J-S04037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
ROGER SCHIMP,                             :
                                          :
                 Appellant                :    No. 528 WDA 2015

           Appeal from the Judgment of Sentence March 5, 2015
              in the Court of Common Pleas of McKean County
            Criminal Division at No(s): CP-42-CR-0000044-2014

BEFORE:     BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 29, 2016

      Roger Schimp (Appellant) appeals from his March 5, 2015 judgment of

sentence of an aggregate term of 40 months to ten years of imprisonment

entered following his convictions for various sex offenses. Counsel has filed

a petition to withdraw and a brief pursuant to Anders v. California, 386

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

2009). We deny counsel’s motion to withdraw and remand for counsel to file

an advocate’s brief upon review of the entire record.

      Succinctly, the relevant history of the case is as follows. By criminal

information filed February 4, 2014, Appellant was charged with various

crimes in McKean County between 2010 and 2013, including, inter alia,

attempted rape of a child, indecent assault, simple assault, and corruption of

minors. At trial, over Appellant’s objection, the victim testified extensively


*Retired Senior Judge assigned to the Superior Court.
J-S04037-16


about acts Appellant committed against her in Kentucky before she and

Appellant moved to Bradford in McKean County.           The jury convicted

Appellant of six counts and found him not guilty of 12 others.       After a

hearing, the trial court determined that Appellant is a sexually violent

predator (SVP), and on March 5, 2015, Appellant was sentenced as indicated

above. Appellant timely filed a notice of appeal.

      The trial court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied. Therein, Appellant claimed that the trial court erred in admitting

the evidence of Appellant’s uncharged acts committed in Kentucky because

(1) the Commonwealth failed to give Appellant notice of its intent to do so,

and (2) evidence of Appellant’s wrongs or other acts was inadmissible under

Rule 404(b)(1) of the Pennsylvania Rules of Evidence. In response, the trial

court filed a statement pursuant to Pa.R.A.P. 1925(a) in which it opined: (1)

reference to the Kentucky acts in the affidavit of probable cause provided

Appellant with sufficient notice of the Commonwealth’s intent to introduce

Rule 404 evidence, and (2) the evidence of the prior acts was admissible to

show the sequence of events that formed the history of the case.

      In this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review

of this matter.




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            Direct appeal counsel seeking to withdraw under Anders
     must file a petition averring that, after a conscientious
     examination of the record, counsel finds the appeal to be wholly
     frivolous. Counsel must also file an Anders brief setting forth
     issues that might arguably support the appeal along with any
     other issues necessary for the effective appellate presentation
     thereof….

            Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any
     additional points worthy of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
     requirements of Anders, this Court will deny the petition to
     withdraw and remand the case with appropriate instructions
     (e.g., directing counsel either to comply with Anders or file an
     advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
     petition and brief satisfy Anders, we will then undertake our
     own review of the appeal to determine if it is wholly frivolous. If
     the appeal is frivolous, we will grant the withdrawal petition and
     affirm the judgment of sentence. However, if there are non-
     frivolous issues, we will deny the petition and remand for the
     filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

     [I]n the Anders brief that accompanies court-appointed
     counsel’s petition to withdraw, counsel 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 (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.




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J-S04037-16


Santiago, 978 A.2d at 361.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above in that counsel: filed a motion to

withdraw in which he states his opinion that there are no non-frivolous

issues to be raised on appeal; attached a letter to Appellant advising him of

his right to proceed pro se or with retained counsel;1 and filed a brief that

contains a detailed statement of the case, raises three issues that arguably

support an appeal, and expresses counsel’s conclusion that the appeal would

be frivolous with reasons in support thereof.        Thus, we now have the

responsibility “‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.

2015) (quoting Santiago, 978 A.2d at 354 n. 5).

        In his Anders brief, counsel identifies two issues of arguable merit:

(1) a challenge to the admission of evidence of uncharged contact between

Appellant and the victim in Kentucky, based upon both the adequacy of the

notice of the Commonwealth’s intent to introduce such evidence and its

admissibility under Pa.R.E. 404(b); and (2) a challenge to the sufficiency of

the evidence to sustain the convictions. Anders Brief at 17, 23-24.

1
    Appellant has not responded to counsel’s petition to withdraw.



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      The trial court addressed the arguments concerning the Kentucky

testimony as follows. As to the notice required by Pa.R.E. 404(b)(3),2 the

trial court, relying upon Commonwealth v. Lynch, 57 A.3d 120, 126 (Pa.

Super. 2012), opined that the references to Kentucky in the affidavit of

probable   cause    provided    Appellant   with   sufficient   notice    that   the

Commonwealth intended to offer the testimony that the victim gave as to

Appellant’s sexual and physical abuse of her in Kentucky.                Trial Court

Opinion, 7/1/2015, at 3.       Regarding the admissibility of evidence of the

Kentucky wrongs, the trial court, relying upon Commonwealth v. Walker,

656 A.2d 90, 99 (Pa. 1995), concluded that the evidence was properly

admitted to show the sequence of events that formed the history of the

case. Id. at 1-2.

      In his Anders brief, counsel wholly bases his opinion of the frivolity of

an appeal on this issue upon the trial court’s Rule 1925(a) statement and

the cases cited therein by the trial court. Anders Brief at 25.

      Upon a review of the record, it appears to this Court that the victim’s

testimony about Kentucky events was extensive, perhaps more so than her

testimony about Appellant’s acts in McKean County. See, e.g., N.T. Trial,

6/9/2014, at 29-44. Furthermore, it is not obvious to this Court from the

2
  Subsection (b)(3) provides that the prosecutor is required to “provide
reasonable notice in advance of trial… of the general nature of any” wrongs
or other bad acts that the prosecutor intends to introduce at trial. Pa.R.E.
404(b)(3).


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record that the information Appellant had from the Commonwealth prior to

trial necessarily put him on notice of the testimony the victim offered at trial

about Appellant’s acts in Kentucky.     See, e.g., N.T. Preliminary Hearing,

1/15/2014, at 35 (prosecutor instructing witness to limit testimony to

Bradford incidents).

      Nor is it clear to us that there is no non-frivolous argument to be made

that evidence of Appellant’s conduct in Kentucky was necessary to explain or

complete the Commonwealth’s case against Appellant as to acts committed

in McKean County.      There is case law to suggest that the other wrongs

admitted to complete the story must provide immediate context of related

happenings such that there is an “inextricable relationship” between the

other act and the crime at issue. Commonwealth v. Green, 76 A.3d 575,

585 (Pa. Super. 2013).

      By no means is this Court convinced that Appellant is entitled to relief

on his issues related to the admission of the Kentucky testimony. However,

the claims are not so clearly devoid of merit to warrant classifying this

appeal as frivolous. From our review, it appears that counsel has the factual

and legal bases to put forward a good-faith argument of trial court error.




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      Accordingly, we deny counsel’s motion for leave to withdraw3 and

remand the case for counsel to file an advocate’s brief.

      Motion   for   leave   to   withdraw   denied.   Case   remanded   with

instructions. Panel jurisdiction retained.




3
  We also note an additional basis for denying counsel’s motion: the record
before us does not contain the transcript from Appellant’s sentencing
hearing. “Without these notes of testimony, [c]ounsel could not have
fulfilled his duty to review the record for any non-frivolous issues.”
Flowers, 113 A.3d at 1250. Upon remand, prior to filing his advocate’s
brief, counsel must obtain the missing sentencing transcript and ensure its
inclusion in the certified record. Id. at 1251.


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