J. S36042/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
JOSEPH BEATTY,                           :          No. 659 EDA 2016
                                         :
                         Appellant       :


            Appeal from the Judgment of Sentence, January 26, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0004022-2015


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 14, 2017

        Joseph Beatty appeals from the January 26, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction in a bench trial of aggravated assault and terroristic

threats.1    The trial court sentenced appellant to 4 years and 6 months to

12 years of incarceration, followed by 3 years of probation, on the

aggravated assault conviction; and a concurrent 1 year of probation on the

terroristic threats conviction.   Shawn K. Page, Esq., has filed an Anders

brief,2 without an accompanying petition, alleging that the appeal is frivolous



1
    18 Pa.C.S.A. §§ 2702(a)(1) and 2706(a)(1), respectively.
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 495
434 A.2d 1185 (Pa. 1981).
J. S36042/17


and including a request to withdraw. Because the Anders brief is deficient,

we deny counsel’s request to withdraw and direct counsel to file either a

compliant Anders brief or an advocate’s brief.

      The record reflects that appellant’s convictions stemmed from an

incident that occurred on February 26, 2015. That evening, the victim, who

was then “Islamically [sic] married” to appellant, was speaking on the phone

with a male friend when appellant became “irate saying this [is] his house,

[the victim is] his wife, nobody’s coming in here.”      (Notes of testimony,

11/18/15 at 6, 10, 11.) As the victim sat on a bed, appellant took the pillow

off of the bed, got on top of the victim, placed the pillow over the victim’s

face, and called her “about a hundred and one bitches.”        (Id. at 12-13.)

Appellant then began choking the victim with one hand and striking her with

the other. (Id. at 13.) While he did so, appellant told the victim that “if he

can’t have [her], no one else will.” (Id. at 35.) The victim testified that she

believes that appellant also kicked her repeatedly, but that everything

became a blur and that she was not certain as to whether she passed out,

but that she does remember the police arriving, putting her in an

ambulance, and taking her to the hospital.       (Id. at 15-16.)    The record

reflects that at some point during this ordeal, the victim was able to call 911.

(Id. at 29-30.)

      At trial, the parties stipulated that the victim was “intubated,

underwent a multitude of x-rays and CAT scans,” and that her injuries



                                     -2-
J. S36042/17


included “closed head trauma, facial lacerations and hemorrhaging, left

maxillary/periorbital   area,”    “upper   jaw,   face   and   eye   swelling   and

hematoma, right mandibular and maxillary swelling and hematoma,” and

“left nasal bone fracture.”      (Id. at 63.)   As a result of these injuries, the

victim was hospitalized for five days. (Id.)

      The record further reflects that following sentencing, appellant filed a

timely motion for reconsideration of judgment of sentence. On February 9,

2016, the trial court denied the motion.

      The trial court provided the remaining procedural history, as follows:

            [Appellant] filed a notice of appeal on February 29,
            2016. On March 2, 2016, the court issued an order
            pursuant to Pa.R.A.P. 1925(b) (“1925(b) order” or
            “the order”) directing [appellant] to file a Concise
            Statement of Errors Complained of on Appeal
            (“Statement”) no later than twenty-one days from
            the order’s date.     On March 10, 2016, defense
            counsel filed a motion to withdraw as counsel with
            the trial court. Defense counsel was directed to file
            the motion with the Superior Court. On March 22,
            2016, defense counsel filed a motion to withdraw
            with the Superior Court. On April 19, 2016, the
            Superior Court ordered the trial court to decide
            defense counsel’s March 10th motion to withdraw as
            counsel without delay. On April 25, 2016, the trial
            court denied defense counsel’s motion to withdraw
            as counsel. [Appellant] failed to file a Statement by
            March 23, 2016, pursuant to the court’s March 2,
            2016 order. Nor did [appellant] file a motion for
            extension of time during this period. To date, no
            such statement has been filed.

Trial court opinion, 6/30/16 at 1-2 (footnotes omitted).




                                        -3-
J. S36042/17


      The record further reflects that the trial court filed an opinion on

June 30, 2016, wherein it concluded that appellant waived all issues on

appeal for failure to comply with Pa.R.A.P. 1925(b).        (Id. at 2.)   On

December 14, 2016, Attorney Page filed in this court an Anders brief,

without an accompanying petition, wherein counsel states that, after a

conscientious review of the record, he determined that an appeal is wholly

frivolous.   Counsel then raises the following issue for our review:    “Were

there any non-frivolous issues preserved for appeal?”     (Anders brief at 2

(capitalization omitted).)

