J-S67017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

EDDIE JOHNSON

                            Appellant                       No. 553 WDA 2014


             Appeal from the Judgment of Sentence March 26, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002460-2013


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                 FILED DECEMBER 5, 2014

        Appellant, Eddie Johnson, appeals from the March 26, 2014 aggregate

judgment of sentence of 351 to 702 months’ imprisonment after he was

found guilty of one count each of attempted criminal homicide, aggravated

assault, robbery, theft by unlawful taking, receiving stolen property,

recklessly     endangering        another      person    (REAP),   and   burglary.1

Contemporaneously with this appeal, counsel has requested leave to

withdraw in accordance with Anders v. California, 386 U.S. 738 (1967),

and its progeny.         After careful review, we grant counsel’s petition to

withdraw and affirm the judgment of sentence.
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 3701(a)(1)(i), 3921(a), 3925(a),
2705, and 3502(a)(3), respectively.
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       The trial court succinctly summarized the relevant facts of this case as

follows.

                    On May 28, 2013, Appellant entered without
              permission into the medical offices of Dr. Justine
              Schober, M.D., (“Schober”) in the city of Erie. Upon
              encountering Dr. Schober, whose back was turned,
              Appellant repeatedly bludgeoned her about the head
              from behind with a heavy, metal, three-hole paper
              punch, inflicting near-fatal injuries, almost severing
              an ear and impairing her vision, hearing and
              balance.     Appellant then went into Schober’s
              backpack and stole a Kindle Fire tablet, a leather
              case and a silver cell phone charger.

Trial Court Opinion, 6/3/14, at 1.

       On September 18, 2013, the Commonwealth filed an information

charging Appellant with the above-mentioned offenses.          On January 17,

2014, Appellant proceeded to a three-day jury trial, at the conclusion of

which, the jury found him guilty of all charges. On March 26, 2014, the trial

court imposed an aggregate sentence of 351 to 702 months’ imprisonment.2

Appellant did not file a post-sentence motion. On April 4, 2014, Appellant

filed a timely notice of appeal.3


____________________________________________
2
  Specifically, the trial court sentence Appellant to 240 to 480 months’
imprisonment for attempted criminal homicide, 102 to 204 months’
imprisonment for robbery, nine to 18 months’ imprisonment for burglary,
and no further penalty on the remaining four charges. All three sentences
were to run consecutively to each other.
3
  Appellant and the trial court have complied with Pa.R.A.P. 1925. We note
that counsel who has filed the Anders brief with this Court is not the same
counsel who filed the Rule 1925(b) statement on Appellant’s behalf. In
(Footnote Continued Next Page)


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      In her Anders brief, counsel raises the following issue on Appellant’s

behalf.

             Did the trial court err in abusing its discretion when
             it failed to give a sufficient precautionary instruction
             to jurors that they must not read articles, watch
             television, or listen to radio broadcasts about his
             case, failed to instruct the jurors to inform the court
             as soon as possible should they read or hear any
             news accounts about the case and failed to take
             necessary precautions to conduct careful inquiry of
             jurors during the trial to determine if they had
             received any information from the prejudicial news
             stiroes [sic] about Appellant, the allegations at issue
             in the case or about three unrelated burglaries for
             which Appellant had already entered guilty pleas[?]

Anders Brief at 2.

      When an Anders brief is filed, “[t]his Court must first pass upon

counsel’s petition to withdraw before reviewing the merits of the underlying

issues presented by [the appellant].”             Commonwealth v. Orellana, 86

A.3d 877, 879 (Pa. Super. 2014) (citation omitted).          For cases where the

briefing schedule was issued after August 25, 2009, as is the case here, an

Anders brief shall comply with the requirements set forth by our Supreme

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

                   [W]e hold that in the Anders brief that
             accompanies court-appointed counsel’s petition to
             withdraw, counsel must: (1) provide a summary of
                       _______________________
(Footnote Continued)

addition, attached to the Rule 1925(b) statement is a hand-written note
from Appellant stating that the issue raised in counsel’s Anders brief is the
only issue he wished to raise on appeal.          Appellant’s Rule 1925(b)
Statement, 4/4/14, at 2 n.1, Exhibit A, at 1.



