
2015) (quoting Santiago, 978 A.2d at 354 n. 5).
In his Anders brief, counsel identifies two issues of arguable merit:
(1) a challenge to the admission of evidence of uncharged contact between
Appellant and the victim in Kentucky, based upon both the adequacy of the
notice of the Commonwealth’s intent to introduce such evidence and its
admissibility under Pa.R.E. 404(b); and (2) a challenge to the sufficiency of
the evidence to sustain the convictions. Anders Brief at 17, 23-24.
1
Appellant has not responded to counsel’s petition to withdraw.
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The trial court addressed the arguments concerning the Kentucky
testimony as follows. As to the notice required by Pa.R.E. 404(b)(3),2 the
trial court, relying upon Commonwealth v. Lynch, 57 A.3d 120, 126 (Pa.
Super. 2012), opined that the references to Kentucky in the affidavit of
probable cause provided Appellant with sufficient notice that the
Commonwealth intended to offer the testimony that the victim gave as to
Appellant’s sexual and physical abuse of her in Kentucky. Trial Court
Opinion, 7/1/2015, at 3. Regarding the admissibility of evidence of the
Kentucky wrongs, the trial court, relying upon Commonwealth v. Walker,
656 A.2d 90, 99 (Pa. 1995), concluded that the evidence was properly
admitted to show the sequence of events that formed the history of the
case. Id. at 1-2.
In his Anders brief, counsel wholly bases his opinion of the frivolity of
an appeal on this issue upon the trial court’s Rule 1925(a) statement and
the cases cited therein by the trial court. Anders Brief at 25.
Upon a review of the record, it appears to this Court that the victim’s
testimony about Kentucky events was extensive, perhaps more so than her
testimony about Appellant’s acts in McKean County. See, e.g., N.T. Trial,
6/9/2014, at 29-44. Furthermore, it is not obvious to this Court from the
2
Subsection (b)(3) provides that the prosecutor is required to “provide
reasonable notice in advance of trial… of the general nature of any” wrongs
or other bad acts that the prosecutor intends to introduce at trial. Pa.R.E.
404(b)(3).
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record that the information Appellant had from the Commonwealth prior to
trial necessarily put him on notice of the testimony the victim offered at trial
about Appellant’s acts in Kentucky. See, e.g., N.T. Preliminary Hearing,
1/15/2014, at 35 (prosecutor instructing witness to limit testimony to
Bradford incidents).
Nor is it clear to us that there is no non-frivolous argument to be made
that evidence of Appellant’s conduct in Kentucky was necessary to explain or
complete the Commonwealth’s case against Appellant as to acts committed
in McKean County. There is case law to suggest that the other wrongs
admitted to complete the story must provide immediate context of related
happenings such that there is an “inextricable relationship” between the
other act and the crime at issue. Commonwealth v. Green, 76 A.3d 575,
585 (Pa. Super. 2013).
By no means is this Court convinced that Appellant is entitled to relief
on his issues related to the admission of the Kentucky testimony. However,
the claims are not so clearly devoid of merit to warrant classifying this
appeal as frivolous. From our review, it appears that counsel has the factual
and legal bases to put forward a good-faith argument of trial court error.
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Accordingly, we deny counsel’s motion for leave to withdraw3 and
remand the case for counsel to file an advocate’s brief.
Motion for leave to withdraw denied. Case remanded with
instructions. Panel jurisdiction retained.
3
We also note an additional basis for denying counsel’s motion: the record
before us does not contain the transcript from Appellant’s sentencing
hearing. “Without these notes of testimony, [c]ounsel could not have
fulfilled his duty to review the record for any non-frivolous issues.”
Flowers, 113 A.3d at 1250. Upon remand, prior to filing his advocate’s
brief, counsel must obtain the missing sentencing transcript and ensure its
inclusion in the certified record. Id. at 1251.
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