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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROSE M. FRIEND,
Appellant No. 275 WDA 2016
Appeal from the Judgment of Sentence January 26, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001432-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016
Rose M. Friend (“Appellant”) appeals from the judgment of sentence
entered following her plea of no contest to criminal mischief. Appellate
counsel has filed a petition to withdraw his representation and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a
withdrawal from representation on direct appeal. We grant counsel’s
petition to withdraw and affirm the judgment of sentence.
Baden Borough Police Officer Ryan Chimile was dispatched on June 25,
2015, at approximately 6:00 a.m. to investigate a report of a car on fire.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Upon his arrival at 755 Schiller Street, Officer Chimile observed a black Ford
Mustang in the driveway with heavy burn damage on the passenger side.
The officer spoke with the owner of the vehicle, William Ewing. While the
officer and Mr. Ewing were talking, Appellant approached them and asked
what had happened. Officer Chimile had seen Appellant walking a dog
approximately 200 yards from the home in the opposite direction when he
was responding to the call. Mr. Ewing identified Appellant as possibly being
responsible for the damage to his car. He explained that Appellant was
staying as a guest at his residence and they had argued earlier in the
morning. Appellant adamantly denied any suggestion that she was involved
with or had knowledge of the fire.
The fire officials on scene alerted Officer Chimile to a strong smell of
gasoline near the Mustang and the back porch. Mr. Ewing noticed that one
of his gasoline cans was missing from the back porch. Officer Chimile found
a gasoline can on the wooded hill behind the residence. While fire officials
reviewed video from the camera Mr. Ewing had placed directly over his
Mustang and porch, Officer Chimile questioned Appellant, who continued to
deny any involvement in or knowledge of the fire.
Based on his preliminary investigation, Officer Chimile took Appellant
into custody for questioning and transported her to the police department.
In the questioning room, he smelled a strong odor of gasoline emanating
from Appellant’s person. Appellant was advised of and acknowledged her
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rights. After further questioning, she eventually told Officer Chimile that she
may have accidentally started a fire. According to Appellant, she had used
gasoline to clean paint brushes. She lit one of the brushes on fire with a
brown lighter, which was found on the back porch of the residence. After
the paint brush caught fire, Appellant left and proceeded to walk the dog
away from the home.1
The trial court summarized the procedural history of this case:
On September 14, 2015, the Commonwealth of
Pennsylvania filed a criminal information against Appellant, Rose
M. Friend, that included one count of reckless burning or
exploding of an automobile in violation of 18 Pa. C.S.A. §
3301(d)(2) (Felony 3), and one count of criminal mischief
causing pecuniary loss in excess of $5,000, in violation of 18 Pa.
C.S.A. § 3304(a)(1) (Felony 3). Following a status conference
on September 24, 2015, the case was listed for jury trial.
However, on January 15, 2016, Appellant entered a counseled
plea of no contest to count 2, criminal mischief.
On that same day, this [c]ourt sentenced Appellant to
between 6 months and 2 years in the Beaver County Jail.
Following sentence, Appellant and counsel signed a notice of
rights following sentence and a nolo contendere plea colloquy
form, which advised Appellant of her right to file an appeal
within 30 days of imposition of sentence.
On January 25, 2016, Appellant, by her attorney, filed a
motion to withdraw her plea, averring that she did not commit
the offense. This [c]ourt denied her motion on January 26,
2016.
On February 19, 2016, the [c]ourt received notice of
Appellant’s intent to appeal. On March 1, 2016, this [c]ourt
ordered Appellant to provide a concise statement of errors
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1
Affidavit of Probable Cause, 6/21/15, at 1–2; N.T. Plea, 1/15/16, at 8–10.
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complained of on appeal in accordance with Pennsylvania Rule of
Appellate Procedure 1925(b) (“Discretion to file statement of
errors filed of on appeal; instructions to the appellant and the
trial court.”) On March 17, 2016, counsel for Appellant filed a
statement of errors, which consisted of the following:
Whether there are any issues of arguable merit that
could be raised on direct appeal presently before this
court?
Counsel, finding no merit in Appellant’s claims, submitted [a]
. . . brief which set forth counsel’s conclusion that the appeal is
frivolous and his reasons for that position.
Trial Court Opinion, 3/28/16, at 1–2.
As noted, counsel has filed a petition to withdraw from representation
and an Anders brief. When we receive an Anders brief, we first rule on the
petition to withdraw and then review the merits of the underlying issues.
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc).
In addition, “[p]art and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or misstated.”
Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on direct appeal. The procedural mandates
are that 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 brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
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Cartrette, 83 A.3d at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within the petition
to withdraw, counsel averred that he conducted a conscientious review of
the record and pertinent legal research. Following that review, counsel
concluded that the present appeal is frivolous. Counsel sent Appellant a
copy of the Anders brief and the petition to withdraw, as well as a letter, a
copy of which is attached to the petition to withdraw. In the letter, counsel
advised Appellant that she could represent herself or that she could retain
private counsel.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in 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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361). Upon
review, we find that counsel’s brief is compliant with Santiago. We thus
conclude that the procedural and briefing requirements for withdrawal have
been met.
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As Appellant has not filed a response to counsel’s motion to withdraw
or a pro se brief, we review this appeal based on the discussion contained
within the Anders brief. Therein, counsel presents the following issue:
I. WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT
THAT COULD BE RAISED ON DIRECT APPEAL PRESENTLY
BEFORE THIS COURT?
Anders Brief at 6.
In answering this question, counsel concludes that there are no issues
of arguable merit. Specifically, counsel argues that: (1) there is no
jurisdictional issue, id. at 9; (2) Appellant’s sentence is legal, id. at 10; (3)
Appellant’s plea was valid, id. at 10–11; and (4) Appellant’s claim of
innocence is unsubstantiated, id. at 11–12.
Additionally, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Like
appellate counsel, we conclude that there are no meritorious issues that
could be raised on appeal. Thus, we grant Appellant’s counsel permission to
withdraw, and we affirm the judgment of sentence.
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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