J-S09013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRENCE ANDREWS :
:
Appellant : No. 570 WDA 2018
Appeal from the Judgment of Sentence March 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010169-2008
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 29, 2019
Terrence Andrews appeals from the judgment of sentence entered in
the Allegheny Court of Common Pleas. Andrews argues the trial court was
required to grant him a new trial when it granted him relief “in the interests
of justice.” Additionally, his court-appointed counsel seeks permission from
this Court to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
affirm and grant counsel’s petition to withdraw.
After he was charged with the murder of his neighbor, Andrews
proceeded to a jury trial, where he was convicted of first-degree murder and
burglary. He was sentenced to life imprisonment without parole for first-
degree murder and five to ten years of imprisonment for burglary, to run
consecutively.
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* Retired Senior Judge assigned to the Superior Court.
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After his post sentence motion challenging the weight of evidence
supporting his homicide conviction and the court’s failure to instruct the jury
on a guilty but mentally ill charge was denied, Andrews appealed to this Court.
On February 15, 2013, we affirmed the judgment of sentence. The Supreme
Court of Pennsylvania subsequently denied a petition for allowance of appeal.
In January of 2014, Andrews filed his first petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel was
appointed, who eventually filed an amended PCRA petition in which Andrews
argued trial counsel was ineffective for failing to advise him to plead guilty but
mentally ill. The petition specifically requested relief in the form of permitting
him to plead guilty but mentally ill. After informing Andrews of its intent to
dismiss the petition without a hearing, the PCRA court denied the petition,
relying on its reasons set forth in its notice of intent to dismiss.
Andrews again appealed to this Court. On April 7, 2017, we vacated the
PCRA court’s order dismissing the PCRA petition and remanded the case to the
PCRA court for further proceedings. See Commonwealth v. Andrews, 158
A.3d 1260 (Pa. Super. 2017) (concluding that Andrews was entitled to hearing
on his claim that counsel should have advised him to plead guilty but mentally
ill).
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A PCRA hearing was held in which the court, “in the interest of justice,”
molded the verdict from guilty to guilty but mentally ill.1 There was no finding
of ineffective assistance of counsel. A new sentence of life imprisonment
without parole was imposed, consistent with the provisions of first-degree
murder, and under the guidelines of the guilty but mentally ill verdict. The
burglary conviction remained untouched, and the sentence of five to ten years’
imprisonment was re-imposed. This appeal from the resentencing followed.
We turn first to counsel’s petition to withdraw. To withdraw pursuant to
Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). With respect to the third requirement of Anders,
that counsel inform the appellant of his or her rights in light of counsel’s
withdrawal, this Court has held that counsel must “attach to their petition to
withdraw a copy of the letter sent to their client advising him or her of their
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1 In making this decision, the court considered the entirety of the record made
in this matter including the pretrial matters, the trial itself, and the PCRA
hearing. The court further considered the opinion filed by our Court in 2017
as well as the exhibits offered by counsel. See N.T., Sentencing, 3/26/2018,
at 2-3.
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rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
An Anders brief must comply with the following requirements:
(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.
“[I]f counsel’s petition and brief satisfy Anders, we will then undertake
our own review of the appeal to determine if it is wholly frivolous.”
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets
added, citation omitted).
Andrews’s counsel filed a petition to withdraw, certifying he has
reviewed the case and determined that Andrews’s appeal is frivolous. Counsel
attached to his petition a copy of his letter to Andrews, advising that he may
retain new counsel, raise additional issues pro se, or discontinue his appeal.
Counsel also filed a brief, which includes a summary of the history and facts
of the case, potential issues that could be raised by Andrews, and counsel’s
assessment of why those issues are meritless, with citations to relevant legal
authority.
Counsel has thus complied with the requirements of Anders and
Santiago. Andrews filed a response in which he raised multiple issues with
his trial and initial sentencing. These issues are not cognizable in this direct
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appeal. See Commonwealth v. McKeever, 947 A.2d 782, 786 (Pa. Super.
2008).2 We may proceed to review the issue outlined in the Anders brief.
Counsel has identified one issue Andrews believes may entitle him to
relief. Andrews contends the trial court erred by failing to give relief in the
form of a new trial when the trial court found that there was no legal remedy
but ruled that he was entitled to an equitable remedy in the form of a new
verdict of guilty but mentally ill.
The present appeal is explicitly a direct appeal from the judgment of
sentence following resentencing. See Notice of Appeal, filed 4/25/18.
Andrews’s issue is more properly classified as a challenge to the relief granted
by the PCRA court, not a challenge to the judgment of sentence imposed after
resentencing. Therefore, this issue is waived.
Even if this were an appeal from the PCRA order, we would still find that
the issue was not properly before us. Our Rules of Appellate Procedure
provide:
Except where the right of appeal is enlarged by statute, any party
who is aggrieved by an appealable order, or a fiduciary whose
estate or trust is so aggrieved, may appeal therefrom.
Pa.R.A.P. 501.
A party is aggrieved by a ruling when that party has been
adversely affected by the decision from which the appeal is taken.
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2 The court’s decision was solely made “in the interests of justice” and did not
include any finding of wrong-doing by counsel. See N.T., Sentencing,
3/26/2018, at 3.
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A prevailing party is not aggrieved and therefore, does not have
standing to appeal an order that has been entered in his or her
favor.
Epstein v. Saul Ewing, LLP, 7 A.3d 303, 314 (Pa. Super. 2010) (citations
omitted). We will dismiss an appeal where the appellant was the prevailing
party in the order from which he appeals. See In re J.G., 984 A.2d 541 (Pa.
Super. 2009) (en banc).
The record reflects the PCRA court granted Andrews the relief he
requested. He was not adversely affected by the PCRA order, which operated
to modify his guilty verdict to guilty but mentally ill. This ruling benefited
Andrews, as the sole relief he requested in his PCRA petition was to permit
him to plead guilty but mentally ill. Thus, Andrews is not entitled to appeal
the PCRA court order in any event.
Having reviewed the issue raised in counsel’s Anders brief, and the
issues raised by Andrews in his pro se response, we agree with counsel for
Andrews that the within appeal is wholly frivolous.3 As such, we affirm the
judgment of sentence and grant counsel’s motion to withdraw.
Judgment of sentence affirmed. Petition for leave to withdraw granted.
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3Further, we note that our independent review of the record did not reveal
any additional, non-frivolous issues overlooked by counsel.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2019
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