J-S11023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    JEFFREY POWELL

                             Appellant                 No. 1969 EDA 2017


       Appeal from the Judgment of Sentence imposed January 20, 2017
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0010588-2014


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                               FILED JULY 09, 2018

        Appellant, Jeffrey Powell, appeals from the judgment of sentence

imposed on January 20, 2017 in the Court of Common Pleas of Philadelphia

County following his convictions of unlawful contact with a minor, endangering

the welfare of a child as a course of conduct, corrupting the morals of a minor,

and indecent assault.1        Appellant’s counsel filed a brief citing Anders v.

California, 386 U.S. 738 (1969) and Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981),2 noting that Appellant preserved three issues for

____________________________________________


1 18 Pa.C.S.A. §§ 6318(a)(1), 4304(a)(1), 6301(a)(1)(ii), and 3126(a)(1),
respectively.

2In his brief, counsel endeavors to satisfy the requirements of Anders and
McClendon.       However, our Supreme Court abrogated McClendon in
J-S11023-18


appeal, including weight of the evidence, discretionary aspects of sentence,

and a challenge to jury selection. Counsel concurrently filed a motion for leave

to withdraw. By order entered May 4, 2018, we directed counsel to file an

amended brief complying in all respects with Anders as refined by

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

with the directive and we are now in a position to consider his request to

withdraw and the issues raised on behalf of Appellant.3        For the reasons

explained below, we grant counsel’s petition for leave to withdraw and affirm

Appellant’s judgment of sentence.

        We must address the request to withdraw before reviewing the merits

of Appellant’s issue.      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.

       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;
____________________________________________


Santiago, requiring that counsel state the reasons for concluding the appeal
is frivolous, rather than comply with the standard set forth in McClendon. As
indicated herein, counsel did include in Appellant’s amended brief the reasons
for concluding the appeal is frivolous. Therefore, we shall consider it despite
the erroneous reference to, and seeming reliance on, McClendon.

3 In our Order, we offered the Commonwealth the opportunity to file a
response to Appellant’s amended brief. The Commonwealth did not file a
response.

                                           -2-
J-S11023-18


       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)).

       Counsel’s motion to withdraw did not comply with the second and third

procedural requirements listed above. As a result, this Court issued an order

on December 12, 2017, directing counsel to comply with those requirements,

as outlined in Cartrette. Counsel was also directed to file proof of service of

his Anders brief along with a copy of the trial court’s Rule 1925(a) opinion

and Appellant’s Rule 1925(b) statement of errors complained of on appeal.

Order, 12/11/17, at 1.

       On December 28, 2017, counsel filed a copy of his November 18, 2017

letter to Appellant, indicating his research regarding the issues preserved for

appeal had failed to uncover any grounds for relief, and reflecting that a copy

of Appellant’s brief and counsel’s motion to withdraw were provided to

Appellant. Counsel also advised Appellant of his right to represent himself or

retain other counsel.

       While counsel’s letter did not mention either the trial court’s Rule

1925(a) opinion or Appellant’s Rule 1925(b) statement, the record does reflect

that   Appellant’s   counsel   filed   a   statement   of   intent   to   file   “an

Anders/McClendon brief” on July 20, 2017 and the trial court responded by

entering an order to transmit the record, citing Commonwealth v. McBride,

                                       -3-
J-S11023-18


957 A.2d 752, 758 (Pa. Super. 2008) (“If counsel files a statement of intent

to file an Anders/McClendon brief pursuant to Rule 1925(c)(4), a trial court

opinion is not necessary and the trial court record shall be certified . . . to this

Court.”). Trial Court Order to Transmit Record, 7/29/17, at 1.4

       On January 12, 2018, this Court issued a second order, this time

directing counsel to advise Appellant, within 14 days of the order, of “his

immediate right to retain new counsel, proceed pro se or raise any additional

points that he deems worthy of this Court’s attention.” Order, 1/12, 18, at 1

(citing Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa. Super.

2005) (emphasis in original)). By letter filed with this Court on January 29,

2018, counsel complied with the directive.

       Although counsel’s initial failures to satisfy the procedural requirements

necessitated the issuance of two orders from this Court, counsel ultimately

satisfied the procedural requirements set forth in Anders, as refined by

Santiago. The record now includes counsel’s conclusion, based on a review

of the case, that there are no meritorious issues to be raised on Appellant’s

behalf and that proceeding with the case would be frivolous. In addition, the

record now reflects that counsel furnished a copy of the appellate brief to


____________________________________________


4  Pa.R.A.P. 1925(c)(4) provides that, “[i]f 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.”


                                           -4-
J-S11023-18


Appellant and properly advised Appellant of his right to retain new counsel or

act on his own behalf to raise additional arguments or points for this Court’s

consideration.

