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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JASON EDWARD EDDINGTON, :
:
APPELLANT :
:
: No. 210 MDA 2016
Appeal from the Judgment of Sentence October 20, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007170-2012
CP-67-CR-0007172-2012
CP-67-CR-0007173-2012
CP-67-CR-0008156-2012
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 18, 2017
Jason Edward Eddington (“Appellant”) appeals from the Judgment of
Sentence entered by the York County Court of Common Pleas after a jury
convicted him of four counts of theft by deception.1 Appellant’s counsel,
Christopher D. Moore, Esq., has filed an Anders-McClendon2 brief and a
Petition to Withdraw as Counsel. In addition, Appellant has filed a “Motion
for Withdrawal of Counsel Inter Alia Ineffective Assistance of Counsel.”
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant represented himself at trial.
2
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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Because the Anders brief is deficient, we deny counsel’s Petition to
Withdraw, and direct counsel to file a brief that complies with the
requirements set forth in Anders and Commonwealth v. Santiago, 978
A.2d 349, 361 (Pa. 2009). Further, we deny Appellant’s “Motion for
Withdrawal of Counsel Inter Alia Ineffective Assistance of Counsel.”
We need not recite the underlying facts at this time. Relevant to this
disposition, on February 2, 2016, Appellant’s counsel, Christopher Moore,
Esq., filed a notice of appeal after Appellant’s appeal rights were reinstated
nunc pro tunc.3 On March 16, 2016, after the grant of an extension, counsel
filed a Pa.R.A.P. 1925(b) Statement. On March 30, 2016, the trial court filed
a Pa.R.A.P. 1925(a) Opinion.
In July 2016, Attorney Moore filed a Motion to Withdraw as Counsel
and what purports to be an Anders-McClendon Brief. Appellant filed a
response, referencing a letter he had allegedly sent to the trial court and to
Attorney Moore that raised “numerous relevant issues for direct appeal.”
3
After the jury returned its verdict, Appellant requested counsel for
purposes of post-verdict and appeal. When that counsel refused to raise
issues Appellant had deemed meritorious, Appellant filed a pro se petition in
this Court alleging ineffective assistance of appellate counsel. We remanded
with instructions, and the trial court held a Grazier hearing in which
Appellant stated he did not want to proceed pro se and would continue with
his appellate counsel. Appellate counsel failed to file a brief, however, and
this Court dismissed the appeal. After Appellant filed a pro se request for
the reinstatement of his direct appeal rights nunc pro tunc, the trial court
granted the request and appointed current counsel, Christopher Moore, Esq.
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See Appellant’s Response to Anders-McClendon Brief, filed 7/27/16.
Appellant did not annex a copy of that letter to his Response.
On September 29, 2016, Appellant filed pro se with this Court a
document entitled “Motion for Withdrawal of Counsel Inter Alia Ineffective
Assistance of Counsel,” requesting that he be allowed to proceed pro se and
to file an Amended Pa.R.A.P. 1925(b) Statement and an “Extensive All-
inclusive Detailed Appellate Brief, Pro-se.” Motion for Withdrawal of Counsel
Inter Alia Ineffective Assistance of Counsel, filed 9/29/16. In his Motion,
Appellant avers that Attorney Moore failed to raise numerous issues he
wanted reviewed on appeal but, again, does not inform this Court of what
those issues are.4
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
4
The issues raised in Appellant’s Rule 1925(b) statement, and in counsel’s
Anders brief, are as follows: “WHETHER THE COURT ABUSED ITS
DISCRETION IN THE FOLLOWING ISSUES: (a) Judge failing to recuse self as
a juror was a neighbor of the judge 20 years ago; (b) Failure to allow
handwriting expert to testify as witness; (c) Judge referring to defendant as
noise machine in front of the jury; (d) Judge failing to allow defendant to
submit his legal documents as handwriting samples to the jury; (e) Judge
failure to allow defendant to call correctional officer regarding defendant’s
handwriting; (f) Judge failing to instruct jury on contract law; (g) Judge
ordering restitution to witness who testified she was not owed any money;
(h) Ruling on Rule 600 issue; (i) Brady violation regarding bank video; (j)
Failure to allow subpoena of Officer Davenport; (k) Unlawful seizure by
police of signature of Frank Williams [sic]; (l) Failure to allow defendant to
explain theory of the case in closing argument.” Pa.R.A.P. 1925(b) Concise
Statement; Anders-McClendon Brief at 4-5 (verbatim with altered
punctuation).
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withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). In order for counsel to withdraw from an appeal
pursuant to Anders, our Supreme Court has determined that counsel must
meet certain requirements, including:
(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 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, 1248 (Pa. Super. 2015) (citation and internal quotation marks
omitted). Further “this Court must conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Id. at 1250 (footnote and citation omitted).
In the instant case, Attorney Moore has submitted a brief that utterly
fails to comply with the requirements set forth in Santiago. The brief
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contains no substantive summary of the procedural history and facts of the
case. Aside from occasionally providing a citation to the Notes of Testimony,
the Anders brief fails to refer to anything in the record that arguably
supports the appeal. Most significantly, nowhere in the Anders brief does
counsel state that the appeal is wholly frivolous.5 Moreover, counsel has
made virtually no effort to “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, supra.
Because the Anders brief is deficient, we are unable to review the
merits of the issues raised. Accordingly, we deny counsel’s motion to
withdraw and direct Attorney Moore to file, within thirty days, a proper and
complete brief pursuant to the mandates of Anders and Santiago, i.e., with
a meaningful summary of the facts and procedural history relevant to the
issues raised, as well as citation to the record and relevant statutory and
case law. Appellant may respond within thirty days of counsel’s new filing.6
5
Counsel states in his Petition to Withdraw that the appeal is frivolous.
6
We will not deliberate at this time on Appellant’s request that he be
allowed to proceed pro se, as the request appears to stem more from a
frustration with his attorney’s inaction than from a genuine desire to proceed
without proper counsel. In addition, claims of ineffective assistance of
counsel will be addressed only on post-conviction collateral review pursuant
to the general rule in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
See also Commonwealth. v. Holmes, 79 A.3d 562, 567 (Pa. 2013); 42
Pa.C.S. § 9543.
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Petition to Withdraw as Counsel denied. Appellant’s “Motion for
Withdrawal of Counsel Inter Alia Ineffective Assistance of Counsel” denied.
Panel jurisdiction retained.
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