J-S43027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 SEPTEMBER 11, 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 remand for further proceedings consistent with this

memorandum.

      Police observed a car (the driver of which was later identified as

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 poll,

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.

      Pursuant to a search incident to arrest, 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, Kwaha was sentenced 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




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to file a 1925(b) statement was filed. As of this date, no 1925(b) statement

or motion for extension has been filed.

      A defendant’s failure to file a concise statement of errors in compliance

with Rule 1925 generally results in a waiver of all issues on appeal. See

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998); Commonwealth v.

Castillo, 888 A.2d 775 (Pa. 2005). However, our Supreme Court has

previously recognized that a remedy is needed in circumstances where

counsel fails to file a Rule 1925 statement:

      [W]hen all of a criminal defendant's issues are waived on direct
      appeal under Lord due to his attorney's failure to file a
      Pa.R.A.P.1925(b) statement, we will presume that the defendant
      suffered prejudice due to the denial of effective assistance of
      counsel. As counsel's actions […] resulted in the denial of the
      criminal defendant's right to a direct appeal, we held that the
      appropriate remedy was to reinstate the defendant's right to
      pursue a direct appeal.

Castillo, 888 A.2d at 780. Indeed, Rule 1925(c)(3) provides that

      [i]f an appellant in a criminal case was ordered to file a
      Statement and failed to do so, such that the appellate court is
      convinced that counsel has been per se ineffective, the appellate
      court shall remand for the filing of a Statement nunc pro tunc
      and for the preparation and filing of an opinion by the judge.

      Here, counsel’s failure to file a Rule 1925 statement constitutes per se

ineffectiveness and deprived Kwaha of meaningful review of his appeal. In

order to restore a defendant’s rights on appeal, the most effective means is

to remand for counsel to file a concise statement. See Commonwealth v.

McBride, 957 A.2d 752, 756 (Pa. Super. 2008).



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      However, it is notable that Kwaha’s counsel submitted a brief and a

petition to withdraw pursuant to Anders. 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

Kwaha that he has the right to proceed pro se or the right to retain new

counsel. Kwaha has not filed a response.

      In regards to the Rule 1925(b) statement, pursuant to the recent

amendments of that rule, if counsel intends to submit an Anders brief, the

proper procedure is provided in Pa.R.A.P. 1925(c)(4). At the time the trial

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court directed counsel to file a concise statement he could have either (1)

complied with the order and filed a Rule 1925(b) statement or (2) filed a

statement of intent to file an Anders brief. See McBride, 957 A.2d at 757;

Pa.R.A.P. 1925(c)(4). Kwaha’s counsel did neither.

      “[A]bsent the proper filing of any statement of record by counsel, this

Court cannot properly consider counsel’s request to withdraw.” McBride,

957 A.2d at 758. See also Pa.R.A.P. 1925(c)(4) Note. Accordingly, we

remand for the filing of either a concise statement of matters complained of

on appeal pursuant to Pa.R.A.P. 1925(b) or a statement of intent to file an

Anders brief pursuant to Rule 1925(c)(4). See id. Counsel must choose one

of the two options within fifteen days of the filing of this memorandum.

      If counsel files a concise statement of errors complained of on appeal,

the trial court shall, within thirty days, file a Rule 1925(a) opinion. If counsel

files a statement of intent to file an Anders brief, a trial court opinion is not

necessary and the trial court record shall be promptly certified and

transmitted back to this Court.

      Remanded for further proceedings consistent with this memorandum.

Panel jurisdiction retained.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2015




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