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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
IVAN BOLSHAKOV,                          :          No. 1063 EDA 2018
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, March 5, 2018,
             in the Court of Common Pleas of Delaware County
              Criminal Division at No. CP-23-CR-0001834-2017


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 06, 2019

      Ivan Bolshakov appeals from the March 5, 2018 judgment of sentence

of the Court of Common Pleas of Delaware County of one year less one day to

two years less one day of imprisonment for simple assault, followed by two

years of probation for retail theft and possession of drug paraphernalia. 1

J. Anthony Foltz, Esq. (“Attorney Foltz”), had filed an application to withdraw,

alleging that the appeal is wholly frivolous, accompanied by an Anders brief.2

After careful review, we deny counsel’s application to withdraw and remand

for either a compliant Anders/Santiago brief or an advocate’s brief.




1 18 Pa.C.S.A. §§ 2701(a)(4) and 3929(a)(1), and 35 P.S. § 780-113(a)(32),
respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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      The record reflects that Ashai Mathurin (“Mathurin”), a loss prevention

agent for Rite Aid, was working at the Rite Aid store at 123 South 69th Street

in Upper Darby Township, Pennsylvania on February 8, 2017 when he

observed appellant walking around the store with a backpack. Mathurin saw

appellant taking random items and putting them in his backpack in a cart.

(Notes of testimony, 1/17/18, at 24-25.) Mathurin confronted appellant and

told him that he had to come with him because he was stealing. (Id. at 26.)

Mathurin found Febreze air spray, Dove original soap six pack, cotton balls,

energy drinks, socks, insoles for shoes, hairclips, and wristbands valued at

$109.13 in the backpack. Mathurin called the Upper Darby Township Police.

(Id. at 30-31.)

      Officer Francis Devine (“Officer Devine”) of the Upper Darby Township

Police Department responded to the call.     When Officer Devine questioned

appellant concerning his name, address, and date of birth, appellant

“understood everything I was asking him and I was having a full conversation

in English just as I am with you today.” (Id. at 38.) Because Officer Devine

could not verify the identifying information appellant gave him through his

radio, Officer Devine informed appellant that he would have to place him in

handcuffs.   Appellant complied with the request as if he understood what

Officer Devine said to him. (Id. at 39-40.) Before conducting a pat down of

appellant, Officer Devine asked appellant if he had anything on his person that

could hurt Officer Devine, appellant replied “that he had nothing on him that



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would hurt” Officer Devine.     (Id. at 40.)   As he conducted the search,

Officer Devine was poked in the hand by a used hypodermic needle that was

protruding through the fabric of the pocket of appellant’s coat. (Id. at 41.)

Officer Devine also found a bottle cap in the pocket that had an off-white

residue and cotton inside it. Officer Devine explained at trial that the bottle

cap was normally used in the preparation of the injection of heroin. (Id.)

Officer Devine went to the hospital and went through a battery of tests to

determine if he had contracted any diseases from the needle.        He had to

undergo nine or ten blood tests in a six month period.       (Id. at 42, 45.)

Officer Devine was cleared on September 11, 2017. (Id. at 47.)

      Officer Charles Peterson of the Upper Darby Police Department

transported appellant to the police station. Officer Peterson testified that

appellant made appropriate responses in English to Officer Peterson. (Id. at

62-63.)   When Officer Peterson conducted a search of appellant at police

headquarters, he found a glass pipe that would be used to smoke narcotics

and a plastic cap or bottle cap with some white residue around it. (Id. at 64.)

Officer Peterson and appellant had a conversation prior to appellant

undergoing a blood draw.     (Id. at 67.)   Officer Peterson testified that he

overheard appellant speaking to medical professionals at the hospital in

English. (Id. at 70.)

      On January 18, 2018, the jury found appellant guilty of the

aforementioned crimes set forth above. On March 5, 2018, the trial court



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sentenced appellant and found him eligible for immediate parole with credit

for time served.

      On April 3, 2018, appellant filed a notice of appeal. On April 4, 2018,

the trial court ordered appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On June 13, 2018,

in accordance with Pa.R.A.P. 1925(c)(4), Attorney Foltz informed the trial

court that he intended to file an Anders brief. On June 26, 2018, the trial

court filed an opinion in which it stated that it did not see any issue of arguable

merit.

      Attorney Foltz raises one issue of arguable merit for this court’s review:

“The Commonwealth failed to produce sufficient evidence that [appellant]

committed the offenses because his limited understanding of the English

language raises doubt that he had the requisite mens rea to commit the acts

charged.” (Anders brief at 5.)

      On August 16, 2018, Attorney Foltz filed in this court an application to

withdraw his appearance because he found the appeal to be “wholly frivolous.”

