J-S06008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RUDOLPH WOODSON

                            Appellant                  No. 2444 EDA 2015


               Appeal from the Judgment of Sentence July 20, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0003786-2014


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                               FILED JUNE 29, 2017

       Rudolph Woodson appeals from the July 20, 2015 judgment of

sentence entered in the Philadelphia County Court of Common Pleas

following his bench trial convictions for criminal attempt to commit murder,

aggravated assault, simple assault, recklessly endangering another person

(“REAP”), and possessing an instrument of crime (“PIC”).1             Woodson’s

appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and a petition to withdraw from representation. Because

we find a non-frivolous issue of record, we deny counsel’s petition to

withdraw and direct counsel to file an advocate’s brief.
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
         18 Pa.C.S. §§ 901(a), 2702(a), 2701(a), 2705, and 907(a),
respectively.
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     The trial court set forth the following factual and procedural history:

           On January 24, 2014, . . . Woodson[] was arrested and
        charged with [the aforementioned offenses]. [Woodson]
        went to trial before this Court on March 16, 2015 . . .

            At the trial for [Woodson], the complainant, [Victim],
        testified that she had first met [Woodson] about a month
        or two before January 24, 2014 and they had hung out a
        few times prior to that date. She testified that in the late
        hours of January 23, 2014, [Woodson] had picked her up
        so that the two of them could go out to eat. Before they
        went to go eat, she testified that [Woodson] asked her if
        she wanted to get some drugs and they went to her
        neighborhood to buy some [phencyclidine (“PCP”)]. After
        buying the PCP, they then went back to [Woodson]’s house
        . . . [on] Butler Street in Philadelphia, PA.       [Victim]
        testified that once at his house, they went up to his
        bedroom where she had been before and they sat on his
        bed where they talked and [Woodson] smoked the PCP.
        She testified that [Woodson] then left the room and when
        he came back in the room he jumped on her while she was
        sitting on the bed and started stabbing her. [Victim]
        testified that [Woodson] was stabbing her everywhere “in
        my face and my neck…. he stabbed me in my hand,
        stabbed me in my wrist, he stabbed me right here.[”]
        [Victim] went on to show the Court all the places on her
        body where she had been stabbed or cut and pictures of
        her injuries [were] admitted into evidence.

           [Victim] testified that at some point [Woodson] stopped
        stabbing her and walked out of the room. When she tried
        to leave [Woodson] pushed her back into another room
        and “started stabbing me more and hitting me in the head
        and bent over me, threatening me, and talking trash.”
        [Woodson] then started to wipe up the blood and that is
        when [Victim] tried to use her phone to call her sister and
        9-1-1. [Woodson] told her to get up and leave so she
        managed to get down the steps and went out the front
        door. When she got outside she initially fell to the ground
        but was able to get herself back up and make it over to the
        Checkers by his house where she laid down near a
        telephone pole. [Woodson] followed her in his van and


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       tried to get her to go inside but she would not.      At that
       point the police officers arrived on the scene.

          Police Officers Ray Sutton and Jacqueline McAllister
       both testified that on January 24, 201[4], they responded
       to a call to go [to] Broad and Butler Streets. Officer
       Sutton testified that when he and his partner arrived at the
       location, he observed [Victim] laying down in a fetal
       position in the snow near a telephone pole close to
       Checkers. There was blood around her. Officer McAllister
       testified that [Victim] was unresponsive and that she had
       blood all over her face, her head, her neck, and her chest.
       She tried to say something to the officers at first but then
       she went completely out of it. The officer then called for
       an ambulance. Both officers testified that [Woodson] was
       there at the scene and that he did not have any visible
       signs of injury nor did h[e] tell them he needed any
       medical attention. Officer Sutton testified that [Woodson]
       stated to them that he had stabbed [Victim] after the two
       of them had been involved in an altercation. [Woodson]
       was then placed under arrest and put into the back of the
       police vehicle.     [Woodson] told the officers that the
       incident occurred at his home [on] Butler Street.
       [Woodson] indicated to them that the knife he had washed
       off [was] in the kitchen. Officer McAllister testified that he
       then went over to [Woodson]’s home to secure the scene.
       When he arrived there, he noticed blood on the doorway
       leading up to the steps, blood on the wall all the way up
       the steps, blood all over the hallway, and blood all over the
       room, on the mattress, and on the floor. The pictures of
       the crime scene that were taken were placed into evidence
       which Officer McAllister described for the Court. Police
       Officer Edward Fidler from the Philadelphia [Police C]rime
       [S]cene [U]nit also testified and described the photographs
       that were admitted into evidence depicting the crime scene
       and the knife that was recovered from [Woodson]’s home.

