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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH KWAHA
Appellant No. 2773 EDA 2014
Appeal from the Judgment of Sentence August 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001941-2013
CP-51-CR-0001943-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 14, 2015
Appellant, Joseph Kwaha, appeals from the judgment of sentence
entered on August 12, 2014, after he pled guilty in an open guilty plea to
charges of aggravated assault, accident involving death or personal injury,
and possession of an instrument of crime (“PIC”).1 He also pled guilty to
charges of possession of controlled substance with intent to deliver,
possession of firearm – prohibited, and fleeing or attempting to elude
officer.2 Additionally, Kwaha’s court appointed counsel, Stanley R. Krakower,
Esquire, has filed an application to withdraw as counsel pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
____________________________________________
1
All charges docketed at CP-51-CR-1941-2013.
2
All charges docketed at CP-51-CR-1943-2013.
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A.2d 349 (Pa. 2009). We affirm and grant attorney Krakower’s application to
withdraw.
Police observed a car, later determined to be driven by Kwaha, ignore
a stop sign. The police attempted to pull the car over, but Kwaha fled. While
fleeing from the police, Kwaha struck a pedestrian with his car, shattering
the victim’s pelvis. Kwaha then drove into a telephone pole, starting a fire
that disabled electricity service to the neighborhood. Kwaha then exited the
vehicle and ran. Officers caught Kwaha and subdued him after a brief fight.
After arresting Kwaha, officers found multiple packets of heroin, crack
cocaine, and marijuana, as well as $461 in cash on his person. They also
recovered a handgun from the floor of the car.
Following a colloquy, Kwaha pled guilty to the counts set forth above.
That same day, the court sentenced Kwaha to two years of probation for his
PIC and fleeing and eluding convictions. The court then recessed to allow for
the preparation of a presentence investigation report. After receiving the
report, the court sentenced Kwaha to an aggregate sentence of nine and a
half to twenty years’ incarceration for his aggravated assault conviction, as
well as $9,112.92 in restitution. Kwaha did not file any post sentence
motions or a motion to withdraw his guilty plea.
Kwaha filed a timely appeal. After trial counsel was permitted to
withdraw, and new counsel was appointed, a second order directing counsel
to file a Rule 1925(b) statement was filed. Initially, no such statement was
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filed, and Attorney Krakower filed his application to withdraw and Anders
brief in this Court. We observed that under Commonwealth v. McBride,
957 A.2d 752, 756 (Pa. Super. 2008), attorney Krakower was required to file
either a Rule 1925(b) statement or a notice of intent to file an Anders brief
with the trial court, and therefore remanded the case. Attorney Krakower
subsequently filed a notice of intent to file an Anders brief, and this appeal
is now properly before us.
When court-appointed counsel seeks to withdraw from representation
on appeal, counsel must meet the following requirements.
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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; (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 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.” Id., at 355 n.5 (citation omitted).
Counsel has substantially complied with the technical requirements of
Anders as articulated in Santiago. Additionally, counsel confirmed that he
sent a copy of the Anders brief to Kwaha, as well as a letter explaining to
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Kwaha that he has the right to proceed pro se or the right to retain new
counsel. See Commonwealth v. Daniels, 999 A.2d 5990, 594 (Pa. Super.
2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).
Kwaha has not filed a response.
We will now proceed to examine the issues counsel has set forth in the
Anders brief. Counsel identifies four issues that Kwaha desires to raise,
which upon examination resolve to two issues. First, Kwaha contends that
his guilty plea was involuntary due to counsel’s failure to explain the
consequences of his plea. However, we observe that claims of
ineffectiveness of counsel are generally not ripe until collateral review. See
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). To the extent
that Kwaha’s argument hinges on circumstances other than counsel’s
effectiveness, our review of the record indicates that he was fully apprised of
the consequences of his plea during his oral colloquy with the trial court.
See N.T., Guilty Plea, 3/24/14, at 14-21. We therefore agree with counsel’s
assessment that this issue is wholly meritless.
In his second issue, Kwaha contends that the aggregate sentence of
imprisonment imposed is excessive. As the Commonwealth notes, none of
the sentences imposed exceed the statutory maximum, nor is Kwaha
arguing against the imposition of mandatory minimums. Thus, his claim
raises a challenge to the discretionary aspects of the sentence imposed.
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See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super.
2007).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274 (citation omitted). “First, an appellant must set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Id. (citation omitted).
“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists. See id. “Our
inquiry must focus on the reasons for which the appeal is sought, in contrast
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to the facts underlying the appeal, which are necessary only to decide the
appeal on the merits.” Id. (citation omitted).
In the present case, Kwaha’s appellate brief does not contain the
requisite Rule 2119(f) concise statement, and, as such, this issue could be
technically waived. See, e.g., Commonwealth v. Gambal, 561 A.2d 710,
713 (Pa. 1989). Furthermore, the argument section of counsel’s Anders
brief does not separately list the arguments regarding each issue identified.
However, rather than remand for an appropriate Anders brief, we will
address Kwaha’s issue on the merits in the interest of judicial efficiency.
Kwaha argues that the sentence imposed by the trial court was
excessive. It is well-settled that a generic claim that a sentence is excessive
does not raise a substantial question for our review. See, e.g.,
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013).
Furthermore, while the sentences are aggravated range sentences, they are
within the guidelines. The trial court observed that
[t]here’s a lot going on. There’s a lot of damage and harm that
you caused, not only to the individual; he was badly injured,
almost killed, but also to the community, that the power grid
was taken down.
There were fires there; homes could have burned down. We are
very fortunate – you could have been killed, yourself in a fiery
crash.
This was a catastrophe, and the sentence has to reflect that.
Now of course, we do give consideration to the fact that you did
plead guilty and there was energy saved, expense and time and
cost to the Commonwealth, as well as – the complaining witness
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didn’t have to come in and be put through that, certainly that
has to be given its due consideration, but this is a very, very
serious matter, and looking at the recommendation of your
counsel, at the five-to-ten years, six to 12-year range; looking at
the seriousness of that – of this matter, I have to go past that.
…
This isn’t the first time that he fled the police. At least three
times, including Upper Darby; other counties you have done the
same thing. It didn’t result in that kind of catastrophe, but it’s a
matter of time before it gets there and now we are here, we are
at this time, so the sentence has to reflect the gravity.
N.T., Sentencing, 8/12/14, at 43-46.
This discussion indicates that the trial court carefully considered the
circumstances of the case and the impact of the sentence upon Kwaha.
Furthermore, the trial court also had the benefit of a pre-sentence
investigation before imposing sentence. Where the court had the benefit of
a pre-sentence investigation report, there is a presumption that the court
was aware of information relating to the defendant’s character, and
considered that information along with the mitigating statutory factors. See
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005);
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). As such,
we agree with counsel that Kwaha’s challenge to the discretionary aspects of
his sentence is wholly meritless.
After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
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Judgment of sentence affirmed. Permission to withdraw as counsel is
granted. Jurisdiction relinquished.
President Judge Gantman joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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