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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                      :
WILLIAM MATHUES,                      :         No. 3193 EDA 2016
                                      :
                       Appellant      :


       Appeal from the Judgment of Sentence, September 13, 2016,
             in the Court of Common Pleas of Chester County
            Criminal Division at No. CP-15-CR-0003397-2015


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED JUNE 15, 2017

     William Mathues appeals from the September 13, 2016 aggregate

judgment of sentence of 3 to 7 years’ imprisonment imposed after a jury

found him guilty of three counts of aggravated assault, one count of

resisting arrest, and one count of manufacturing a controlled substance.1

Contemporaneously with this appeal, counsel has requested leave to

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

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their

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

affirm the judgment of sentence.




1
  18 Pa.C.S.A. §§ 2702(a)(3), 5104, and 35 P.S. § 780-113(a)(30),
respectively.
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      The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows. On August 17, 2015, three members of

the   West   Chester   Police    Department     --    Corporal   James    Gorman,

Sergeant Jeffrey   Dietz,   and     Patrolman        Dave   Frantz   (collectively,

“the officers”) -- were dispatched to the residence of Kathleen Kozlowsky

after she reported that appellant was outside her residence.             (Notes of

testimony, 5/16/16 at 64-66, 85-86.)        Kozlowsky had a protection from

abuse order against appellant that prohibited him from contacting her. (Id.

at 65, 86.) The officers attempted to take appellant into custody, and an

altercation ensued which ultimately resulted in Corporal Gorman tasing

appellant multiple times.       (Id. at 66-70.)       During the course of this

altercation, appellant kicked Sergeant Dietz in the groin and continued to

kick and spit at the officers while on the ground. (Id. at 66-68, 89-91.)

      Appellant was subsequently arrested and charged with resisting arrest,

manufacturing a controlled substance, false imprisonment, and three counts

of aggravated assault. On May 16, 2016, appellant proceeded to a jury trial

and was found guilty of all the aforementioned offenses except false

imprisonment. As noted, appellant was sentenced on September 13, 2016,

to an aggregate term of 3 to 7 years’ imprisonment. Appellant did not file

any post-sentence motions. On October 11, 2016, appellant filed a timely

notice of appeal. That same day, the trial court directed appellant to file a

concise statement of errors complained of on appeal, in accordance with



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Pa.R.A.P. 1925(b).       In lieu of a Rule 1925(b) statement, counsel 2 filed a

statement    of    her   intention   to   file   an   Anders/McClendon   brief,   in

accordance with Rule 1925(c)(4), on October 31, 2016.            On November 1,

2016, the trial court filed a Rule 1925(a) statement in lieu of an opinion.

Thereafter, on March 10, 2017, appellant’s counsel filed a petition and brief

to withdraw from representation.           Appellant did not respond to counsel’s

petition to withdraw.

      In her Anders brief, counsel raises the following issues on appellant’s

behalf:

             I.     Should the charges have been dismissed with
                    prejudice due to allegations of impersonation
                    of police officers and prosecutorial misconduct?

             II.    Should the charges have been dismissed due
                    to ineffective assistance of counsel?

Anders brief at 2.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.

2010) (citation omitted).        In order to withdraw pursuant to Anders,

“counsel must file a brief that meets the requirements established by our

Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)


2
 At all pertinent times in this case, appellant was represented by Kelly A.
Thompson, Esq.


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(parallel citation omitted). Specifically, counsel’s Anders brief must comply

with the following requisites:

            (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.

Id. (citation omitted).

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.

2005), and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his client.”     Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief

must be accompanied by a letter that advises the client of the option to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court[’]s

attention in addition to the points raised by counsel in the Anders brief.”

Id.   “Once counsel has satisfied the above requirements, it is then this

[c]ourt’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




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frivolous.”   Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.

2007) (en banc) (citation and internal quotation marks omitted).

      Instantly, we conclude that counsel has satisfied the technical

requirements of Anders and Santiago. Counsel has identified the pertinent

factual and procedural history and made citation to the record. Counsel has

also raised two claims that could arguably support an appeal, but ultimately

concludes that the appeal is wholly frivolous. Counsel has also attached to

her petition a letter to appellant, which meets the notice requirements of

Millisock. Accordingly, we proceed to conduct an independent review of the

record to determine whether this appeal is wholly frivolous.

      Appellant first contends that his charges should have been dismissed

because the Commonwealth committed prosecutorial misconduct and the

individuals who testified at trial were impersonating the police officers who

arrested him on the day in question.      (Anders brief at 7-8.)     The record

reflects that appellant failed to raise either of these claims at trial or in a

post-sentence motion. Accordingly, we agree with counsel that these claims

are waived. See Pa.R.A.P. 302(a) (providing that issues not raised in the

lower court are waived and cannot be raised for the first time on appeal).

      Appellant also argues that his counsel rendered ineffective assistance

during the jury trial.    (Anders brief at 8-9.)      “[A]s a general rule, a

petitioner should wait to raise claims of ineffective assistance of trial counsel

until collateral review.” Commonwealth v. Straub, 936 A.2d 1081, 1082



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(Pa.Super. 2007) (citation and internal quotation marks omitted), appeal

denied, 963 A.2d 470 (Pa. 2007). Consequently, we deny appellant’s relief

on this claim, without prejudice for appellant to assert his ineffectiveness

claim in a timely petition for relief filed pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541–9546.

      Based on the foregoing, we agree with counsel’s assessment that this

appeal is wholly frivolous and that appellant is entitled to no relief on his

claims.   After our own independent review of the record, we discern no

additional issues of arguable merit. Accordingly, we grant counsel’s petition

to withdraw and affirm the September 13, 2016 judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2017




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