J-S29024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDDIE BOWMAN :
:
Appellant : No. 2199 EDA 2019
Appeal from the Order Entered July 17, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003616-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 09, 2020
Appellant Freddie Bowman appeals from the trial court’s decision to
revoke Appellant’s parole and recommit him to serve the remainder of his
2017 sentence of time served to nine months’ imprisonment. Appellant’s
counsel (Counsel) has filed a petition to withdraw and an Anders/Santiago1
brief. We affirm and grant Counsel leave to withdraw.
The trial judge summarized the procedural history of this case as
follows:
On December 12, 2017, [Appellant] pleaded guilty to one count
each of defiant trespass and possession of drug paraphernalia. I
immediately sentenced [Appellant] to time served to nine months
with immediate parole. On May 12, 2018, [Appellant] was
arrested by Allentown Police on charges of possession of a
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* Retired Senior Judge assigned to the Superior Court.
1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
J-S29024-20
controlled substance and possession with intent to deliver a
controlled substance. As a result, a parole violation warrant was
issued on May 16, 2018.
A parole revocation hearing was held on July 17, 2019, at which
time the Commonwealth presented the testimony of Adult
Probation Officer Cori Doughty.[2] Officer Doughty testified that
[Appellant] pleaded nolo contendere to the new charges on
February 27, 2019, and was sentenced by the Honorable Robert
L. Steinberg to 12 months to 36 months incarceration in a state
correctional institution.[3] [Appellant] did not cross-examine
Officer Doughty and did not present any testimony or other
evidence. I determined [Appellant] violated the terms of his
parole based on the new conviction. I revoked [Appellant’s]
parole and remanded him to a state correctional institution to
serve the balance of his sentence previously imposed.
Trial Ct. Op., 9/6/19, at 1.
Appellant timely appealed and complied with the trial court’s order to
file and serve a Pa.R.A.P. 1925(b) statement. The trial court filed a responsive
Rule 1925(a) opinion noting that based on credible testimony from the parole
officer, Appellant violated his parole based on his conviction on new charges
while on parole. Id. at 2.
Counsel has filed a petition to withdraw and an accompanying
Anders/Santiago brief asserting that the instant appeal is frivolous.
Anders/Santiago Brief at 8. According to Counsel, Appellant intends to
appeal the order revoking his parole because “Appellant believes it was an
improper ruling.” Anders/Santiago Brief at 8-9. Counsel asserts that
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2The trial court appointed Counsel to represent Appellant on May 29, 2019.
Counsel represented Appellant at the violation of parole hearing.
3We address Appellant’s appeal from the judgment of sentence imposed on
February 27, 2019, in the appeal listed at J-S29023-20.
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Appellant believes that the revocation was improper because the conviction
for the new offense was invalid. Id. at 9. Appellant has not filed a response
either pro se or through new counsel.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
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“Once 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.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
Here, Counsel substantially complied with the procedures for seeking
withdrawal. Counsel has filed a separate petition to withdraw in this Court
indicating that he has thoroughly reviewed the record and that there are no
meritorious issues for appeal. Counsel’s brief did not include a copy of his
letter apprising Appellant of his right to proceed pro se or with new private
counsel. However, Counsel complied with an order of this Court to file copies
of the letter. In his letter to Appellant and his brief, Counsel also asserts that
he provided copies of his brief to Appellant. See Resp. to Order, 3/19/20;
Anders/Santiago Brief at 12-13. Moreover, Counsel’s brief complies with
the requirements of Santiago. Therefore, we proceed to consider Counsel’s
assessment that the appeal is frivolous.
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As noted above, Appellant seeks to challenge the order revoking his
parole based on a new charge. Appellant intends to argue that the revocation
of parole was in error because his conviction for the new charge was invalid.
At the outset, we note that this Court has jurisdiction over appeals from
parole orders of the court of common pleas. Commonwealth v. McDermott,
547 A.2d 1236, 1240 (Pa. Super. 1988). As this Court noted,
a parole revocation does not involve the imposition of a new
sentence. Indeed, there is no authority for a parole-revocation
court to impose a new penalty. Rather, the only option for a court
that decides to revoke parole is to recommit the defendant to
serve the already-imposed, original sentence. At some point
thereafter, the defendant may again be paroled.
Therefore, the purposes of a court’s parole-revocation hearing—
the revocation court’s tasks—are to determine whether the
parolee violated parole and, if so, whether parole remains a viable
means of rehabilitating the defendant and deterring future
antisocial conduct, or whether revocation, and thus
recommitment, are in order. The Commonwealth must prove the
violation by a preponderance of the evidence and, once it does so,
the decision to revoke parole is a matter for the court’s discretion.
In the exercise of that discretion, a conviction for a new crime is
a legally sufficient basis to revoke parole.
Following parole revocation and recommitment, the proper issue
on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the
defendant to confinement.
Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)
(citations and footnote omitted).
Instantly, we find no error in the trial court’s decision to revoke
Appellant’s parole or to recommit him to the balance of his sentence. The
county probation and parole officer requested a parole violation warrant
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indicating that Appellant violated “Condition 4—New Arrest” based on new
offenses. The new offenses resulted in a conviction. As noted in Appellant’s
companion appeal listed at J-S29023-20, Appellant’s conviction for his new
offense was valid.
In light of the foregoing, we agree with Counsel’s assessment that the
appeal is frivolous, and find no basis to disturb the trial court’s conclusion that
“there were sufficient grounds to revoke [Appellant]’s parole.” See Trial Ct.
Op. at 2. Moreover, our independent review of the record reveals no other
non-frivolous issues in this appeal. See Flowers, 113 A.3d at 1250.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/20
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