      Preliminarily, we note that Pa.R.A.P. 1925(c)(4) provides that:

             In a criminal case, counsel may file of record and
             serve on the judge a statement of intent to file an
             Anders/McClendon brief in lieu of filing a
             Statement.         If,   upon     review    of    the
             Anders/McClendon brief, the appellate court
             believes that there are arguably meritorious issues
             for review, those issues will not be waived; instead,
             the appellate court may remand for the filing of a
             Statement, a supplemental opinion pursuant to
             Rule 1925(a), or both. Upon remand, the trial court
             may, but is not required to, replace appellant’s
             counsel.

Pa.R.A.P. 1925(c)(4). Here, after defense counsel filed a notice of appeal to

this court and was then ordered by the trial court to file a Rule 1925(a)

statement, defense counsel neither filed a Rule 1925(a) statement nor a

notice of intent to file an Anders/McClendon brief.          Rather, defense

counsel filed a motion to withdraw as counsel which made no reference to

Anders. In fact, the motion failed to provide a reason as to why counsel


                                     -4-
J. S36042/17


sought to withdraw. The trial court’s response to that motion was to order

appellant to file the motion with this court. In turn, this court directed the

trial court to decide the motion. The trial court denied the motion. Defense

counsel then filed an Anders brief with this court.            Although defense

counsel’s failure to file a notice of intent to file an Anders brief with the trial

court was a procedural misstep, we will nevertheless review defense

counsel’s request to withdraw.

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.      First, counsel must “petition the court for

leave to withdraw and state that after making a conscientious examination

of   the   record,   he    has   determined   that   the   appeal   is   frivolous.”

Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012),

quoting Santiago, 978 A.2d at 361. Second, counsel must file an Anders

brief, in which counsel:

             (1) provide[s] a summary of the procedural history
             and facts, with citations to the record; (2) refer[s] to
             anything in the record that counsel believes arguably
             supports the appeal; (3) set[s] forth counsel’s
             conclusion that the appeal is frivolous; and
             (4) state[s] 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.         Finally, counsel must furnish a copy of the

Anders brief to his client and “advise[] him of his right to retain new

counsel, proceed pro se or raise any additional points that he deems worthy


                                       -5-
J. S36042/17


of the court’s attention, and attach [] to the Anders petition a copy of the

letter sent to the client.” Commonwealth v. Daniels, 999 A.2d 590, 594

(Pa.Super. 2010) (citation omitted).    “[If] counsel has satisfied the above

requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928

A.2d 287, 291 (Pa.Super. 2007) (en banc) (quotation marks and quotation

omitted).

      Here, we conclude that Attorney Page’s Anders brief fails to comply

with the technical requirements related to withdrawal of his representation.

First, counsel failed to file the requisite petition with his Anders brief

averring that, after a conscientious examination of the record, counsel finds

the appeal to be wholly frivolous. Second, although counsel has provided a

summary of the procedural history and facts of this case, he has failed to

include any citation to the record.      Third, counsel has not referred to

anything in the record that arguably supports the appeal, but merely

explains why he “believes that the [trial court] made an appropriate ruling”

in finding appellant guilty, which was “based on [the trial court’s] credibility

determination.” (Anders brief at 8.) Finally, although counsel furnished a

copy of the brief to appellant and advised appellant of his right to retain new

counsel or proceed pro se, counsel did not advise appellant of his right to




                                     -6-
J. S36042/17


raise any additional issues that appellant deems worthy of this court’s

attention.

      We, therefore, remand this case and direct counsel to file, within

30 days of the date of this memorandum, either an advocate’s brief or a

proper   Anders     brief   and   petition   to   withdraw.   Thereafter,   the

Commonwealth shall have 30 days to respond. If counsel chooses to file a

proper Anders and petition to withdraw, counsel’s letter to appellant shall

provide, among other items, notice of appellant’s immediate right to raise

additional points that appellant deems worthy of this court’s attention.

Appellant shall then have 30 days from receipt of the revised petition and

brief to file a pro se brief or a brief by newly retained private counsel, if he

so chooses. The Commonwealth will then have 30 days to file a responsive

brief. The trial court is also ordered to supplement the certified record with

the January 26, 2016 transcript of appellant’s sentencing within 30 days of

the date of this decision. The prothonotary of this court shall serve a copy of

this memorandum on appellant.

      Request to withdraw denied. Case remanded with instructions. Panel

jurisdiction retained.

Judgment Entered.




Joseph                      D.                    Seletyn,                  Esq.
Prothonotary



                                      -7-
J. S36042/17


Date: 6/14/2017




                  -8-
