J-S12043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
JUAN PONCE MORALES,                       :
                                          :
                   Appellant              :            No. 1097 MDA 2016

             Appeal from the Judgment of Sentence June 22, 2016
              in the Court of Common Pleas of Lebanon County,
              Criminal Division, No(s): CP-38-CR-0000004-2016

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED APRIL 13, 2017

        Juan Ponce Morales (“Morales”) appeals from the judgment of

sentence entered following his convictions of three counts of simple assault,

two counts of robbery, and one count each of retail theft and criminal

conspiracy.1 The trial court additionally found Morales guilty of the summary

offense of harassment.2 Counsel for Morales has filed a Petition to Withdraw

from representation, and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

We grant counsel’s Petition to Withdraw and affirm Morales’s judgment of




1
    18 Pa.C.S.A. §§ 3929, 3701(a)(1)(iv), 2701, 903.
2
    18 Pa.C.S.A. § 2709.
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sentence.3

      On December 4, 2015, Nate Roman (“Roman”), a loss-prevention

officer for Boscov’s department store in Lebanon County, confronted Morales

and his co-conspirator, Deborah Rodriguez, as they attempted to steal three

Calvin Klein leather jackets, with a combined value of $299.97.         When

confronted, Morales threatened Roman with a knife, and beat Roman.

      On May 5, 2016, following a jury trial, Morales was found guilty of the

above-described offenses.     Following the preparation of a pre-sentence

investigation report, the trial court sentenced Morales to an aggregate prison

term of three to twelve years. Thereafter, Morales filed the instant timely

appeal. The trial court ordered Morales to file a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal. Counsel for Morales instead

filed a Statement of Errors asserting that there are no non-frivolous issues

that could be raised on appeal, and stating his intention to withdraw

pursuant to Anders,.

      Initially, we may not address the merits of issues raised on appeal

without first reviewing the request to withdraw. Commonwealth v. Rojas,

874 A.2d 638, 639 (Pa. Super. 2005).        Therefore, we review counsel’s

Petition at the outset.   Our Supreme Court’s decision in Santiago did not


3
  Morales additionally has filed a Motion for the appointment of substitute
counsel. We deny the Motion. See Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. Ct. 2005) (upon the withdrawal of appointed counsel
pursuant to Anders, an appellant is entitled only to retain new counsel, or
to proceed pro se, should he chose to do so).


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alter the procedural requirements of Anders that counsel must satisfy in

requesting to withdraw from representation. Counsel must (1) petition for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous; (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.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

     Here, counsel’s Petition to Withdraw states that he has reviewed the

record and concluded that the appeal is frivolous.     Additionally, counsel

notified Morales that he was seeking permission to withdraw, furnished

Morales with copies of the Petition to Withdraw and Anders brief, and

advised Morales of his right to retain new counsel or proceed pro se to raise

any points he believes worthy of this Court’s attention. Accordingly, counsel

has satisfied the procedural requirements of Anders.

     In Santiago, our Supreme Court set forth the requirements for

counsel’s brief when petitioning to withdraw. The Anders brief 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




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      (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 have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

      Here, counsel’s brief provides a summary of the history of the case,

with citations to the record.    Counsel does not identify any issues that

counsel believes could arguably support the appeal. Counsel instead points

out testimony that could arguably support Morales’s version of the events.

Anders Brief at 6, 8. Counsel concludes, however, that the jury chose to

believe the version of events proffered by Roman. Id. at 8. Counsel finally

states his conclusion that the appeal is frivolous, and cites to relevant case

law regarding credibility determinations made by the jury. Id. at 8-9. Upon

review, we conclude that counsel has satisfied the minimal requirements of

Anders and Santiago.

      Counsel having satisfied the above requirements, we next conduct our

own review of the proceedings, and “render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”        Commonwealth v.

Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted).             In

doing so, we note that Morales has filed a pro se appellate brief raising the

following claims for review:

      1. A[n] examination of the jury will prove that [Morales’s] right
      to a fair trial [was] violated when [trial counsel] failed to file a
      verbal motion for mistrial, when [Morales] informed [counsel] of
      the jury seeing [Morales] in handcuffs during [a] trial recess.



