J-S29040-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.L.D., A MINOR,      :  IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
APPEAL OF: S.L.D., A MINOR                : No. 1939 WDA 2014



       Appeal from the Dispositional Order Entered October 30, 2014,
                in the Court of Common Pleas of Erie County,
           Juvenile Division, at No(s): CP-25-JV-0000083-2014

BEFORE:     PANELLA, MUNDY, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JULY 29, 2015

      S.L.D. (Appellant) appeals from the dispositional order entered after

she was adjudicated delinquent for the crimes of simple assault and

disorderly conduct. In addition, Appellant’s counsel seeks to withdraw from

representation pursuant to Anders v. California, 386 U.S. 738 (1967), and

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

affirm the dispositional order and grant counsel’s application to withdraw.

      The fight between Appellant, who was 14-years-old, and the Victim,

which gave rise to these charges, occurred shortly after school let out on

January 16, 2014. The Victim testified that she was walking out of school

when someone came from behind and hit her in the back of the head. N.T.,

7/28/2014, at 14-15. The Victim turned around, saw it was Appellant who

had hit her, and then fell. Appellant then continued hitting the Victim while

she was still on the ground. Id. at 15-16. Officer Frank Bugaj, the school

police officer who responded to the fight, testified that when he spoke to the


*Retired Senior Judge assigned to the Superior Court.
J-S29040-15


Victim after the incident she had “a contusion on the left side of her

forehead and a small laceration on the right ear.” Id. at 27.      Conversely,

Appellant testified that when she was walking out of school that day, the

Victim hit her, which is what started the fight. Id. at 39.

      On March 6, 2014, the Commonwealth filed a petition for delinquency

for Appellant as a result of the aforementioned fight. The allegations of

delinquency included both simple assault and disorderly conduct.        On July

28, 2014, an adjudication hearing was held before a juvenile court master.

The master found the testimony of the Victim to be “more credible.” Findings

of   Fact,   9/16/2014.     Specifically,   the   master   concluded   that   the

“Commonwealth has proved beyond a reasonable doubt that [the Victim]

suffered bodily injury and that the injury was intentional and caused by the

juvenile, [Appellant]. Furthermore, the fight occurred in a public location …

and caused a public disturbance.” Id. Thus, the master recommended that

Appellant be adjudicated delinquent for simple assault and disorderly

conduct.

      On September 15, 2014, the juvenile court confirmed the master’s

recommendation, and a dispositional hearing was held on October 30, 2014.

The juvenile court placed Appellant on formal probation.         Appellant was

further ordered to complete 50 hours of community service, write a letter of

apology, and pay court fees.




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      Appellant timely filed a notice of appeal. In response to the juvenile

court’s order to file a concise statement of errors complained of on appeal,

counsel filed a statement, pursuant to Pa.R.A.P. 1925(c)(4), of her intent to

withdraw her representation of Appellant.

      As a preliminary matter, we address counsel’s application to withdraw

before reaching the merits of the issues raised in the brief. Commonwealth

v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth

v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a

purported Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”).

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof. …

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.


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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).1 Our Supreme Court has expounded further upon the

requirements of Anders:

        in 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.

        Based upon our examination of counsel’s application to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

above requirements.2 Once “counsel has met these 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.’” Commonwealth v. Flowers, 2015



1
  In addition, because this is a juvenile case, counsel must also notify
Appellant’s parents of the intent to withdraw. Commonwealth v. Heron,
674 A.2d 1138, 1140 (Pa. Super. 1996) (“We find the requirement of the
Juvenile Act that notice be given to a juvenile and his/her parents applicable
to Anders cases involving juveniles.”). Instantly, counsel has satisfied that
requirement because her letter is addressed to Appellant in care of her
parents. Petition to Withdraw as Counsel, 2/23/2015, at Exhibit A.
2
    Appellant has not responded to counsel’s application to withdraw.



