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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 JANUARY 31, 2018

        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 with an accompanying petition, alleging that the appeal is frivolous




1   18 Pa.C.S.A. §§ 2702(a)(1) and 2706(a)(1), respectively.

2See 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).
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and including a request to withdraw.          After careful review, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.

     We previously set forth the following:

                  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 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


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          reconsideration of judgment of sentence.           On
          February 9, 2016, the trial court denied the motion.

               The trial court provided           the    following
          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).

                 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


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

Commonwealth v. Beatty, No. 659 EDA 2016, unpublished memorandum

at *2-4 (Pa.Super. filed June 14, 2017) (brackets in original).

        Although Attorney Page never filed a notice of intent to file an Anders

brief with the trial court,3 we excused this procedural misstep and reviewed

his request to withdraw. Our review revealed that Attorney Page’s Anders

brief failed to comply with the technical requirements related to withdrawal

of representation.    As such, we remanded with instructions.     See id.   In

accordance with our remand instructions, on July 14, 2017, Attorney Page

filed an Anders brief, together with a petition to withdraw.          We will,

therefore, review Attorney Page’s July 14, 2017 request to withdraw.

        To withdraw under Anders, court-appointed counsel must satisfy

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


3   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).


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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.         With respect to the briefing requirements,

“[n]either Anders nor McClendon requires that counsel’s brief provide an

argument of any sort, let alone the type of argument that counsel develops

in a merits brief. To repeat, what the brief must provide under Anders are

references to anything in the record that might arguably support the

appeal.” Santiago, 978 A.2d at 359, 360. 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 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


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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, counsel’s Anders brief substantially complies with prevailing

law. Attorney Page has provided a procedural and factual summary of the

case with references to the record. (Anders brief at 3-4.)     Attorney Page

refers to portions of the record that arguably support the appeal.   (Id. at

unnumbered pages 8-9.)       Attorney Page concludes that “after making a

conscientious examination of the record[,] he has determined the appeal

would be wholly frivolous” and includes his reasons for that determination.

(Id.)    Additionally, Attorney Page’s correspondence to appellant provided

appellant with a copy of the Anders brief and advised him of his right to

either retain new counsel or to proceed pro se on appeal to raise any points

he deems worthy of the court’s attention. We note that our June 14, 2017

remand order provided appellant with 30 days to respond to Attorney Page’s

petition to withdraw and Anders brief. Appellant did not file a response.4

As such, Attorney Page has substantially complied with the procedural

requirements of Anders. We, therefore, proceed to conduct an independent

review to ascertain whether the appeal is indeed wholly frivolous.


4 We also note that despite being granted two extensions of time to file its
brief, the Commonwealth failed to file a brief by the second due date, which
was November 27, 2017.


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      Counsel raises the following issue in the Anders brief: “Are there any

non-frivolous issues preserved for appeal?” (Id. at 2.) Counsel then sets

forth conflicting trial testimony elicited from the victim and appellant,

including appellant’s testimony in support of self-defense.              (Id. at

unnumbered pages 4-5, 9.)        Counsel then concludes that the appeal is

frivolous because the trial court, as fact-finder in appellant’s waiver trial, had

the duty to determine the credibility of the testimony and evidence

presented at trial and, as such, resolved the conflicting testimony in the

victim’s favor. See, e.g., Commonwealth v. Talbert, 129 A.3d 536, 544

(Pa.Super. 2013) (reiterating that the fact-finder passes upon the weight

and credibility of witness testimony and is free to believe all, part, or none of

the evidence). Although counsel advances no argument in the Anders brief

with respect to this credibility issue, we reiterate that neither Anders nor

McClendon requires counsel to set forth an argument; rather, Anders

requires counsel to provide references to anything in the record that might

arguably support the appeal.      Santiago, 978 A.2d at 364.        Counsel has

done so.   After carefully reviewing the trial transcript, we conclude that it

supports counsel’s assessment that because appellant’s convictions resulted

from the fact-finder’s credibility determinations which were resolved against

appellant, this appeal is wholly frivolous.




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     Finally, our independent review of the entire record reveals no

additional non-frivolous claims. Therefore, we grant counsel’s petition to

withdraw and affirm appellant’s January 26, 2016, judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/31/18




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