J-S56020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMEICE NASH                             :
                                          :
                    Appellant             :   No. 716 EDA 2018

         Appeal from the Judgment of Sentence September 12, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0011415-2013


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 02, 2020

      Appellant, Jameice Nash, appeals from the judgment of sentence

entered on September 12, 2017, as made final by the denial of Appellant’s

post-sentence motion on February 16, 2018.            On appeal, Appellant's

court-appointed counsel filed both a petition to withdraw as counsel and an

accompanying brief pursuant to Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009) and Anders v. California, 386 U.S. 738 (1967).             We deny

counsel’s petition to withdraw and direct that counsel file an advocate’s brief.

      On the morning of June 12, 2013, Appellant slit his seven-year-old

daughter’s throat with a knife.    He was arrested that day and was later

charged with attempted murder, aggravated assault as a felony of the first

degree, and other crimes. Following a number of continuances – all of which

were at Appellant’s request – Appellant proceeded to a bench trial on June 7,

2017. The following evidence was presented during Appellant’s trial.
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      Philadelphia Police Officer Chad Jeter testified that, at 7:36 a.m. on June

12, 2013, he responded to the area of Clivenden and Belfield Streets in

Philadelphia for a report of a person with a weapon. He testified:

        I pulled up and I exited my vehicle when I observed
        [Appellant] holding a little girl with his left hand and a knife
        in his right hand. I then said to him to drop the knife, he
        threw it in the grass, then he let her go.

        So then she ran towards my way and I asked her did he do
        that to you, because I [saw] a large[,] . . . bleeding . . . gash
        on her neck; she said, yes.         That’s when we placed
        [Appellant] into custody.

N.T. Trial, 6/7/17, at 13 and 15.

      Philadelphia Police Officer Allen Carroll testified that he was the second

officer to arrive on scene and he witnessed Appellant restraining the crying

victim, R.G. (hereinafter “the Victim”), with the knife and yelling “this is not

my daughter.” Id. at 63 and 72. The officer described the knife as “a big

kitchen steak knife or like a long knife – like you’ll see in the movies.” Id. at

66.

      Officer Carroll testified that, after Appellant dropped the knife, he saw

that the Victim “had a lot of blood all over her” and, because “she was bleeding

so much,” the officer immediately drove her to the hospital. Id. at 64. As

the officer testified, “[y]ou could actually see [the Victim’s] windpipe” and,

during the drive to the hospital, the Victim was “holding her own neck closed.”

Id. at 65.




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     The Victim was seven years old at the time of the attack and 11 years

old at the time of Appellant’s trial.    Id. at 40.   The Victim testified that

Appellant is her father and, on the morning of attack, she and Appellant left

her grandmother’s house together, so that the Victim could go to school. The

Victim testified that, when she and Appellant were in front of the house,

Appellant “just stood there for a second and he took out the knife” and sliced

her across her neck with the knife. Id. at 55-58. During cross-examination,

the Victim testified that she “think[s] it was an accident” because Appellant

“has always been, like, a loving dad.” Id. at 58.

     Appellant’s mother and the Victim’s grandmother, M.B.H. (hereinafter

“the Grandmother”), testified as to what occurred on the morning of June 12,

2013. She testified:

        On the morning of June 12th . . . [Appellant] came [to my
        house] about, approximately seven in the morning with [the
        Victim]. They were coming around from the other house . .
        . and he came, he got her ready for school. He fixed her
        breakfast and everything. And then he went outside. He left
        to go – to take her to school and I remember – I called the
        cops, because I didn’t like the way he looked.

        He was on prescription drugs and stuff like that. He just
        wasn’t looking right, so I didn’t want him to drive her to
        school, I wanted to drive her myself.

                                        ...

        [Also, when Appellant first came into my house on the
        morning of June 12, 2013,] I saw blood on his shirt and I
        didn’t see [the Victim]. They always come together. I didn’t
        ask any questions, because [Appellant] was mumbling to
        himself and stuff, but the blood on his shirt kind of gave me
        an alarm. So I was, like, where is [the Victim], to myself.

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         So I called the police and then [the Victim] said, grandma,
         mommy hit daddy, but daddy got her back. So that made
         me more alarm[ed]. So that’s when I called the police. I
         went to my room and I called the police.

         So then I came outside. They already left downstairs to go
         to school. They were walking towards the van when the
         police came out the other side.

                                           ...