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PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015),

quoting, Santiago, 978 A.2d at 354 n. 5.3




3
   Speaking for myself only and not as the conduit of this Court’s decision,
see Commonwealth v. King, 57 A.3d 607, 633 n. 1 (Pa. 2012) (Saylor, J.,
concurring) (discussing the precedent for a special concurrence by the
author of the majority opinion), I acknowledge that the law of this
Commonwealth now provides that this Court, when confronted with an
Anders brief, must comb the record in search of issues of arguable merit
that were not raised by counsel. See Commonwealth v. Flowers, 2015
PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015)
(“[T]he reviewing court must make certain that appointed counsel has not
overlooked the existence of potentially non-frivolous issues.”). I write
separately to reiterate my disagreement with that opinion’s holding as to
this Court’s duty.

      We accept in all other criminal cases that counsel has put forth the
appropriate issues and arguments and, if not, that the PCRA is available to
the defendant for obtaining relief. See, e.g., Commonwealth v. Koehler,
914 A.2d 427, 438 (Pa. Super. 2006) (“[I]t is not this Court’s duty to
become an advocate for an appellant and comb through the record to assure
the absence of trial court error.”). In an Anders case, to “vindicate[] the
right to counsel” by “safeguard[ing] against a hastily-drawn or mistaken
conclusion of frivolity[,]” Santiago, 978 A.2d at 361, our Supreme Court
has added the additional protection of requiring the attorney to certify and
demonstrate his or her thorough review of the record and applicable law
before we will allow counsel to withdraw.

       Now, under Flowers, this Court not only can, but must, effectively act
as an advocate for a criminal defendant whose counsel seeks to withdraw.
Not only does this render meaningless counsel’s efforts under Santiago, but
it results in the unnecessary, unwarranted, and patently unfair disparate
treatment of criminal defendants by this Court. See id. at *5 (Strassburger,
J., dissenting) (quoting Commonwealth v. Washington, 29 A.3d 846 (Pa.
Super. 2011) (Colville, J., concurring, unpublished memorandum at 6)
(“[T]he purpose of Anders is to provide equal, not extra, representation to
indigent defendants, regardless of their counsel’s assessment of the merits
of their appeals.”).



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      In her brief, Appellant’s counsel states one issue that might arguably

support an appeal: “Whether the [juvenile] court abused its discretion in

finding the Commonwealth’s witness credible and sustaining the allegations

of delinquency against the weight of the evidence?” Anders Brief at 3.

      “The Juvenile Rules of Court Procedure do not, at present, specify how

a juvenile who has been adjudicated delinquent must present a weight of the

evidence claim to the juvenile court so that the claim is preserved for

appellate review.” In re J.B., 106 A.3d 76, 96 (Pa. 2014).4 However, our

Supreme Court has held that in order for a “weight of the evidence claim to

have been preserved for appellate review, [an appellant needs] to present

the claim in some manner to the juvenile court so that it could adjudicate it

in the first instance.” Id. at 95.

      Instantly, Appellant did not present a weight-of-the-evidence claim to

the juvenile court.    Therefore, Appellant has waived this issue and it is

frivolous. See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super.

2008) (holding that when an issue has been waived, “pursuing th[e] matter

on direct appeal is frivolous”).     Moreover, we have conducted “a full

examination of the proceedings” and conclude that “the appeal is in fact

wholly frivolous.” Flowers, 2015 PA Super 69, 2015 WL 1612010 at *2.



4
 Compare Pa.R.Crim.P. 607 (providing specifically that in order to preserve
a weight-of-the-evidence claim, a defendant must raise it before sentencing
or in an optional post-sentence motion).


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         Accordingly, we affirm Appellant’s dispositional order and grant

counsel’s application to withdraw.

         Dispositional order affirmed.    Application to withdraw as counsel

granted.

         Judge Panella joins in this memorandum.

         Judge Mundy files a concurring statement in which Judge Strassburger

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/29/2015




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