J-S05037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MASON TYLER SWANSON

                            Appellant                No. 1161 WDA 2014


         Appeal from the Judgment of Sentence entered June 23, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No: CP-25-CR-0000913-2013


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 27, 2015

        Appellant Mason Tyler Swanson appeals from the June 23, 2014

judgment of sentence entered by the Court of Common Pleas of Erie County

(trial court), following a jury trial that resulted in Appellant being found

guilty of   corruption of minors1 and indecent assault.2    Appellant’s counsel

has filed a petition to withdraw, alleging that this appeal is wholly frivolous,

and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                  For the

reasons set forth below, we affirm the judgment of sentence, and grant the

petition to withdraw.


____________________________________________


1
    18 Pa.C.S.A. § 6301(a)(1)(i).
2
    18 Pa.C.S.A. § 3126(a)(8).
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        On March 6, 2013, Officer Markus Morrison, City of Corry Police

Department, charged Appellant with corruption of minors and indecent

assault.    In his affidavit of probable cause accompanying the complaint,

Officer Morrison alleged in part:
        On 01/31/13, the victim “LLS” minor child 13 yrs of age,
        reported that she took a shower with [Appellant] 22 yrs of age,
        while she was babysitting her sister[’]s two children . . . . Victim
        believes the incident occurred sometime during December 2012
        Christmas break, during the afternoon. Victim stated during
        Children’s Advocacy Center interview that [Appellant] showed up
        to her sister[’]s house looking for her sister.         Victim told
        [Appellant] that her sister is not home, she is in Erie. While
        [there], [Appellant] asked the victim to take a shower with him.
        Victim stated that she did not want to, but did so anyhow due to
        [Appellant] appearing upset with her.

Affidavit of Probable Cause, 3/6/13. The case proceeded to a jury trial, at

the conclusion of which Appellant was convicted of corruption of minors and

indecent assault. On June 23, 2014, the trial court sentenced Appellant to

serve 10 to 24 months in prison for corruption of minors and a consecutive 6

to 24 months’ incarceration for indecent assault.        Appellant filed a timely

appeal to this Court.

        On July 30, 2014, instead of filing a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, Appellant’s counsel filed a

statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).3 As
____________________________________________


3
    Rule 1925(c)(4) provides:
        In a criminal case, counsel may file of record and serve on the
        judge a statement of intent to file an [Anders] brief in lieu of
        filing a Statement. If, upon review of the [Anders] brief, the
        appellate court believes that there are arguably meritorious
        issues for review, those issues will not be waived; instead, the
        appellate court may remand for the filing of a Statement, a
(Footnote Continued Next Page)


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a consequence of Rule 1925(c)(4) statement of intent, the trial court

declined to issue a Pa.R.A.P. 1925(a) opinion.

      On October 23, 2014, Appellant’s counsel filed in this Court a motion

to withdraw as counsel and filed an Anders brief, wherein counsel raises

two issues for our review:

      [1.] Whether the supposed in-court identification of Appellant’s
      probative value was outweighed by its prejudicial impact, and
      the lower court judge’s admission thereof was inconsistent with
      the objectives of Pennsylvania law?
      [2.] Whether defense counsel’s failure to object to the in-court
      identification resulted in ineffective assistance of counsel,
      inconsistent with the objectives of Pennsylvania law?

Anders/Santiago Brief at 3 (footnote omitted).

      When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.    Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).         It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the

                       _______________________
(Footnote Continued)

      supplemental opinion pursuant to Rule 1925(a), or both. Upon
      remand, the trial court may, but is not required to, replace
      appellant’s counsel.
Pa.R.A.P. 1925(c)(4).




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defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

        Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention.   Accordingly, we conclude that counsel has satisfied

the procedural requirements of Anders.

        We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court

held:
        [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.

Santiago, 978 A.2d at 361.       Here, our review of counsel’s brief indicates

that he has complied with the briefing requirements of Santiago.             We,




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therefore, conclude that counsel has satisfied the minimum requirements of

Anders/Santiago.

      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. Thus,

we now turn to the merits of Appellant’s appeal.

