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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANIEL JAMES ROACH

                            Appellant               No. 2005 WDA 2013


          Appeal from the Judgment of Sentence November 22, 2013
              In the Court of Common Pleas of McKean County
             Criminal Division at No(s): CP-42-CR-0000351-2013


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 09, 2014

        A jury found Daniel Roach guilty of flight to avoid apprehension1, and

the trial court sentenced him to 36-72 months’ imprisonment. Roach filed a

timely notice of appeal, but his counsel advised that he would file an

Anders2 brief stating that there were no non-frivolous issues to raise on

appeal. Counsel subsequently filed an Anders brief in this Court along with

a motion to withdraw as counsel. We affirm, and we grant counsel’s motion

to withdraw.

        While on parole from a New York felony conviction, Roach left New

York and traveled to Bradford, Pennsylvania.     A New York court issued an

arrest warrant for Roach for leaving New York while on parole.      New York
____________________________________________


1
    18 Pa.C.S. § 5126.
2
    Anders v. California, 386 U.S. 738 (1967).
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parole authorities transmitted the warrant to Bradford police, who arrested

Roach with the assistance of a Pennsylvania parole officer.         A jury found

Roach guilty of flight to avoid apprehension.          Certified Record, Item 13

(verdict slip). The verdict slip also inquired whether Roach’s crime in New

York was a felony or a misdemeanor.              The jury answered that it was a

felony. Id.

        On November 22, 2013, the trial court imposed sentence.              On

December 16, 2013, Roach filed a timely notice of appeal. On December 30,

2013, Roach’s counsel filed a Pa.R.A.P. 1925(c)(4) statement that he

intended to file an Anders brief.

        In this court, Roach’s counsel filed an Anders brief and an application

to withdraw from representation pursuant to Anders and its Pennsylvania

counterpart, Commonwealth v. Santiago.3                Before addressing Roach’s

brief, we will first pass on the application to withdraw. Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa.Super.2007) (en banc).

        Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

Supreme Court in Santiago. The brief 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
____________________________________________


3
    978 A.2d 349 (Pa.2009).



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      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.       Counsel must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her right to “(1) retain new counsel to pursue the appeal;

(2) proceed pro se on appeal; or (3) raise any points that the appellant

deems worthy of the court’s attention in addition to the points raised by

counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super.2007).     Substantial compliance with these requirements is

sufficient.   Commonwealth       v.   Wrecks,     934    A.2d    1287,      1290

(Pa.Super.2007). “After establishing that the antecedent requirements have

been met, this Court must then make an independent evaluation of the

record to determine whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

      Here, counsel stated in his motion to withdraw that he reviewed the

record and determined there were no non-frivolous issues to raise on appeal.

He explained that he notified Roach of his withdrawal request, supplied him

with a copy of the Anders brief, and sent him a letter explaining his rights

to proceed pro se or with substitute counsel and to raise any additional

points worthy of the court’s attention. See Letter to Roach, April 11, 2014,

attached as Appendix to the Motion to Withdraw as Counsel. The Anders

brief itself summarizes the facts and procedural history of the case with



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citations to the record, refers to evidence of record that might arguably

support the issue raised on appeal, analyzes the evidence in light of

Pennsylvania law, and concludes that the appeal lacks arguable merit.

Accordingly,   counsel   has   substantially   complied    with   the   procedural

requisites of Anders and Santiago.

     Counsel’s Anders brief identifies one issue for consideration: “Was the

evidence sufficient to support the jury’s verdict?”       Anders Brief, pp. 3-6.

We agree with counsel that it was.

     The following evidence was adduced during Roach’s jury trial. On April

15, 2013, Agent Powers of the New York State Division of Parole advised

Bradford Assistant Chief Michael Ward that New York authorities had issued

an arrest warrant for Roach based on Roach’s violation of New York parole.

Roach was on parole from a New York conviction for a class C felony. Agent

Powers advised that Roach would be found at 40 Pleasant Street in Bradford.

N.T., 11/13/13 (“Tr.”), pp. 6-11.

     The trial court admitted into evidence a certificate of conviction from

New York stating that Roach had a Class C felony conviction “from the

Allegheny County Court[,] Belmont, New York.” Tr., pp. 10-11.

     Agent Powers faxed the arrest warrant to Assistant Chief Ward.