         The police [were] coming down the street. [Appellant] was
         already almost at the van, but then, when the police lady
         came over to me, I turned to look, because I wanted to show
         them him. But when I looked, I saw [the Victim] standing by
         herself and then I saw the blood on her shirt.

                                           ...

         [The Victim] didn’t scream. She didn’t say nothing. I just
         saw her standing. What alarmed me was the blood on her
         shirt.

         So I screamed out to her and [told] her to run to grandma,
         she did.     Then when I realized she got the cut here
         (indicating). I started screaming and then everything just
         went from there.

N.T. Trial, 6/8/17, at 10-13.

       During the Grandmother’s testimony, the Commonwealth played a

recording of the 911 call she made to the police.         After listening to the

recording, the Grandmother acknowledged that she told the 911 operator:

“my son, I think he’s high on wet.[1] He has the baby with him. He’s about
____________________________________________


1 “‘Wet’ . . . can be used to refer both to a marijuana cigarette dipped in liquid
PCP and to the PCP component on its own, which is also used to coat ordinary
cigarettes and other substances.” What is ‘Wet?’ Dangerous Drug Cocktail,
available at https://www.livescience.com/22917-wet-pcp-marijuana.html
(last visited February 11, 2020).

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to take her to school, but he has a knife.”         See id. at 17-20 (some

capitalization omitted).

      Philadelphia Police Detective Justin Montgomery testified and read from

a statement that the Grandmother gave to him on June 12, 2013. Detective

Montgomery testified that he asked the Grandmother the questions and the

Grandmother responded by providing him with the answers:

        [Question]: Can you tell me what took place this morning?

        [Answer]: My son came home to my house with the baby.
        When he came in, he was fussing and he was mad. He said
        that she, [the Victim’s] mother, busted him in the mouth.
        And he was going to go find her and kill her. . . .

        [Question]: Was [the Victim] with [Appellant] when this was
        taking place?

        [Answer]: Yes.

        [Question]: Can you tell me what happened after he was
        making these statements?

        [Answer]: When this happened, [Appellant] was changing the
        baby’s clothes. He said that he was going to take her to
        school. He poured her some cereal and he was telling her to
        eat, because he was going to be late for work.

        I saw a knife on the table when he was saying these things.
        Like he was going to kill the mother. I called the cops,
        because I was scared.

        [Question]: Can you tell me what kind of knife was on the
        table?

        [Answer]: First, I saw, like a kitchen steak knife. I took that
        away and I was hiding the knives. And then I saw a knife on
        the table that would have been the one in a set of knives,
        like, the one that you would cut meat with.


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       [Question]: Can you tell me, what was [the Victim] doing
       when this was taking place?

       [Answer]: She was sitting there eating the cereal, and he was
       saying, hurry up, I have to go find your mother.

       [Question]: What did you do after you gathered up the
       knives?

       [Answer]: After gathering up the knives, I locked myself in
       my bedroom with my grandson and I called the police.

       [Question]: Can you tell me, while in the bedroom, what did
       you hear?

       [Answer]: I was hearing him say he was going to kill the
       mother.

       [Question]: What was your son’s appearance, when he
       arrived at your home?

       [Answer]: He had blood on his shirt and he said that the
       mother had busted his lip.

       [Question]: Can you tell me what caused you to come out of
       your bedroom?

       [Answer]: The baby was eating the cereal, and he was telling
       her to hurry up. I heard him start yelling at the baby. You’re
       just like your mother.

       I came outside my room to talk to him. I walked down the
       stairs to the street to look for the cops.

       The baby and my son were behind me, following me down
       the stairs to go outside.

       [Question]: What took place, after you got outside?

       [Answer]: When we got outside and walked to the left on the
       sidewalk to look for the cops, my son and the baby walked to
       the right. And when my son and the baby got under the tree,
       I saw them stop walking.

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        I saw the first cop car and I yelled at the cops for them to
        come faster. I saw blood on the baby’s shirt. And the cops
        went over to him.

        They pulled their guns out and he threw the knife in the grass.

                                      ...

        [Question]: Can you tell me, to your knowledge, does your
        son use any narcotics?

        [Answer]: He uses drugs, but I don’t know what it is, but I
        heard from his brother, it’s called, wet.

N.T. Trial, 6/16/17, at 14-18 (some capitalization omitted).

      Finally, the Commonwealth read the following portions of the Victim’s

medical records into evidence:

        [The Victim] presented with a ten-centimeter laceration to
        her left anterior neck, stretching from the left side of her neck
        to the midline. Cut through the skin and muscle layers, as
        well as fat.