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      2. [Trial counsel] erred and was ineffective when he never
      challenge[d] the authenticity of the video, which shows
      [Morales] dressed in a gray sweater but upon exiting the store[,]
      was dressed in [a] red shirt.

      3. [Morales’s] due process was violated when [the] District
      Attorney withheld evidence [of a] video until trial[,] or never
      disclose[d] [the] video to [Morales] in [the] discovery packet as
      in Brady v. Maryland[, 373 U.S. 83 (1963)].

      4.   Morales’s due process was violated when[,] with prior
      knowledge of the court of [Morales’s] hearing impediment[,
      Morales] was unable to assist counsel during trial due to the
      court’s failure to provide [Morales] with a translator for the
      hearing [impairment].

      5. During trial[, the] jury came back to ask the judge a question
      [as to] whether the jury can find one of the defendants not
      guilty. At that time[, the trial judge] inform[ed] the jury that if
      they find that there was bodily injury[,] the jury must find both
      defendants guilty. During trial, there was no evidence presented
      to support bodily injury[, such] as medical records, [photos] of
      injury or physical evidence to support a bodily injury claim. [The
      trial judge] erred in instructing the jury to find both defendants
      guilty.

Pro Se Brief for Appellant at 4-5 (issues renumbered for ease of disposition,

emphasis omitted).

      Morales’s first two claims assert ineffective assistance of counsel. Id.

at 4-6. However, “as a general rule, a petitioner should wait to raise claims

of   ineffective   assistance   of   trial   counsel   until   collateral   review.”

Commonwealth v. Harris, 114 A.3d 1, 5 (Pa. Super. 2015) (quoting

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013)). Consequently,

we deny Morales relief on these claims, without prejudice for Morales to




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assert his ineffectiveness claims in a timely petition for relief filed pursuant

to the Post Conviction Relief Act (“PCRA”).4

      In his remaining claims, Morales asserts that the Commonwealth

withheld a video in violation of Brady; the trial court improperly failed to

offer Morales a translator, as he is hearing impaired; and the trial court

improperly instructed the jury to find Morales and his co-defendant guilty.

Pro Se Brief for Appellant at 4-5.           In the Argument section of his brief,

Morales   argues   only   that   his    appellate   counsel   rendered   ineffective

assistance by not raising these claims. Id. at 6-7.

      Our review discloses that Morales’s remaining claims were not

identified in his Pa.R.A.P. 1925(b) Concise Statement or his Amended

Concise Statement.5 Ordinarily, whenever the trial court orders an appellant

to file a concise statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b), the appellant must comply in order to preserve his claims

for appellate review.     Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998).    In Commonwealth v. Hernandez, 783 A.2d 784 (Pa. Super.

4
  See 42 Pa.C.S.A. §§ 9541-9546.
5
  On June 28, 2016, the trial court ordered Morales to file a Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. On that
same date, Morales’s trial counsel filed a Statement of Errors, stating that
counsel considered the appeal frivolous, and indicating that counsel intended
to file an Anders brief. Statement of Errors, 6/38/16. On August 6, 2016,
the trial court entered a second Order, requiring counsel to refile a
statement of errors within 10 days. Counsel complied with the trial court’s
Order, filing an Amended Statement of Errors. In the Amended Statement
of Errors, counsel again opined that the appeal is frivolous. Amended
Statement of Errors, 8/10/16, at 1. Counsel also represented that “[t]here
are no issues which have been proffered by [Morales].” Id. at 2.


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2001), however, this Court concluded that Anders requires review of issues

otherwise waived on appeal. Id. at 787.

      Upon review, we are unable to grant Morales relief on his claims.

Morales’s pro se brief fails to identify where, in the record, the alleged errors

took place, or whether the matters were brought to the trial court’s

attention. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for

the first time on appeal).      More importantly, Morales’s legal argument

consists solely of an assertion that his appellate counsel rendered ineffective

assistance, an issue that should be raised in a PCRA Petition.      Finally, our

review confirms the conclusion of Morales’s counsel that there are no non-

frivolous issues that can be raised on appeal.         Consequently, we deny

Morales relief on these claims, without prejudice for Morales to assert his

ineffectiveness claims in a timely petition for relief filed pursuant to the

PCRA.

      Petition to Withdraw granted.      Motion to appoint substitute counsel

denied. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




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