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           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. Additionally, counsel must furnish the appellant with a copy of

the brief, advise him in writing of his right to retain new counsel or proceed

pro se, and attach to the Anders petition a copy of the letter sent to

appellant as required under Commonwealth v. Millisock, 873 A.2d 748,

751 (Pa. Super. 2005).    See Commonwealth v. Daniels, 999 A.2d 590,

594 (Pa. Super. 2010) (holding that, “[w]hile the Supreme Court in

Santiago set forth the new requirements for an Anders brief, … the holding

did not abrogate the notice requirements set forth in Millisock that remain

binding legal precedent”) (footnote omitted).    After counsel has satisfied

these requirements, “[w]e will … conduct our [own] independent review of

the issues raised by counsel and determine, using our own judgment,

whether the appeal is wholly frivolous.” Commonwealth v. Washington,

63 A.3d 797, 800 (Pa. Super. 2013) (citation omitted).

     In the instant matter, we conclude that counsel’s Anders brief

complies with the requirements of Santiago. First, counsel has provided a

procedural and factual summary of the case with references to the record.

Second, counsel advances the sole issue Appellant expressly wished to raise

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on appeal. In addition, counsel has stated, upon review of the record, that

she discerned no non-frivolous issues that would arguably support an

appeal. Third, counsel concluded Appellant’s appeal is frivolous as “the jury

was instructed to avoid all media coverage of the trial on the first day of trial

and on the second day of trial.”     Anders Brief at 5.     Lastly, counsel has

complied with the requirements set forth in Millisock.         As a result, we

proceed to conduct an independent review to ascertain if the appeal is

indeed wholly frivolous.

      Instantly, Appellant argues the trial court abused its discretion in

failing to give sufficient cautionary instructions to the jury that it should

avoid any and all media coverage about this case as well as three other

burglaries to which he pled guilty. Anders Brief at 4. However, before we

may review this issue, we must determine whether it has been properly

preserved for our review.

      It is axiomatic that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our

Supreme Court has repeatedly emphasized the importance of issue

preservation.

                    Issue preservation is foundational to proper
            appellate review. Our rules of appellate procedure
            mandate that “[i]ssues not raised in the lower court
            are waived and cannot be raised for the first time on
            appeal.” Pa.R.A.P. 302(a). By requiring that an issue
            be considered waived if raised for the first time on
            appeal, our courts ensure that the trial court that
            initially hears a dispute has had an opportunity to

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            consider the issue. This jurisprudential mandate is
            also grounded upon the principle that a trial court,
            like an administrative agency, must be given the
            opportunity to correct its errors as early as possible.
            Related thereto, we have explained in detail the
            importance of this preservation requirement as it
            advances the orderly and efficient use of our judicial
            resources. Finally, concepts of fairness and expense
            to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations

omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.

2013) (citation omitted).

      In the case sub judice, the Commonwealth avers that Appellant’s issue

on appeal is waived as “the trial record, including ample opportunities at

side-bar as well as outside the presence of the jury is devoid of a specific

request from [Appellant] concerning the issue he now presents on appeal.”

Commonwealth’s Brief at 4.       Our review of the transcript reveals that the

trial court did instruct the jury to avoid all media coverage of this case, and

not to perform its own investigation, including searches on the Internet

during its opening instructions.    N.T., 1/17/14, at 10.     In addition, at the

conclusion of the first day of the trial, the trial court again instructed the jury

not to discuss the case within anyone.       Id. at 55.   On the second day of

trial, the trial court again instructed the jury to avoid all media coverage and

not to discuss the case with anyone. N.T., 1/21/14, at 237. In our review

of the transcript, we cannot find a single instance in which Appellant

objected or requested the trial court give an additional or different


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instruction to the jury. As a result, we deem this issue waived for failure to

raise the issue in the trial court. See In re F.C. III, supra; Miller, supra;

Pa.R.A.P. 302(a).

      Based on the foregoing, we conclude the sole issue raised in

Appellant’s Anders brief is waived.    As a result, we agree with counsel’s

assessment that the appeal is wholly frivolous. Accordingly, we affirm the

trial court’s March 26, 2014 judgment of sentence and grant counsel’s

petition to withdraw.

      Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.

      Justice Fitzgerald concurs in the result of the memorandum.

      Judge Donohue files a Concurring Memorandum in which Justice

Fitzgerald joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2014




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