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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOSEPH BEATTY, : No. 659 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, January 26, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004022-2015
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 14, 2017
Joseph Beatty appeals from the January 26, 2016 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County
following his conviction in a bench trial of aggravated assault and terroristic
threats.1 The trial court sentenced appellant to 4 years and 6 months to
12 years of incarceration, followed by 3 years of probation, on the
aggravated assault conviction; and a concurrent 1 year of probation on the
terroristic threats conviction. Shawn K. Page, Esq., has filed an Anders
brief,2 without an accompanying petition, alleging that the appeal is frivolous
1
18 Pa.C.S.A. §§ 2702(a)(1) and 2706(a)(1), respectively.
2
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 495
434 A.2d 1185 (Pa. 1981).
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and including a request to withdraw. Because the Anders brief is deficient,
we deny counsel’s request to withdraw and direct counsel to file either a
compliant Anders brief or an advocate’s brief.
The record reflects that appellant’s convictions stemmed from an
incident that occurred on February 26, 2015. That evening, the victim, who
was then “Islamically [sic] married” to appellant, was speaking on the phone
with a male friend when appellant became “irate saying this [is] his house,
[the victim is] his wife, nobody’s coming in here.” (Notes of testimony,
11/18/15 at 6, 10, 11.) As the victim sat on a bed, appellant took the pillow
off of the bed, got on top of the victim, placed the pillow over the victim’s
face, and called her “about a hundred and one bitches.” (Id. at 12-13.)
Appellant then began choking the victim with one hand and striking her with
the other. (Id. at 13.) While he did so, appellant told the victim that “if he
can’t have [her], no one else will.” (Id. at 35.) The victim testified that she
believes that appellant also kicked her repeatedly, but that everything
became a blur and that she was not certain as to whether she passed out,
but that she does remember the police arriving, putting her in an
ambulance, and taking her to the hospital. (Id. at 15-16.) The record
reflects that at some point during this ordeal, the victim was able to call 911.
(Id. at 29-30.)
At trial, the parties stipulated that the victim was “intubated,
underwent a multitude of x-rays and CAT scans,” and that her injuries
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included “closed head trauma, facial lacerations and hemorrhaging, left
maxillary/periorbital area,” “upper jaw, face and eye swelling and
hematoma, right mandibular and maxillary swelling and hematoma,” and
“left nasal bone fracture.” (Id. at 63.) As a result of these injuries, the
victim was hospitalized for five days. (Id.)
The record further reflects that following sentencing, appellant filed a
timely motion for reconsideration of judgment of sentence. On February 9,
2016, the trial court denied the motion.
The trial court provided the remaining procedural history, as follows:
[Appellant] filed a notice of appeal on February 29,
2016. On March 2, 2016, the court issued an order
pursuant to Pa.R.A.P. 1925(b) (“1925(b) order” or
“the order”) directing [appellant] to file a Concise
Statement of Errors Complained of on Appeal
(“Statement”) no later than twenty-one days from
the order’s date. On March 10, 2016, defense
counsel filed a motion to withdraw as counsel with
the trial court. Defense counsel was directed to file
the motion with the Superior Court. On March 22,
2016, defense counsel filed a motion to withdraw
with the Superior Court. On April 19, 2016, the
Superior Court ordered the trial court to decide
defense counsel’s March 10th motion to withdraw as
counsel without delay. On April 25, 2016, the trial
court denied defense counsel’s motion to withdraw
as counsel. [Appellant] failed to file a Statement by
March 23, 2016, pursuant to the court’s March 2,
2016 order. Nor did [appellant] file a motion for
extension of time during this period. To date, no
such statement has been filed.
Trial court opinion, 6/30/16 at 1-2 (footnotes omitted).
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The record further reflects that the trial court filed an opinion on
June 30, 2016, wherein it concluded that appellant waived all issues on
appeal for failure to comply with Pa.R.A.P. 1925(b). (Id. at 2.) On
December 14, 2016, Attorney Page filed in this court an Anders brief,
without an accompanying petition, wherein counsel states that, after a
conscientious review of the record, he determined that an appeal is wholly
frivolous. Counsel then raises the following issue for our review: “Were
there any non-frivolous issues preserved for appeal?” (Anders brief at 2
(capitalization omitted).)