                                    ...

           [At the conclusion of the trial,] the Court found
       [Woodson] guilty of all charges[. On July 20, 2015, the
       trial court sentenced Woodson] . . . to fifteen to forty years
       incarceration on the attempted murder[,] which the
       aggravated and simple assault had merged with, two and a
       half to five years incarceration consecutive on PIC, and one

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           to two years incarceration consecutive on REAP, for a total
           sentence of eighteen and a half to forty-seven years
           incarceration.

Trial Ct. Op., 2/9/16, at 1-4 (citations omitted).        On August 13, 2015,

Woodson timely filed a notice of appeal.         That same day, Woodson’s trial

counsel filed a motion to withdraw, which the trial court granted. Woodson

was appointed appellate counsel, who, on December 1, 2015,2 filed a

statement of intent to file an Anders brief pursuant to Pennsylvania Rule of

Appellate Procedure 1925(c)(4). On February 9, 2016, the trial court issued

an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).3

       On July 21, 2016, appellate counsel filed an Anders brief and a

petition to withdraw as counsel with this Court.       On September 19, 2016,

Woodson filed two applications for relief with this Court: one asking this

Court to dismiss his appellate counsel and allow him to proceed pro se, and

the other “requesting leave of the Court to . . . exercise U.S. Constitutional

First Amendment guarantee right to petition lower court to properly exhaust

available state court remedies for relief in order to determine the ultimate

facts.” App. for Remand, 9/16/16 (unnecessary capitalization omitted). On
____________________________________________


       2
        On September 4, 2015, Woodson’s trial counsel filed a Pennsylvania
Rule of Appellate Procedure 1925(b) statement, raising three issues. In his
Rule 1925(c)(4) statement, appellate counsel notes these issues and their
lack of merit.
       3
         Woodson also filed a number of letters directed to trial and appellate
counsel with this Court. In accordance with Commonwealth v. Jette, 23
A.3d 1032 (Pa. 2011), this Court noted Woodson’s filings and forwarded the
letters to his appellate counsel of record.



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October 7, 2016, we granted Woodson leave to file a response, either pro se

or through privately retained counsel, within 30 days.     On November 15,

2016, Woodson filed a pro se response to the motion to withdraw.

        When presented with an Anders brief, this Court may not review the

merits of the underlying issues until we address counsel’s request to

withdraw.    Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.

2007) (en banc). Before we address the issues raised in the Anders brief,

we must first determine whether counsel’s petition to withdraw satisfies the

procedural requirements of Anders. To be permitted to withdraw, 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.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc).

        Here, appellate counsel has petitioned the court stating that after a

conscientious examination of the record, “[he] f[ou]nd the appeal to be

wholly frivolous.” Pet. to Withdraw, 7/21/16, at 1. Appellate counsel has

also certified that he furnished a copy of the Anders brief to Woodson and

sent Woodson a letter advising him that “[he] ha[s] the right to retain new

counsel to pursue the appeal or to proceed pro se to raise any points that

[he] deem[s] worthy of the Court’s attention.”    Ltr. to Woodson, 7/21/16.

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We conclude that counsel’s petition to withdraw complies with the procedural

dictates of Anders.

     We must next determine whether counsel’s Anders brief meets the

requirements   established   by   the   Pennsylvania   Supreme    Court   in

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). 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 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.

Id. at 361.

