J-S57024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    CRIZON JOSHUA KINGSBERRY

                             Appellant               No. 519 MDA 2019


      Appeal from the Judgment of Sentence Entered November 21, 2018
               In the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0005104-2016


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 21, 2020

       Appellant, Crizon Joshua Kingsberry, appeals from the judgment of

sentence entered on November 21, 2018 in the Court of Common Pleas of

Lancaster County following his conviction of indecent assault of a person less

than 13 years of age, unlawful contact with a minor (two counts), corruption

of minors (two counts), rape of a child, statutory sexual assault, and indecent

exposure.1 His counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1969), as refined by Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009). In the brief, Appellant’s counsel explored challenges to the

sufficiency of evidence and to the discretionary aspects of sentence. Counsel

concurrently filed an application for leave to withdraw. Following review, we


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118 Pa.C.S.A. §§ 3126(a)(7), 6318(a)(1), 6301(a)(1)(ii), 3121(c),
3122.1(b)., and 3127(a), respectively.
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grant counsel’s application for leave to withdraw and affirm Appellant’s

judgment of sentence.
     Our review of the record discloses that Appellant was charged with the

above-listed offenses upon filing of a complaint on August 9, 2016.        The

complaint alleged that Appellant, who was born on May 7, 1983, committed

various sexual acts during the summers of 2013 and 2014 with the daughters

of his then-girlfriend. The victims’ dates of birth are October 18, 2001 and

January 13, 2004.

      At the conclusion of a four-day trial in June 2018, the jury returned a

verdict on all charges.   Sentencing was deferred pending a pre-sentence

investigation. In accordance with the trial court’s order, Appellant underwent

an evaluation pursuant to 42 Pa.C.S.A. § 9799.24. Based on the evaluation,

the Pennsylvania Sexual Offenders Assessment Board determined Appellant

did not meet the criteria of a sexually violent predator.

      On November 21, 2018, the trial court imposed an aggregate sentence

of 11 to 32 years’ incarceration and advised Appellant of his lifetime

registration obligation as a Tier III sexual offender. Appellant filed a timely

post-sentence motion challenging the sufficiency as well as the weight of the

evidence. Trial counsel contemporaneously filed a motion to withdraw based

on Appellant’s assertions of ineffective assistance of counsel.

      The court granted counsel’s motion to withdraw and appointed new

counsel who filed a supplemental post-sentence motion. Appellant repeated



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his claims regarding the sufficiency and weight of evidence and added claims

relating to the discretionary aspects of sentence and the trial court’s denial of

Appellant’s pre-trial request to discharge counsel.      Counsel was granted

additional time to review the transcripts, to determine whether any

supplemental post-sentence motions might be appropriate.

      Upon completion of his review, counsel advised the court of his

conclusion that the four issues raised in the post-sentence motion were

without merit.   The trial court denied Appellant’s post-sentence motion by

order entered March 15, 2019. This timely appeal followed.

      The trial court entered an order directing counsel to file a concise

statement of errors pursuant to Pa.R.A.P. 1925(b). In response, counsel filed

a notice of intent to file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4),

and advised the court of his intent to withdraw on appeal based on the lack of

any non-frivolous issues. Although not required to do so, the trial court issued

a Rule 1925(a) opinion “to assist the appellate court in its review of the case.”

Rule 1925(a) Opinion, 5/13/19, at 6 n.7 (citing Commonwealth v. McBride,

957 A.2d 752, 758 (Pa. Super. 2008)). Counsel subsequently filed his Anders

brief with this Court as well as an application for leave to withdraw. Appellant

did not respond to the application for leave to withdraw. The Commonwealth

advised this Court that it would not file a response to the Anders brief.

      We begin by discussing counsel’s request to withdraw, a task we must

undertake regardless of the facts and prior to any discussion of the merits of


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any issues on appeal.    Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005). As this Court recognized in Commonwealth v. Cartrette,

83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago

did not change the procedural requirements for requesting withdrawal from

representation. As outlined in Cartrette:

      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.

Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)).

      We conclude counsel has satisfied the procedural requirements set forth

in Anders. He petitioned the court seeking leave to withdraw and confirming

his determination that an appeal would be frivolous, based on his “review of

the record, including the discovery, pretrial transcripts, sentencing transcript,

and issues raised by [Appellant] in his letters, meetings, and phone calls to

counsel.” Application to Withdraw, 8/23/19, at ¶ 2. He furnished a copy of

the Anders brief to Appellant and advised Appellant of his right to obtain

private counsel or proceed pro se if he wished to raise any issues he believed

were meritorious. Notice of Rights Letter, 8/23/19, at 1.