      With the procedural requirements of Anders satisfied, this Court must

next ascertain whether the brief satisfies the substantive 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.

      As noted above, by order entered May 4, 2018, we advised counsel that

while he had satisfied the procedural requirements of Anders, his brief did

not comply with the substantive requirements. In response, counsel filed an

amended brief that includes a statement of the case setting forth the

procedural history of the case. Appellant’s Amended Brief at 4-7. Counsel

has satisfied the first requirement.

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

in the record that counsel believes arguably supports the appeal.             Here,

counsel refers to testimony that arguably supports the appeal, including

testimony of the complainant, her adult sister, and her mother, noting that


                                       -5-
J-S11023-18


the testimony of all three individuals was challenged on cross-examination.

In addition, counsel refers to Appellant’s own testimony and that of two of his

children as well as stipulated testimony concerning Appellant’s good character.

Appellant’s Amended Brief at 4-14. We find counsel has complied with the

second requirement.

      Counsel has satisfied the third element of Anders, stating his conclusion

that the appeal is frivolous. Id. at 7, 14. Finally, counsel provided his reasons

for concluding the appeal is frivolous. Id. at 8-14. Thus, counsel has satisfied

the fourth and final element of the Anders test.

      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, wholly 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.”).

      In his first issue, Appellant contends the verdict is against the weight of

the evidence. Our Supreme Court has explained:

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. Commonwealth v. Widmer, 744 A.2d 745, 751–52
      (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189
      (Pa. 1994). A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts

                                      -6-
J-S11023-18


      would have arrived at a different conclusion. Widmer, 744 A.2d
      at 752. Rather, “the role of the trial judge is to determine that
      ‘notwithstanding all the facts, certain facts are so clearly of greater
      weight that to ignore them or to give them equal weight with all
      the facts is to deny justice.’” Id. at 752 (citation omitted). It has
      often been stated that “a new trial should be awarded when the
      jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.” Brown, 648
      A.2d at 1189.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

         Appellate review of a weight claim is a review of the exercise
         of discretion, not of the underlying question of whether the
         verdict is against the weight of the evidence. Brown, 648
         A.2d at 1189.       Because the trial judge has had the
         opportunity to hear and see the evidence presented, an
         appellate court will give the gravest consideration to the
         findings and reasons advanced by the trial judge when
         reviewing a trial court’s determination that the verdict is
         against the weight of the evidence. Commonwealth v.
         Farquharson, 354 A.2d 545 (Pa. 1976). One of the least
         assailable reasons for granting or denying a new trial is the
         lower court’s conviction that the verdict was or was not
         against the weight of the evidence and that a new trial
         should be granted in the interest of justice.

      Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

modified).

      Here, the trial court denied Appellant’s post-sentence motion by order

entered May 16, 2017. The trial court did not provide any findings or offer

any reasons for its conclusions in that order and, as noted above, did not file

a Rule 1925(a) opinion in light of counsel’s indication he would be filing an

Anders brief. However, the trial court did make a statement at the time of


                                       -7-
J-S11023-18



the sentencing that provides insight into the denial of Appellant’s motion. The

trial court explained to Appellant:

      [Trial counsel] is going to file a post-sentence motion for you. He’s
      going to raise two issues that he’s required to raise or they’d be
      waived. He just has to put a sentence down, because he’s not
      going to do the brief. He’ll say that the verdict was against the
      weight of the evidence, and he’ll say that the [j]udge abused his
      discretion at sentencing. I think those are probably frivolous
      claims, because the jury was absolutely entitled to believe the
      testimony of the complainant, who was credible, and her sister,
      and to disbelieve your testimony, which was not credible, in my
      view. It certainly doesn’t shock my conscience, which is what the
      standard is for weight of the evidence.

Notes of Testimony, Sentencing, 1/20/17 at 34-35. Based on our review of

the record and the trial court’s comments at sentencing, we find no abuse of

discretion on the part of the trial court in rejecting Appellant’s weight of the

evidence claim.

      The second claim preserved for appeal related to discretionary aspects

of sentence. In his post-sentence motion, Appellant asserted simply that his

sentence was excessive. Appellant’s Post-Sentence Motion, 1/26/17, at ¶ 3.

