J-S68044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
           v.                              :
                                           :
SHANIQUA MELIT WILLIAMS,                   :
                                           :
                   Appellant               :               No. 1146 EDA 2014

     Appeal from the Judgment of Sentence entered on March 7, 2014
            in the Court of Common Pleas of Delaware County,
              Criminal Division, No. CP-23-CR-0003321-2013

BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 26, 2014

     Shaniqua Melit Williams (“Williams”) appeals from the judgment of

sentence   imposed     following   her   conviction   of    aggravated   assault.

Additionally, Williams’s counsel, Steven M. Papi, Esquire (“Attorney Papi”),

has filed an Application to Withdraw Appearance.            We affirm Williams’s

judgment of sentence and grant Attorney Papi’s Application to Withdraw

Appearance.

     On October 2, 2013, Williams went to the emergency room at Crozer-

Chester Medical Center in Upland, Pennsylvania.        After a significant wait,

Williams was told by the triage nurse, Shawna Trapani (“Nurse Trapani”),

that nine people were still in front of her to be treated at the hospital.

Williams became angry and assaulted Nurse Trapani, who suffered scratches

and bruises.    Williams was charged with terroristic threats, simple assault
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and aggravated assault.      On December 11, 2013, a jury found Williams

guilty of aggravated assault,1 but acquitted her of terroristic threats and

simple assault.     On March 7, 2014, Williams was sentenced to four to

twenty-four months in prison, followed by three years of probation. Williams

filed a timely Notice of Appeal.     Attorney Papi has filed an Application to

Withdraw Appearance and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738, 744 (1967) (hereinafter the “Anders Brief”).

        “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. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, he must do the

following:

        (1) petition the court for leave to withdraw stating that after
        making a conscientious examination of the record, counsel has
        determined the appeal would be frivolous; (2) file a brief
        referring to any issues that might arguably support the appeal,
        but which does not resemble a no-merit letter; and (3) furnish a
        copy of the brief to the defendant and advise him of his right to
        retain new counsel, proceed pro se, or raise any additional points
        he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).    In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders,

i.e., the contents of an Anders brief, and required that the brief

1
    18 Pa.C.S.A. § 2702(a)(2).


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      (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.

Santiago, 978 A.2d at 361. “Once counsel has satisfied the [Anders]

requirements, it is then this Court’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 frivolous.”    Edwards, 906 A.2d at 1228

(citation omitted).

      Here, Attorney Papi has complied with each of the requirements of

Anders.     Attorney Papi indicates that he conscientiously examined the

record and determined that an appeal would be frivolous. Further, Attorney

Papi’s Anders Brief comports with the requirements set forth by the

Supreme Court of Pennsylvania in Santiago. Finally, the record contains a

copy of the letter that Attorney Papi sent to Williams, indicating his

determination that the appeal is frivolous, advising of his intention to seek

permission to withdraw, attaching copies of his Anders Brief and Application

to Withdraw Appearance, and advising Williams of her right to proceed pro

se or retain alternate counsel and file additional claims.       Accordingly,



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Attorney      Papi   has   complied    with    the   procedural   requirements    for

withdrawing from representation, and we will review Williams’s appeal.

        In his Anders Brief, Attorney Papi identifies one issue of arguable

merit:     “Whether [Williams’s] conviction for aggravated assault should be

vacated since the guilty verdict for that offense is irreconcilably inconsistent

with acquittal on the lesser-included offense of simple assault?”             Anders

Brief at 3 (some capitalization omitted).

        Williams     argues   that   because   aggravated    assault2   and    simple




2
    The crime of aggravated assaultis defined, in relevant part, as follows:

        (a)    Offense defined. --A person is guilty of aggravated assault
               if he:
                                       ***

               (2)    attempts to cause or intentionally, knowingly or
                      recklessly causes serious bodily injury to any of the
                      officers, agents, employees or other persons
                      enumerated in subsection (c) or to an employee of
                      an agency, company or other entity engaged in
                      public transportation, while in the performance of
                      duty;

                                         ***

        (c)    Officers, employees, etc., enumerated. --The officers,
               agents, employees and other persons referred to in
               subsection (a) shall be as follows:

                                         ***

               (21) Emergency medical services personnel.

18 Pa.C.S.A. § 2072(a)(2), (c)(21).


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assault3 both require that the accused cause or attempt to cause bodily

injury to another person, the offense of simple assault is essentially a

predicate offense to the crime of aggravated assault.         Id. at 9.   Williams

claims that the only difference between the two crimes is that a person is

guilty of aggravated assault if the complainant is an enumerated individual

under 18 Pa.C.S.A. § 2072(c)(21). Anders Brief at 9. Williams asserts that

a person cannot be guilty of aggravated assault unless that person first

commits a simple assault.       Id.    Accordingly, Williams contends that her

conviction   for   aggravated   assault     should   be   vacated   because    it   is

irreconcilably inconsistent with her acquittal of simple assault. Id. at 9-10.

      Williams’s argument is based on the mistaken assumption that the

verdict of not guilty on the simple assault count is to be interpreted as a

finding by the jury that there was, in fact, no simple assault.               As the

3
  The crime of simple assault, of which Williams was acquitted, is defined, in
relevant part, as follows:

      (a)    Offense defined. --Except as provided under section 2702
             (relating to aggravated assault), a person is guilty of
             assault if he:

             (1)   attempts to cause or intentionally, knowingly or
                   recklessly causes bodily injury to another;

                                       ***

             (2)   attempts by physical menace to put another in fear
                   of imminent serious bodily injury[.]

18 Pa.C.S.A. § 2071(1), (2).




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Pennsylvania Supreme Court recently reiterated in Commonwealth v.

Moore, 2014 Pa. LEXIS 2858 (filed October 30, 2014), an acquittal cannot

be interpreted as a specific finding of innocence. See id. at *18. Rather,

“[t]he most that can be said in such cases is that the verdict shows that

either in the acquittal or the conviction the jury did not speak their real

conclusions, but that does not show that they were not convinced of the

defendant’s guilt.”   Id. (citing Commonwealth v. Carter, 282 A.2d 375,

377 (Pa. 1971) (upholding appellant’s aggravated assault and battery

conviction despite the fact that he was acquitted of a separate count of

simple assault and battery)).      When an acquittal on one count in an

indictment is inconsistent with a conviction on a second count, the court

looks upon the acquittal as “no more than the jury’s assumption of a power

which they had no right to exercise, but to which they were disposed

through lenity.” Carter, 282 A.2d at 376 (citation omitted). Thus, although

a defendant’s acquittal may be logically inconsistent with his conviction, an

acquittal on one count is not grounds for reversal of a conviction on another

count.     See Moore, 2014 Pa. LEXIS 2858, *28.        Accordingly, Williams’s

claim is without merit.

      Based on the foregoing, we conclude that Williams’s appeal is

frivolous, and that Attorney Papi is entitled to withdraw as counsel.

      Judgment of sentence affirmed. Application to Withdraw Appearance

granted.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2014




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