      Having concluded counsel satisfied the procedural requirements of

Anders, we next ascertain whether the brief satisfied the substantive


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mandates prescribed in Santiago.          In Santiago, our Supreme Court

announced:

      [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.

      In the Anders brief, counsel did not provide his own summary of the

procedural history and facts. However, he represented that the trial court’s

factual and procedural history, as set forth in the court’s Rule 1925(a) opinion,

was “concise and accurate.” Anders Brief at 5. See Rule 1925(a) Opinion,

5/13/19, at 1-6.   We agree and further note that counsel did refer to the

record in the analysis of arguable appellate issues.      Anders Brief at 7-8.

Counsel has generally satisfied the first requirement.

      The second required element of an Anders brief is to reference anything

in the record that counsel believes arguably supports the appeal. In his brief,

counsel explores two issues, i.e., sufficiency of evidence and discretionary

aspects of sentencing.    Id. at 7-8.    He also reviewed an issue raised by

Appellant relating to Appellant’s assertion that the trial court denied his

request to discharge trial counsel.     We conclude counsel has satisfied the

second Anders requirement.


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      The third element of Anders requires counsel to set forth the conclusion

that the appeal is frivolous. Counsel offers that conclusion with respect to

each issue presented.     The fourth element requires counsel to state his

reasons for concluding that the appeal is frivolous. Counsel has done so, with

citations to case law, in relation to the sufficiency of evidence and

discretionary aspects challenges.   He also explained that his review of the

record “fail[ed] to reveal any proof that [Appellant] attempted to discharge

[trial counsel].” Id. at 8. Counsel has satisfied the substantive requirements

of Anders.

      Having determined the procedural and substantive requirements of

Anders are satisfied, we must conduct our own independent review of the

record to determine if the issues identified in this appeal are, as counsel

asserts, frivolous, or if there are any other meritorious issues present in this

case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744) (“[T]he

court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds, it

may grant counsel’s request to withdraw.”).

      After conducting a full examination of all the proceedings, we conclude

the case is wholly frivolous. We note that the trial court recognized it was not

required to prepare a Rule 1925(a) opinion in light of counsel’s filing of a

statement of intent to file an Anders brief. Rule 1925(a) Opinion, 5/13/19,

at 6 n.7 (citing McBride, 957 A.2d 752 at 758). As mentioned above, the


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court nevertheless prepared an opinion to assist us in our review of the case.

Id. In the opinion, the trial court thoroughly summarized the background of

the case. Id. at 1-6. The court also meticulously examined possible claims

based on sufficiency of the evidence, id. at 6-15;2 weight of the evidence, id.

at 15-17; discretionary aspects of sentence, id. at 17-22; and trial

continuance (relating to the claimed denial of Appellant’s request to discharge

counsel), id. at 22-28. Based on its examination, the court concluded there

was no merit to any of the issues.

       We agree with the trial court’s analysis of each issue. Therefore, we

adopt as our own, and incorporate by reference, the trial court’s Rule 1925(a)

opinion. Further, based on our own independent review, we conclude there

are no other meritorious issues present.         After full examination of the

proceedings, we find the case is wholly frivolous.         Therefore, we grant



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2 As the trial court explained, because counsel filed a notice of intent to file
an Anders brief, counsel did not specify the element or elements of the
crimes for which the evidence was insufficient. Rule 1925(a) Opinion,
5/13/19, at 6. Consequently, the court addressed each element of each
charge and concluded:

       The evidence, as well as all reasonable inferences drawn
       therefrom viewed in the light most favorable to the
       Commonwealth as the verdict winner, was sufficient to sustain
       [Appellant’s] convictions for rape of a child, statutory sexual
       assault, indecent assault of a person less than 13 years or age,
       unlawful contact with a minor, corruption of minors and indecent
       exposure.

Rule 1925(a) Opinion, 5/13/19, at 15.

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counsel’s application to withdraw and affirm Appellant’s judgment of sentence.

In the event of further proceedings, the parties shall attach a copy of the Rule

1925(a) opinion to their filings.

      Application for leave to withdraw granted.       Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




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