        The bleeding of the wound was controlled at the time of her
        arrival.  Upon arrival, [the Victim] reported to medical
        professional that, quote, her father kicked her mother out of
        the house then threatened to kill her, and put the knife up to
        her neck.

        She later reported that her father cut her accidentally. She
        later reported that her father told her, hurry up, you’ll be late
        for school or I’ll kill you. Went into the kitchen to retrieve a
        knife and cut her neck.

        [The Victim] was in stable condition at [Albert Einstein
        Medical Hospital] and a 4x4 gauze dressing was applied to
        her wound. An x-ray and a CT-scan did not reveal any
        extensive vascular injury.




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J-S56020-19


         Once she was stabilized, she was transported to St.
         Christopher’s Hospital for [C]hildren by ambulance for further
         treatment.

                                           ...

         [There, s]he presented with what medical professionals
         described as an acute injury, again, described as a
         ten-centimeter laceration to her neck. This required a
         surgical repair to close the sternal clinoid mastoid muscle, the
         subcutaneous fat skin.

         [The Victim] tolerated the procedure well and the wound was
         dressed.

N.T. Trial, 6/16/17, at 53-55.

       After the Commonwealth rested, Appellant testified in his own defense.

Appellant testified that he accidentally cut his daughter when, while holding a

knife, he tried to fix the Victim’s uniform collar and the Victim suddenly moved.

N.T. Trial, 7/6/17, at 30-31.

       The trial court found Appellant guilty of attempted murder, aggravated

assault as a felony of the first degree, unlawful restraint, endangering the

welfare of children, and possessing an instrument of crime (“PIC”).2 See id.

at 69. On September 12, 2017, the trial court sentenced Appellant to serve

an aggregate term of ten to 20 years in prison, followed by ten years of

probation, for his convictions. N.T. Sentencing, 9/12/17, at 27-28. The trial

court structured Appellant’s sentence in the following manner: ten to 20 years

in prison for attempted murder; a concurrent term of ten to 20 years in prison

____________________________________________


2 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2902(a)(1), 4304(a)(1), and 907(a),
respectively.


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for aggravated assault as a felony of the first degree; a consecutive term of

ten years of probation for unlawful restraint; and, concurrent terms of five

years of probation for endangering the welfare of children and PIC. Id. at

28-30.

        On February 16, 2018, Appellant’s timely post-sentence motion was

denied by operation of law and Appellant filed a timely notice of appeal. 3,   4


On appeal, Appellant’s court-appointed counsel filed a petition for leave to

withdraw and counsel accompanied this petition with an Anders brief. The

Anders brief raises six issues:5

          [1.] Was the sentence imposed upon [Appellant] by the [trial]
          court illegal and/or unconstitutional?

          [2.] Did the trial court have jurisdiction over [Appellant] and
          the crimes charged?

          [3.] Was the verdict against the weight of the evidence to
          such a degree that it shocks one’s conscience?

          [4.] Is the competent evidence of record legally sufficient to
          support the convictions in this matter?

____________________________________________


3 The trial court did not order Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).

4 The Honorable Carolyn H. Nichols was Appellant’s trial court judge and, in
January 2018, Judge Nichols left the trial court bench to become a jurist on
the Pennsylvania Superior Court. Since Appellant did not file his appeal until
March 6, 2018, Judge Nichols did not file a Pennsylvania Rule of Appellate
Procedure 1925(a) opinion in this case.

5   For ease of discussion, we have renumbered Appellant’s issues on appeal.


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        [5.] Did the trial court err when it permitted [Appellant’s 11-
        year-old] daughter to testify about an incident occurring
        when she was seven years old in which [Appellant] allegedly
        cut her throat?

        [6.] Were [Appellant’s] speedy trial rights violated where the
        trial commenced approximately four years after the date of
        [Appellant’s] arrest?

Anders Brief at 9-11.

     Before reviewing the merits of this appeal, this Court must first

determine   whether     counsel   has   fulfilled   the   necessary   procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

     To withdraw under Anders, counsel must satisfy certain technical

requirements. First, counsel must “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.” Miller, 715 A.2d at 1207.

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.

     Finally, counsel must furnish a copy of the Anders brief to his or her

client and advise the client “of [the client’s] right to retain new counsel,



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proceed pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.”   Santiago, 978 A.2d at 355 n.5; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of [the] issues raised by counsel. . . .