Assistant Chief Ward and Officer David Feely, both of whom were in full

uniform, drove a marked police car to 40 Pleasant Street.          Tr., pp. 6-11.

Two other officers also visited this address: Pennsylvania Parole Officer



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Hartman, who wore plain clothes with a badge hanging on a chain around

his neck and a bright yellow taser on his belt, and Bradford Police Officer

Lama, who wore plain clothes and a badge and also had a firearm and vest.

Tr., pp. 11-13.

      Assistant Chief Ward and Officer Lama knocked on the door and

announced “police”, while Officer Feely and Agent Hartman covered the front

and back of the residence. After knocking, Assistant Chief Ward and Officer

Lama heard a loud banging sound inside the residence for about 30 seconds

which sounded like someone banging into an interior wall and/or crawling in

between the floors. When the noise subsided, Roach’s wife, Jennifer Dinch,

opened the door, and the officers stated that they had a warrant for Roach.

Dinch permitted them to enter and search the house, but the officers could

not find Roach. Tr., pp. 13-17, 32-35.

      During the house search, Parole Agent Hartman, who was still outside

the house, observed Roach burst out of the basement door. Agent Hartman

yelled at Roach to stop, chased him across Pleasant Street into a yard, and

tackled him as other officers converged to help.   Roach attempted to run

around Officer Feely during the chase. Feely struck Roach with his taser and

yelled that he was under arrest, but the taser wires did not penetrate him.

After Roach was tackled, he said "I'm done" and added that he was not

ready to go back. Tr, pp. 17-21. When Assistant Chief Ward arrived at the

scene, he recognized Roach from prior meetings. Tr., pp. 28, 43-53, 63-70.


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      Roach testified that he had not been living at 40 Pleasant Street prior

to the incident in question but returned there because of death threats

against his wife and her son. Tr., pp. 78-79. Roach’s wife, Dinch, testified

that she had received threats and had notified the police, but that to her

knowledge, the police had not investigated the matter. Tr., p. 103. Roach

claimed that he thought the police officers were actually men coming to kill

his wife, so he ran away from the house to deflect the mens’ attention from

his wife. He admitted that he was in violation of New York parole by being in

Pennsylvania.


      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

            The standard we apply in reviewing the sufficiency of the
            evidence is whether viewing all the evidence admitted at
            trial in the light most favorable to the verdict winner, there
            is sufficient evidence to enable the fact-finder to find every
            element of the crime beyond a reasonable doubt. In
            applying [the above] test, we may not weigh the evidence
            and substitute our judgment for the fact-finder. In
            addition, we note that the facts and circumstances
            established by the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a
            defendant's guilt may be resolved by the fact-finder unless
            the evidence is so weak and inconclusive that as a matter
            of law no probability of fact may be drawn from the
            combined circumstances. The Commonwealth may sustain
            its burden of proving every element of the crime beyond a
            reasonable doubt by means of wholly circumstantial
            evidence. Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the [trier] of fact
            while passing upon the credibility of witnesses and the



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            weight of the evidence produced, is free to believe all, part
            or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

      18 Pa.C.S. § 5126, entitled “Flight To Avoid Apprehension,” provides in

relevant part:

            A person who willfully conceals himself or moves or
            travels within or outside this Commonwealth with the
            intent to avoid apprehension, trial or punishment
            commits a felony of the third degree when the crime
            which he has been charged with or has been
            convicted of is a felony and commits a misdemeanor
            of the second degree when the crime which he has
            been charged with or has been convicted of is a
            misdemeanor.

Id. The evidence demonstrates that (1) Roach was convicted of a felony in

New York; (2) he traveled to this Commonwealth from New York while on

parole for this felony; (3) he concealed himself in his wife’s residence in this

Commonwealth to avoid punishment or apprehension relating to his New

York conviction; and (4) he attempted to escape, i.e., “move or travel”

within this Commonwealth by fleeing from his wife’s residence when

Bradford police arrived. Thus, the evidence is sufficient to sustain Roach’s

conviction under section 5126.


      Finally, our independent review of the record has revealed no non-

frivolous claims that Roach could have raised, and we agree with counsel

that this appeal is wholly frivolous. Accordingly, we affirm the judgment of

sentence.

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     Judgment of sentence affirmed.   Counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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