Appellant is not entitled to relief.

      “In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court’s decision under an abuse of discretion standard.

Additionally, this Court’s review of the discretionary aspects of a sentence is

confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).”

Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (quotation

marks and citations omitted).

                                       -8-
J-S11023-18


       In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this Court

reiterated:

       Appellant is not entitled as of right to a review of such a challenge.
       Our jurisdiction over a claim regarding the discretionary aspects
       of sentence must be established as follows:

          We conduct a four-part analysis to determine: (1) whether
          appellant has filed a timely notice of appeal, see Pa.R.A.P.
          902 and 903; (2) whether the issue was properly preserved
          at sentencing or in a motion to reconsider and modify
          sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
          brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
          there is a substantial question that the sentence appealed
          from is not appropriate under the Sentencing Code, 42
          Pa.C.S. § 9781(b).

Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010) (internal quotation marks, citations and modifications omitted)).

       A review of the record reveals that Appellant has satisfied the first two

elements of the test.       However, his brief does not include a statement in

accordance with Pa.R.A.P. 2119(f).             Even if it did include a Rule 2119(f)

statement, it is clear Appellant has not raised a substantial question under

42 Pa.C.S.A. § 9781(b) that the sentence appealed from is not appropriate.5

See Commonwealth v. Griffin, 65 A,3d 932, 936-37 (Pa. Super. 2013),



____________________________________________


5 “A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. Super.
2005).


                                           -9-
J-S11023-18


appeal denied, 76 A.3d 538 (Pa. 2013), (citing Commonwealth v. Coss, 695

A.2d 831, 833 (Pa. Super. 1997) (when the sentence imposed falls within the

statutory limits, an appellant’s claim that a sentence is manifestly excessive

fails to raise a substantial question)).

      At sentencing, the trial court addressed the potential discretionary

aspects of sentence claim and explained:

      In terms of a discretionary sentence, I gave you a standard range
      guideline sentence. So unless a Court is going to find that to be
      unreasonable, clearly unreasonable, because it’s within the
      guidelines, you got a break. You got a sentence within the
      guidelines when the Commonwealth asked me to give you four to
      eight years. Okay? And I think some [j]udges would have done
      that.

Notes of Testimony, Sentencing, 1/20/17, at 35. Appellant has failed to raise

a substantial question regarding his sentence and has failed to show that the

sentencing court abused its discretion in fashioning a sentence within the

guidelines. His claim of an excessive sentence is devoid of merit.

      The third issue raised on appeal relates to a juror who failed to disclose

a prior employment relationship with Appellant. As Appellant concedes, it is

the duty of the parties to ascertain, by proper examination at the time the

jury is impaneled, the existence of any reasons for objection to the jurors.

Appellant’s Amended Brief at 13 (citing Commonwealth v. Aljoe, 216 A.2d

50 (Pa. 1966)). As our Supreme Court recognized in Aljoe, a challenge to a

juror “cannot be successfully raised after a jury has been sworn except in




                                      - 10 -
J-S11023-18


those cases where a defendant has been intentionally misled or deceived by

the juror or by the opposite party.” Aljoe, 216 A.2d at 54.

     As acknowledged in Appellant’s brief:

     In this case, Appellant informed the court that he did not recognize
     the juror until he saw the juror in the hallway. Moreover, the juror
     did not indicate a familiarity with Appellant. Together these facts
     arguably could indicate that the panelist intentionally misled the
     court and the defendant during general voir dire as to whether he
     was familiar with Appellant.        However, Appellant voluntarily
     excused himself from individual voir dire. In so doing, Appellant
     deprived himself of the opportunity [to] more closely view
     potential jurors and to hear their answers to [the court’s inquiry]
     into topics such as employment history. By depriving himself of
     this opportunity, Appellant deprived himself [of] an opportunity to
     discover whether the juror was actually the person Appellant
     believed him to be and whether their ostensible relationship would
     be helpful, hurtful, or harmless at trial. An appeal as to the
     selection of the jury under such circumstances would be frivolous.

Appellant’s Amended Brief at 13-14. We agree. Appellant’s third issue lacks

merit.

     In summary, our independent review of the record does not reveal any

non-frivolous arguments available to Appellant. Therefore, we grant counsel’s

motion to withdraw and affirm the judgment of sentence.

     Motion for leave to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/9/18



                                    - 11 -
