J-S60043-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MOZA THEODORE RICHIE, :
:
Appellant : No. 3153 EDA 2015
Appeal from the Judgment of Sentence September 15, 2015,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0002327-2015
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 20, 2016
Moza Theodore Richie (Appellant) appeals from his September 15,
2015 judgment of sentence imposed after Appellant pled guilty to simple
assault. In addition, Appellant’s 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 affirm the
judgment of sentence and grant the petition to withdraw.
The relevant factual and procedural history of this case can be
summarized as follows. On March 5, 2015, Shania Frame (Frame) asked
Appellant to drive her to her brother’s home. N.T., 9/15/2015, at 27.
Agreeing to do so, Appellant, Frame and Frame’s one month-old daughter
and thirteen year-old cousin entered Appellant’s vehicle and headed to
Media, Pennsylvania. Id. at 27-28. Frame testified that as soon as they
*Retired Senior Judge assigned to the Superior Court.
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entered the highway Appellant pulled her hair and smacked her in the face.
He continued to hit her, punching her several times with a closed fist for
approximately 15 minutes. Id. at 28-29. Frame was eventually able to exit
the car, but the altercation continued on State Street. At one point,
Appellant drove away from Frame with the children still in the vehicle. After
Appellant returned, Frame was able to remove the children from the car.
While Frame held her daughter in the child’s car seat, Appellant punched
Frame in the side of the head with a closed fist. Id. at 30-35. Frame was
eventually able to seek shelter in a local business where Frame’s family
member was working. Id. at 31, 34. Pertinent to this appeal, there was
video evidence obtained by the investigating police officer from a Media
Borough camera. Id. at 50-51.
Appellant was charged with three counts of simple assault, recklessly
endangering another person, endangering the welfare of children, disorderly
conduct, and two counts of harassment. Appellant proceeded to a jury trial.
However, following the close of testimony and the trial court’s ruling that
only the charge of simple assault would be presented to the jury, Appellant
entered an open guilty plea to simple assault.
Appellant was originally sentenced to a term of six months to twenty-
three months of incarceration, a year of probation, anger management, and
a stay-away order. After the Commonwealth questioned the legality of
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Appellant’s sentence, the trial court eliminated the one year of probation.
Id. at 65.
Although still represented by counsel, Appellant pro se filed a notice of
appeal. Prior counsel was allowed to withdraw and new counsel eventually
entered his appearance. The trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925,
and counsel filed a statement of intent to file an Anders brief pursuant to
Pa.R.A.P. 1925(c)(4).
The following principles guide our review of this matter:
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.
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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold that in 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.
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
above requirements.1 Once “counsel has met these 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.’” Commonwealth v. Flowers, 113
A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.
5).
Counsel presents the following issue that arguably supports this
appeal: “The [trial court] committed reversible error and abused its
1
Appellant has not responded to counsel’s petition to withdraw.
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discretion in allowing a videotape of the scene to be published to the jury
without proper foundation.” Appellant’s Brief at 9.
Before examining the issue presented, we note that when pleading
guilty a defendant limits his ability to seek appellate review. See
Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super. 1999)
(“Upon entry of a guilty plea, a defendant generally waives all defects and
defenses except those concerning the validity of the plea, the jurisdiction of
the trial court, and the legality of the sentence imposed.”). See also
Commonwealth v. Messmer, 863 A.2d 567, 571 (Pa. Super. 2004) (“The
entry of a guilty plea constitutes a waiver of all defenses and defects except
claims of lack of jurisdiction, invalid guilty plea, and illegal sentence.”). 2
Because the issue presented does not challenge the trial court’s
jurisdiction, legality of the sentence, or voluntariness of Appellant’s plea, we
agree with counsel that any challenge to the trial court’s evidentiary ruling is
frivolous. Moreover, we have conducted “a full examination of the
proceedings” and conclude that “the appeal is in fact wholly frivolous.”
Flowers, 113 A.3d at 1248. Thus, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
2
Appellant acknowledged on his written guilty plea colloquy that pleading
guilty “will have the effect of limiting [his] direct appeal rights to a higher
court reviewing only challenges to [the trial] court’s jurisdiction; the legality
of [the] sentence; and/or whether [the] plea(s) were voluntarily, knowingly
and intelligently entered.” Written Guilty Plea Colloquy, 9/15/2015, at 5
(unnumbered).
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2016
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