     Here, appellate counsel has provided a summary of the procedural and

factual history with appropriate citations to the record.      Counsel has

evaluated the sufficiency and weight of the evidence, as well as Woodson’s

sentence, stated that such an appeal is frivolous, and set forth his reasons

for that conclusion. We conclude that appellate counsel has complied with

the minimum technical requirements of Anders and Santiago.        However,

because Woodson’s pro se response identified a non-frivolous issue not

raised in counsel’s Anders brief, we conclude that appellate counsel has

failed to meet the substantive requirements of Anders and Santiago.

     Woodson has filed a pro se response to counsel’s Anders brief and

petition to withdraw. While normally we would address the issues raised in



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the Anders brief first, our review of Woodson’s pro se response and the

record reveals a non-frivolous issue that requires further briefing.

        In his pro se response, Woodson argues that his sentence is illegal

because he was “not charged, tried, and convicted of attempted murder

resulting in serious bodily injury[.]” Woodson’s Resp. at 8. Woodson thus

claims that “the fact finder was limited to a finding of guilty and sentencing

on attempted murder generally.” Id.

        Attempted murder, whether or not serious bodily injury is inflicted, is

charged under the criminal attempt provision in section 901 of the Crimes

Code.     See 18 Pa.C.S. § 901.      Section 1102(c) governs the maximum

sentences for attempted murder:

          (c)    Attempt,      solicitation    and     conspiracy.--
          Notwithstanding section 1103(1) (relating to sentence of
          imprisonment for felony), a person who has been
          convicted of attempt, solicitation or conspiracy to commit
          murder, murder of an unborn child or murder of a law
          enforcement officer where serious bodily injury results may
          be sentenced to a term of imprisonment which shall be
          fixed by the court at not more than 40 years. Where
          serious bodily injury does not result, the person may be
          sentenced to a term of imprisonment which shall be fixed
          by the court at not more than 20 years.

18 Pa.C.S. § 1102(c). “Thus, the statute imposes a condition precedent to

the imposition of a maximum term of imprisonment of up to forty years,

specifically, that ‘serious bodily injury’ must have resulted from the

attempted murder. Otherwise, the sentence shall be not more than twenty

years.” Commonwealth v. Johnson, 910 A.2d 60, 66 (Pa.Super. 2006).



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      In Johnson, we held that, pursuant to the United States Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), where

the defendant is charged with attempted murder — serious bodily injury

inflicted, it is “solely the responsibility of the jury . . . to find, beyond a

reasonable doubt, whether a serious bodily injury resulted from the . . .

attempted murder.”     Id. at 67.   There, we concluded that Johnson could

only be sentenced to the maximum 20 years’ incarceration for attempted

murder because

         (1) [he] was not charged with attempted murder resulting
         in serious bodily injury, (2) [he] was not on notice that the
         Commonwealth sought either to prove that a serious bodily
         injury resulted from the attempted murder or to invoke the
         greater maximum sentence, and (3) the jury was never
         presented with, nor rendered a decision on, the question of
         whether a serious bodily injury resulted from the
         attempted murder.

Id.

      In contrast, in Commonwealth v. Reid, 867 A.2d 1280 (Pa.Super.

2005), despite recognizing the possible Apprendi issue, we upheld a

maximum sentence of 40 years’ incarceration where Reid was not formally

charged with attempted murder — serious bodily injury inflicted.           We

reasoned that because Reid pled nolo contendere after the Commonwealth

had indicated its desire to seek a maximum sentence of 40 years’

incarceration and recited facts showing that Reid inflicted serious bodily

injury, Reid’s rights were not violated.




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     Here, neither the criminal complaint nor the criminal information

charged Woodson with attempted murder — serious bodily injury inflicted.

In his written jury trial waiver, Woodson acknowledged a possible maximum

sentence of 40 years. See Jury Tr. Waiver Colloquy, 3/16/15, at 3. Further,

at the oral colloquy, the following exchange occurred:

        THE COURT: Do you have any questions about the
        charges against you, sir?

        [WOODSON]: I been pretty much familiar with them.

        THE COURT:     I’ll just go over them now.

           Attempted murder is a felony of the first degree.
        It has a maximum sentence of 40 years in prison and
        a $25,000 fine. Aggravated assault is a felony of the first
        degree. You can go to jail for 20 years and get a $25,000
        fine. Do you have any questions about those charges?