[T]his review does not require this Court to act as counsel or otherwise

advocate on behalf of a party. Rather, it requires us only to conduct a review

of the record to ascertain if[,] on its face, there are non-frivolous issues that

counsel, intentionally or not, missed or misstated. We need not analyze those

issues of arguable merit; just identify them, deny the motion to withdraw, and

order counsel to analyze them”). It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

      In the case at bar, counsel complied with all of the above procedural

obligations. We must, therefore, review the entire record and analyze whether

this appeal is, in fact, wholly frivolous. Our review begins with the claims

counsel identifies in the Anders brief.

      The first claim counsel identifies in the Anders brief is that Appellant’s

sentence is illegal.   Although counsel declares that this claim is frivolous,

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counsel acknowledges that the trial court illegally sentenced Appellant for his

aggravated assault conviction.    See Anders Brief at 30 and 36 (counsel

declares that the illegal sentencing claim is frivolous and, at the same time,

declares that the aggravated assault conviction merged with the attempted

murder conviction for purposes of sentencing). Further, the Commonwealth

concedes that the trial court erred in sentencing Appellant for aggravated

assault and that it “does not oppose vacating [Appellant’s] sentence” for that

conviction. Commonwealth’s Brief at 10.

      In this case, the Commonwealth charged Appellant with attempted

murder and aggravated assault. As to the aggravated assault charge, the

information declares:

        COUNT 2:                    Aggravated Assault – (F1)

        Offense Date: 6/12/13       18 § 2702 §§ A

        (1) Attempted to cause serious bodily injury to another, or
        caused such injury, intentionally, knowingly, or recklessly
        under circumstances manifesting extreme indifference to the
        value of human life; or

        (4) Attempted to cause, or intentionally or knowingly caused
        bodily injury to another with a deadly weapon.

        Complainant: [the Victim]

Commonwealth’s Information, 9/17/13, at 1.

      At first blush, under this count, the Commonwealth purportedly charged

Appellant with aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) and

(a)(4). However, the heading of the count identifies the aggravated assault



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charge as a felony of the first degree – and only aggravated assault under

section 2702(a)(1) is a felony of the first degree. See 18 Pa.C.S.A. § 2702(b)

(effective 12/24/12 to 12/31/13) (“Aggravated assault under subsection

(a)(1) and (2) is a felony of the first degree. Aggravated assault under

subsection (a)(3), (4), (5), (6) and (7) is a felony of the second degree”).

Therefore, the Commonwealth only charged Appellant with aggravated assault

under section 2702(a)(1). Moreover, the trial court found Appellant guilty of

aggravated assault “as charged” and then specifically declared that it was

sentencing Appellant for “aggravated assault, which is an F1.”         N.T. Trial,

7/6/17, at 69; N.T. Sentencing, 9/12/17, at 28-30.         Thus, the trial court

convicted and sentenced Appellant for aggravated assault under 18 Pa.C.S.A.

§ 2702(a)(1).

      Our Supreme Court has held that the offense of aggravated assault

under 18 Pa.C.S.A. § 2702(a)(1) merges with the offense of attempted

murder.    Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994).

Further, since Appellant’s convictions for attempted murder and aggravated

assault arose out of the same criminal activity, there exists apparent trial court

error in sentencing Appellant for both crimes. See 42 Pa.C.S.A. § 9765.

      We thus conclude that the issue of whether Appellant’s sentence is

illegal is non-frivolous.   Therefore, we must deny counsel’s request to




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withdraw and direct that counsel file an advocate’s brief.6 See, e.g., Anders,

386 U.S. at 744 (holding that, “if [the court] finds any of the legal points

arguable on their merits (and therefore not frivolous) it must, prior to decision,

afford the indigent the assistance of counsel to argue the appeal”). Appellant’s

counsel shall have 30 days from the date this memorandum is filed to serve

and file an advocate’s brief.7 The Commonwealth shall serve and file its brief

within 30 days after service of Appellant’s brief.

       Petition to withdraw as counsel denied. Panel jurisdiction retained.

       Judge Nichols did not participate in the consideration or decision of this

case.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/20



____________________________________________


6Since the trial court did not order Appellant to file a Rule 1925(b) statement
and, since Appellant’s non-frivolous issue concerns the legality of his sentence,
our order to file an advocate’s brief does not implicate Pennsylvania Rule of
Appellate Procedure 1925(c)(4).

7 We note that an advocate’s brief may not include frivolous issues. See
Pa.R.P.C. 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing
so that is not frivolous”).


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