Preliminarily, we note that Pa.R.A.P. 1925(c)(4) provides that:
In a criminal case, counsel may file of record and
serve on the judge a statement of intent to file an
Anders/McClendon brief in lieu of filing a
Statement. If, upon review of the
Anders/McClendon brief, the appellate court
believes that there are arguably meritorious issues
for review, those issues will not be waived; instead,
the appellate court may remand for the filing of a
Statement, a supplemental opinion pursuant to
Rule 1925(a), or both. Upon remand, the trial court
may, but is not required to, replace appellant’s
counsel.
Pa.R.A.P. 1925(c)(4). Here, after defense counsel filed a notice of appeal to
this court and was then ordered by the trial court to file a Rule 1925(a)
statement, defense counsel neither filed a Rule 1925(a) statement nor a
notice of intent to file an Anders/McClendon brief. Rather, defense
counsel filed a motion to withdraw as counsel which made no reference to
Anders. In fact, the motion failed to provide a reason as to why counsel
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sought to withdraw. The trial court’s response to that motion was to order
appellant to file the motion with this court. In turn, this court directed the
trial court to decide the motion. The trial court denied the motion. Defense
counsel then filed an Anders brief with this court. Although defense
counsel’s failure to file a notice of intent to file an Anders brief with the trial
court was a procedural misstep, we will nevertheless review defense
counsel’s request to withdraw.
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “petition the court for
leave to withdraw and state that after making a conscientious examination
of the record, he has determined that the appeal is frivolous.”
Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012),
quoting Santiago, 978 A.2d at 361. 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 his client and “advise[] him of his right to retain new
counsel, proceed pro se or raise any additional points that he deems worthy
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of the court’s attention, and attach [] to the Anders petition a copy of the
letter sent to the client.” Commonwealth v. Daniels, 999 A.2d 590, 594
(Pa.Super. 2010) (citation omitted). “[If] counsel has satisfied the above
requirements, it is then this Court’s duty to conduct its own review of the
trial court’s proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928
A.2d 287, 291 (Pa.Super. 2007) (en banc) (quotation marks and quotation
omitted).
Here, we conclude that Attorney Page’s Anders brief fails to comply
with the technical requirements related to withdrawal of his representation.
First, counsel failed to file the requisite petition with his Anders brief
averring that, after a conscientious examination of the record, counsel finds
the appeal to be wholly frivolous. Second, although counsel has provided a
summary of the procedural history and facts of this case, he has failed to
include any citation to the record. Third, counsel has not referred to
anything in the record that arguably supports the appeal, but merely
explains why he “believes that the [trial court] made an appropriate ruling”
in finding appellant guilty, which was “based on [the trial court’s] credibility
determination.” (Anders brief at 8.) Finally, although counsel furnished a
copy of the brief to appellant and advised appellant of his right to retain new
counsel or proceed pro se, counsel did not advise appellant of his right to
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raise any additional issues that appellant deems worthy of this court’s
attention.
We, therefore, remand this case and direct counsel to file, within
30 days of the date of this memorandum, either an advocate’s brief or a
proper Anders brief and petition to withdraw. Thereafter, the
Commonwealth shall have 30 days to respond. If counsel chooses to file a
proper Anders and petition to withdraw, counsel’s letter to appellant shall
provide, among other items, notice of appellant’s immediate right to raise
additional points that appellant deems worthy of this court’s attention.
Appellant shall then have 30 days from receipt of the revised petition and
brief to file a pro se brief or a brief by newly retained private counsel, if he
so chooses. The Commonwealth will then have 30 days to file a responsive
brief. The trial court is also ordered to supplement the certified record with
the January 26, 2016 transcript of appellant’s sentencing within 30 days of
the date of this decision. The prothonotary of this court shall serve a copy of
this memorandum on appellant.
Request to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 6/14/2017
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