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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHARLES BERNARD RODGERS, : No. 2268 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered July 12, 2018,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0003495-2017
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2019
Charles Bernard Rodgers appeals from the July 12, 2018 judgment of
sentence entered by the Court of Common Pleas of Chester County following
his conviction of summary harassment.1 Joshua H. Camson, Esq., filed an
application to withdraw his appearance on February 22, 2019, alleging that
the appeal is frivolous, accompanied by an Anders brief.2 After careful
review, we grant Attorney Camson’s application to withdraw and affirm
appellant’s judgment of sentence.
The record reflects the following factual and procedural history: On the
evening of September 27, 2017, appellant and his wife, Diane Rodgers
1 18 Pa.C.S.A. § 2709(a)(1).
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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(“Mrs. Rodgers”) were at their house with their son, Michael Rodgers
(“Michael”), and Michael’s girlfriend, Anna Buczkowski. Mrs. Rodgers, Michael,
and Ms. Buczkowski were on the front porch smoking cigarettes while
appellant was in the house in the computer room upstairs. Michael disclosed
to Mrs. Rodgers that appellant had recently begun using Match.com. Upon
hearing this, Mrs. Rodgers confronted appellant without incident. Shortly
thereafter, Michael went into the house. Mrs. Rodgers testified that, from the
front porch, she could hear appellant call Michael a “rat.” Appellant asked
Michael and Ms. Buckowski to leave immediately. Mrs. Rodgers went into the
house and confronted appellant a second time. Appellant then slapped Mrs.
Rodgers in the face, causing her lip to bleed.
The Commonwealth charged appellant with summary harassment and
simple assault3 on September 27, 2017. The trial court convicted appellant
of summary harassment following a bench trial on July 12, 2018.4 Following
trial, the trial court sentenced appellant to 2-90 days’ incarceration with credit
for time served.
Appellant filed a pro se notice of appeal to this court on July 26, 2018,
despite still being represented by counsel. The trial court did not order
appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). In lieu of an opinion pursuant to
3 18 Pa.C.S.A. § 2701(a)(1).
4 The Commonwealth withdrew the simple assault charge.
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Pa.R.A.P. 1925(a), the trial court filed a statement on August 31, 2018, in
which it requested that this court quash appellant’s appeal, as his pro se
notice of appeal was a legal nullity because he was represented by counsel.
(See trial court statement, 8/31/18 at 1-2.)
This court is required to docket a pro se notice of appeal, regardless of
whether the appellant is represented by counsel. Commonwealth v.
Williams, 151 A.3d 621, 624 (Pa.Super. 2016), citing Commonwealth v.
Ellis, 626 A.2d 1137 (Pa. 1993); I.O.P. 65.24. The clerk of court’s office and
this court are required to accept for filing a pro se notice of appeal which
establishes the timeliness of the notice of appeal. The proper procedure in
such cases is for appellate counsel to then enter his or her appearance for the
appeal. Accordingly, we will not quash appellant’s appeal and will proceed to
consider the appeal on its merits.
As noted above, Attorney Camson filed an application to withdraw his
appearance, accompanied by an Anders brief on February 22, 2019.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v. Flowers,
113 A.3d 1246, 1247-48 (Pa.Super. 2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939
A.2d 896, 898 (Pa.Super. 2007). This
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Court has summarized these
requirements as follows:
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.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
[T]he Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . 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;
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(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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “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 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Camson’s petition to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of the
foregoing requirements. We note that counsel also furnished a copy of the
brief to appellant; advised him of his right to retain new counsel or proceed
pro se; and filed with this court a copy of the letter sent to appellant as
required under Commonwealth v. Milisock, 873 A.2d 748, 752 (Pa.Super.
2005) (citation omitted). See Commonwealth v. Daniels, 999 A.2d 590,
594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set forth the
new requirements for an Anders brief, which are quoted above, the holding
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did not abrogate the notice requirements set forth in Milisock that remain
binding legal precedent.”). Appellant did not respond to Attorney Camson’s
Anders brief. As Attorney Camson has complied with all of the requirements
set forth above, we conclude that counsel has satisfied the procedural
requirements of Anders.
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.” Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v.
McClendon, 434 A.2d 1185, 1187 (Pa. 1981). Therefore, we now turn to the
merits of appellant’s appeal.
Attorney Camson raises the following issue in his Anders brief:
Whether the trial court erred in finding [a]ppellant
guilty where the Commonwealth failed to prove
beyond a reasonable doubt that [a]ppellant subjected
the victim to physical contact[?]
Anders brief at 6.
Attorney Camson examined the sufficiency of the evidence presented
and noted that the victim testified that appellant hit her in her face with his
open hand. (Id. at 13.) Attorney Camson further concluded that the victim’s
testimony, if believed by the fact-finder, was sufficient to warrant a conviction
on the summary harassment charge. (Id. at 14.) Although Attorney Camson
advances no argument in the Anders brief on appellant’s behalf with respect
to this potential issue, we note that neither Anders nor McClendon requires
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counsel to provide references to anything in the record that might arguably
support the appeal. Santiago, 978 A.2d at 364. After carefully reviewing the
record in this case, we conclude that it supports Attorney Camson’s
assessment that the appeal is frivolous because the record demonstrates that
the Commonwealth presented sufficient evidence to warrant a conviction of
summary harassment.
Moreover, our independent review of the entire record reveals no
additional non-frivolous claims.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/19
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