J-S69032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RANDELL HOLLY

                            Appellant                  No. 407 EDA 2014


       Appeal from the Judgment of Sentence entered February 11, 2011
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos: CP-51-CR-0008395-2009;
              CP-51-CR-0008456-2009; CP-51-CR-0009089-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.:                          FILED JANUARY 16, 2015

        Appellant, Randell Holly, appeals the judgment of sentence entered

February 11, 2011 by the Court of Common Pleas of Philadelphia County.

On direct appeal, Appellant raises one claim of ineffective assistance of

counsel pertaining to trial counsel. Because this claim is not cognizable on

direct appeal under the circumstances of this case, we affirm the judgment

of sentence, without prejudice to Appellant’s right to raise it in a timely Post

Conviction Relief Act (PCRA) petition.1        Counsel has filed a brief under

Anders v. California, 386 U.S. 738 (1967), and petitioned to withdraw as

counsel, alleging that this appeal is wholly frivolous. Upon review, we grant

the petition to withdraw.
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-46.
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      The trial court summarized the relevant background of the case in its

Rule 1925(a) opinion, which reads:

      On November 22, 2010, following a jury trial, Appellant was
      convicted of indecent assault, corrupting the morals of a minor,
      and unlawful contact with a minor. These charges stemmed
      from Appellant’s molestation of three young children, ages 7, 8,
      and 9. On February 11, 2011, [the trial court] sentenced
      Appellant to three and one-half (3 1/2) to seven (7) years’
      incarceration, followed by six (6) years’ probation. Appellant
      filed neither post-sentence motions nor a direct appeal.

      On March 12, 2012, Appellant filed a [PCRA petition]. On June
      12, 2013, Appellant’s PCRA counsel filed an Amended Petition
      alleging that trial counsel rendered ineffective assistance by
      failing to file post-sentence motions challenging the weight of
      the evidence and the discretionary aspects of Appellant’s
      sentence, and by failing to file a direct appeal.     Appellant
      requested permission to file post-sentence motions and a direct
      appeal nunc pro tunc.

      On January 17, 2014, [the trial court] held an evidentiary
      hearing and reinstated Appellant’s right to file a direct appeal of
      his conviction and sentence, but denied his request to file post-
      sentence motions. [This appeal followed].

Trial Court Opinion, 4/29/14, at 1-2.

      On appeal, Appellant raises the following issue:

      Trial counsel was ineffective for failing to investigate and call as
      witnesses at trial Khadejah Catley and Lamar, both of whom
      would have testified that the victims had a reputation for lying.

Appellant’s Brief at 10.

      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.    See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.



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2009); see also 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 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

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     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,

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.

     Before we can address the merits of this case, however, we must

determine preliminarily whether a claim for ineffective assistance of counsel

(IAC) is reviewable by this Court at this procedural juncture.            For the

reasons explained below, we conclude it is not.

     As noted the by the trial court, this Court cannot review a claim for

ineffective assistance of counsel at this stage.         In Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed the general

principle that IAC claims must be deferred to collateral review.                See

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Notwithstanding this

general rule, the Supreme Court created two limited exceptions, both falling

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within the trial court’s discretion. The Holmes Court summarized the two

exceptions as follows:

       First, we appreciate that there may be extraordinary
       circumstances where a discrete claim (or claims) of trial counsel
       ineffectiveness is apparent from the record and meritorious to
       the extent that immediate consideration best serves the
       interests of justice; and we hold that trial courts retain their
       discretion to entertain such claims.

       ....

       Second, with respect to other cases and claims, including cases
       such as Bomar[2] and the matter sub judice, where the
       defendant seeks to litigate multiple or prolix claims of counsel
       ineffectiveness, including non-record-based claims, on post-
       verdict motions and direct appeal, we repose discretion in the
       trial courts to entertain such claims, but only if (1) there is good
       cause shown, and (2) the unitary review so indulged is preceded
       by the defendant’s knowing and express waiver of his
       entitlement to seek PCRA review from his conviction and
       sentence, including an express recognition that the waiver
       subjects further collateral review to the time and serial petition
       restrictions of the PCRA. In other words, we adopt a paradigm
       whereby unitary review may be available in such cases only to
       the extent that it advances (and exhausts) PCRA review in time;
       unlike the so-called Bomar exception, unitary review would not
       be made available as an accelerated, extra round of collateral
       attack as of right. . . . . This exception follows from the
       suggestions of prior Court majorities respecting review of prolix
       claims, if accompanied by a waiver of PCRA review.

Holmes, at 563-64 (footnotes omitted).3


____________________________________________


2
    Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).
3
 The Supreme Court summarized the impact of Holmes on Grant and
Bomar as follows:

(Footnote Continued Next Page)


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        Here, the trial court did not find the claim to be meritorious and

apparent from the record as to require immediate vindication. Additionally,

Appellant did not allege any “good cause” for seeking unitary review of his

ineffectiveness claim and did not state he intended to waive collateral

review.    Thus, neither of the exceptions outlined in Holmes is applicable

here.     See also Trial Court Opinion, 4/2914, at 4.      The instant claim,

therefore, is not reviewable on this direct appeal. Holmes, 79 A.3d 563-64;

see also Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super. 2013)

(IAC claim not reviewable on direct appeal because claim was not apparent

from record and appellant did not waive PCRA review).         Accordingly, we

affirm the judgment of sentence without prejudice to Appellant to raise this

IAC claim in a timely PCRA petition, and grant counsel’s petition to withdraw.

        Judgment of sentence affirmed. Petition to withdraw granted.




                       _______________________
(Footnote Continued)

        [W]e hold that Grant’s general rule of deferral to PCRA review
        remains the pertinent law on the appropriate timing for review of
        claims of ineffective assistance of counsel; we disapprove of
        expansions of the exception to that rule recognized in Bomar;
        and we limit Bomar, a case litigated in the trial court before
        Grant was decided and at a time when new counsel entering a
        case upon post-verdict motions was required to raise
        ineffectiveness claims at the first opportunity, to its pre-Grant
        facts.

Holmes, 79 A.3d at 563.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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