On August 16, 2018, Attorney Foltz filed an Anders brief.

            A request by appointed counsel to withdraw pursuant
            to Anders and Santiago gives rise to certain
            requirements and obligations, for both appointed
            counsel and this Court. Commonwealth v. Flowers,
            113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

                   These requirements and the significant
                   protection they provide to an Anders
                   appellant arise because a criminal
                   defendant has a constitutional right to a


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               direct appeal and to counsel on that
               appeal. Commonwealth v. Woods, 939
               A.2d 896, 898 (Pa.Super. 2007). This
               Court     has     summarized   these
               requirements as follows:

                    Direct appeal counsel seeking
                    to withdraw under Anders
                    must file a petition averring
                    that, after a conscientious
                    examination of the record,
                    counsel finds the appeal to be
                    wholly frivolous.      Counsel
                    must also file an Anders brief
                    setting forth issues that might
                    arguably support the appeal
                    along with any other issues
                    necessary for the effective
                    appellate          presentation
                    thereof.

                    Anders counsel must also
                    provide a copy of the Anders
                    petition and brief to the
                    appellant,     advising      the
                    appellant of the right to retain
                    new counsel, proceed pro se
                    or raise additional points
                    worthy     of    the    Court’s
                    attention.

               Woods, 939     A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise requirements of an Anders brief:

                    [T]he Anders brief that
                    accompanies court-appointed
                    counsel’s petition to withdraw
                    . . . must: (1) provide a
                    summary of the procedural
                    history   and     facts,    with
                    citations to     the     record;


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                        (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 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.

            Id. at 1248. If this Court determines that appointed
            counsel has met these obligations, it is then our
            responsibility “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 1248. In so doing, we review not only the
            issues identified by appointed counsel in the Anders
            brief, but examine all of the proceedings to “make
            certain that appointed counsel has not overlooked the
            existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

      Regarding the requirements of Anders, Attorney Foltz has filed a

petition that avers that, after a thorough review of appellant’s case, he finds

the appeal to be wholly frivolous. He has also filed a brief that attempts to

set forth the issues that might arguably support the appeal. He identifies the

issue in the statement of the question of arguable merit in the brief as: “The

Commonwealth failed to produce sufficient evidence           that [appellant]

committed the offenses because his limited understanding of the English



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language raises doubt that he had the requisite mens rea to commit the acts

charged.” (Anders brief at 5.)

      The body of the argument section of the brief does not adequately

address the issue contained in the statement of the question of arguable merit,

so the brief is not in compliance with Anders. While Attorney Foltz argues

there is sufficient evidence of record to establish that appellant possessed the

necessary mens rea to be convicted of simple assault at 18 Pa.C.S.A.

§ 2701(a)(1), appellant was convicted of simple assault at 18 Pa.C.S.A.

§ 2701(a)(4).     The trial court instructed the jury on the elements of

Section 2701(a)(4), 18 Pa.C.S.A. § 2701(a)(4), and the jury informed the trial

court that appellant was convicted under Section 2701(a)(4). (See notes of

testimony, 1/17/18 at 115-116; 1/18/18 at 3-4.)

      The relevant statutes provide as follows:

            (a)   Offense defined.--Except as provided under
                  section 2702 (relating to aggravated assault), a
                  person is guilty of assault if he:

                  (1)    attempts to cause or intentionally,
                         knowingly or recklessly causes
                         bodily injury to another;

                  ....

                  (4)    conceals or attempts to conceal a
                         hypodermic needle on his person
                         and intentionally or knowingly
                         penetrates a law enforcement
                         officer or an officer or an employee
                         of a correctional institution, county
                         jail or prison, detention facility or
                         mental hospital during the course of


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                          an arrest or any search of the
                          person.

18 Pa.C.S.A. § 2701(a)(1) and (4).

      Attorney Foltz reaches the conclusion that the evidence was sufficient

to establish that appellant acted recklessly if not intentionally and knowingly.

(Anders brief at 15.) However, recklessly causing bodily injury to another

person is an element of 18 Pa.C.S.A. § 2701(a)(1) not § 2701(a)(4). While

the appeal may in fact be frivolous, Attorney Foltz cannot argue that there

was sufficient evidence to convict under Section 2701(a)(1) when appellant

was convicted under Section 2701(a)(4).

      Due to Attorney Foltz’s failure to comply with Anders, we deny

Attorney Foltz’s petition to withdraw as counsel. We instruct counsel to file

either a compliant Anders/Santiago brief or an advocate’s brief within

30 days of the date of this Memorandum. Appellant and the Commonwealth

may respond within 30 days of counsel’s filing of his brief.

      Application to withdraw as counsel denied. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 2/6/19




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