        [WOODSON]: No.

N.T., 3/16/15, at 7 (emphasis added). However, neither the written nor the

oral colloquy referenced the element of serious bodily injury.         At the

conclusion of the trial, the trial court found Woodson guilty of attempted

murder and found that he possessed a specific intent to kill and that he

caused serious bodily injury.      N.T., 3/19/15, at 37.       These factual

circumstances arguably fall somewhere between Johnson and Reid.

     Further, Woodson also challenges the sufficiency of the criminal

information and the     Commonwealth’s failure       to   amend the   criminal

information.   According to Woodson, the Commonwealth charged him only

with attempted murder generally, instead of attempted murder — serious



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bodily injury inflicted, and never amended the criminal information to include

the element of serious bodily injury.        Woodson thus argues that the

Commonwealth did not give him proper notice that serious bodily injury was

an issue in the attempted murder charge and, therefore, the trial court could

only impose a maximum sentence of 20 years’ incarceration.

      Generally, the Commonwealth’s provision of a criminal information to

the defendant meets the notice requirements of the Sixth Amendment to the

United States Constitution and Article I, Section 9 of the Pennsylvania

Constitution.   See Commonwealth v. Hatchin, 709 A.2d 405, 408

(Pa.Super. 1998).   The Sixth Amendment and Article I, Section 9 “require

that the accused be provided with sufficient notice to prepare a defense and

to ensure that he will not be twice put in jeopardy for the same offense.”

Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 1994).              Similarly,

“an [i]nformation is sufficient if it sets forth the elements of the offense

intended to be charged with sufficient detail that the defendant is apprised of

what he must be prepared to meet, and may plead double jeopardy in a

future prosecution based on the same set of events.”      Id. at 1095. “This

may be accomplished through use of the words of the statute itself as long

as ‘those words of themselves fully, directly, and expressly, without any

uncertainty or ambiguity, set forth all the elements necessary to constitute

the offense intended to be punished.’” Id. at 1095-96 (quoting Hamling v.

United States, 418 U.S. 87, 117 (1974)).




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         However, if there is “a variance between the allegations of an

information and proof at trial, such variance is harmless error unless a

defendant could be misled at trial, prejudicially surprised in efforts to

prepare a defense, precluded from anticipating the prosecution’s proof, or

otherwise impaired with respect to a substantial right.” Commonwealth v.

Lohr, 468 A.2d 1375, 1377 (Pa. 1983).

         As noted above, the record shows that neither the criminal complaint

nor the criminal information charged Woodson with attempted murder —

serious bodily injury inflicted, and Woodson was only apprised of the

possible maximum sentence of 40 years’ incarceration immediately before

trial,       without   an   explanation   that     such   a   sentence   required   the

Commonwealth to prove that Woodson inflicted serious bodily injury. Thus,

while it appears that Woodson understood that he could face 40 years’

incarceration, it is unclear whether Woodson understood that this was an

enhanced penalty predicated on a finding that he inflicted serious bodily

injury.        Considering that the Sixth Amendment and Article I, Section 9

require that the criminal information “set[] forth the elements of the offense

intended to be charged with sufficient detail that the defendant is apprised of

what he must be prepared to meet,” Alston, 651 A.2d at 1095, we conclude

that this issue is not wholly frivolous.4

____________________________________________


         4
       In light of this disposition, we do not address the other issues raised
in the Anders brief and Woodson’s pro se response. The unresolved
(Footnote Continued Next Page)


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      Because a non-frivolous issue appears of record, we deny appellate

counsel’s petition to withdraw and direct counsel to file an advocate’s brief

within 45 days addressing the issue identified above.5 The Commonwealth

may file a response brief within 30 days of the filing of the advocate’s brief.

      Petition to withdraw denied. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017




                       _______________________
(Footnote Continued)

question whether the trial court was permitted to find Woodson guilty of
attempted murder — serious bodily injury bears on the sufficiency of the
evidence, the weight of the evidence, and the legality of Woodson’s
sentence.
      5
        We do not express an opinion as to the relative merit of this issue,
but only conclude that this issue is non-frivolous and requires briefing.



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