      Appellant first argues the trial court abused its discretion in admitting

his in-court identification by the minor victim.         In this regard, Appellant

argues “the probative value of such admitted evidence is outweighed by its

prejudicial impact.” Appellant’s Brief at 5 (citation omitted).

      Before addressing the merits of Appellant’s claim, we must determine

whether Appellant properly has preserved the issue for our consideration.

With respect to preserving challenges to the admission or exclusion of

evidence, the Pennsylvania Rule of Evidence 103 provides in relevant part:

      (a) Preserving a Claim of Error. A party may claim error in a
      ruling to admit or exclude evidence only:
          (1) if the ruling admits evidence, a party, on the record:
             (A) makes a timely objection, motion to strike, or
             motion in limine; and
             (B) states the specific ground, unless it was apparent
             from the context[.]

Pa.R.E. 103(a)(1). In Pennsylvania, it is well-settled that a party must make

a timely and specific objection at trial in order to preserve an issue for

appellate review.    See Pa.R.A.P. 302(a); see also Commonwealth v.



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Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994) (citation omitted) (“In

order to preserve an issue for review, a party must make a timely and

specific objection at trial.”). Failure to do so results in waiver of that issue

on appeal.    See Pa.R.A.P. 302(a); see also Commonwealth v. Schoff,

911 A.2d 147, 158 (Pa. Super. 2006).

      Instantly, the trial transcript reveals that Appellant’s counsel failed to

object to Appellant’s in-court identification by the minor victim.

      [Commonwealth:] All right. Is [Appellant] in the courtroom
      today?
      [Victim:] Yes.
      [Commonwealth:] Could you please point to him and say what
      he’s wearing?
      [Victim:] A tie.
      [Commonwealth:] May need to be a little more specific.
      [Victim:] Tie and a coat.
      [Commonwealth:] Does he have a beard?
      [Victim:] Yeah.
      [Commonwealth:] Can you be a little more specific as to the
      color of his tie, [L.S.]? Look over there.
      [Victim:] Black and gold.
      [Commonwealth:] Okay. Your Honor, is that enough to—
      The [trial] court: Yes, I think so.
      [Commonwealth:] Thank you. All right. Thank you.
      The [trial] court: Okay. The record shall reflect [victim has]
      identified the defendant.
      [Commonwealth:] Thank you.




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N.T. Trial, 2/12/14, at 20-21.                 Accordingly, we conclude Appellant’s

evidentiary challenge to his in-court identification by the victim is waived.4

See Schoff, supra; see also Pa.R.E. 103(a).

       We next address Appellant’s argument that his trial counsel rendered

ineffective assistance when he failed to object to Appellant’s in-court

identification by the victim. Based on our Supreme Court’s recent decision

in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), Appellant’s

ineffectiveness claim cannot be considered at this juncture. In Holmes, our

Supreme Court reaffirmed its prior holding in Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of

ineffective assistance of counsel should be deferred until collateral review

under the Post Conviction Relief Act (PCRA). See Holmes, 79 A.3d at 576.

The specific circumstances under which ineffectiveness claims may be

addressed on direct appeal are not present in the instant case. See id. at

577-78 (holding that the trial court may address claims of ineffectiveness

where they are “both meritorious and apparent from the record so that

immediate consideration and relief is warranted,” or where the appellant’s

request for review of “prolix” ineffectiveness claims is “accompanied by a

knowing, voluntary, and express waiver of PCRA review”).                Accordingly,

Appellant must raise his challenge to trial counsel’s failure to object to

____________________________________________


4
  In his second issue before us, Appellant acknowledges that his trial counsel
failed to preserve this issue for appeal.



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Appellant’s in-court identification in a timely-filed PCRA petition.        We,

however, express no opinion on the merits of such effectiveness claim.

      We have conducted an independent review of the record and

addressed Appellant’s arguments pertaining to his in-court identification by

the minor victim. Based on our conclusions above, we agree with counsel

that the issues Appellant seeks to litigate in this appeal are wholly frivolous.

Also, we do not discern any non-frivolous issues that Appellant could have

raised.   We, therefore, grant counsel’s petition to withdraw and affirm the

judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




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