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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    WHITNEY C. WASHINGTON                      :
                                               :
                       Appellant               :   No. 1577 WDA 2018

          Appeal from the Judgment of Sentence Entered July 26, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0002873-2018


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 13, 2019

        Whitney C. Washington appeals, nunc pro tunc, from the judgment of

sentence entered in the Court of Common Pleas of Allegheny County. Counsel

has filed an Anders/McClendon1 brief and a motion to withdraw.            Upon

careful review, we grant counsel’s motion to withdraw and affirm Washington’s

judgment of sentence.

        Washington was convicted, after a stipulated nonjury trial, of one count

of unsworn falsification to authorities.2 The court sentenced him to one year

of probation. Washington filed a counseled post-sentence motion on August

24, 2018, in which he raised sufficiency of the evidence and ineffectiveness of
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).

2   18 Pa.C.S.A. § 4904(b).
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counsel claims and requested leave to file supplemental post-sentence

motions upon receipt of the notes of testimony from his trial. That same day,

counsel filed a motion to withdraw. On August 27, 2018, the court entered

an order granting Washington leave to file supplemental post-sentence

motions, nunc pro tunc. On September 11, 2018, the court granted counsel’s

motion to withdraw and appointed the Office of Conflict Counsel as substitute

counsel.    On October 22, 2018, new counsel filed a motion to reinstate

Washington’s appellate rights, nunc pro tunc, which the court granted on

October 29, 2018. Counsel subsequently filed a timely notice of appeal, nunc

pro tunc, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.

        Before addressing Washington’s appellate claim, we must resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa. Super. 2007) (en banc). An attorney seeking to withdraw on appeal

must comply with certain procedural and briefing requirements.            Counsel

must:

        1) 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; 2) furnish a copy
        of the brief to the [appellant]; and 3) advise the [appellant] that
        he or she has the right to retain private counsel or raise additional
        arguments that the [appellant] deems worthy of the court’s
        attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Commonwealth



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v. Santiago, 978 A.2d 349, 361 (Pa. 2009), stated that an 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 (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.

        Counsel also must provide the appellant with a copy of the Anders brief,

together with a letter that advises the appellant of his or her right 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 [C]ourt’s attention in

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

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation

omitted).     Substantial compliance with these requirements is sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

        Here, counsel has filed a motion to withdraw as counsel and an Anders

brief. In her motion, counsel states that there are no issues of arguable merit

on appeal. Additionally, counsel states that she mailed a copy of the Anders

brief to Washington, and attached to her motion a letter to Washington

advising him of his right to retain new counsel or proceed pro se in his appeal,

or to raise any additional issues he believed the Court should consider. 3
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3   Washington has not filed a response to counsel’s Anders brief.

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Finally, counsel’s brief sets out one issue of arguable merit and, pursuant to

the dictates of Santiago, explains why counsel believes the appeal to be

frivolous.    Accordingly,   counsel   has   substantially   complied   with   the

requirements of Anders and Santiago.         We now turn to our independent

review of the record and the claim raised by Washington.

      Washington asserts that the Commonwealth presented insufficient

evidence to sustain his conviction. He is entitled to no relief.

      A challenge to the sufficiency of the evidence is a question of law,
      subject to plenary review. When reviewing a sufficiency of the
      evidence claim, the appellate court must review all of the evidence
      and all reasonable inferences drawn therefrom in the light most
      favorable to the Commonwealth, as the verdict winner. Evidence
      will be deemed to support the verdict when it establishes each
      element of the crime charged and the commission thereof by the
      accused, beyond a reasonable doubt.

Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013) (citation

omitted).

      Washington was convicted of unsworn falsification to authorities.         A

person commits the offense of unsworn falsification to authorities “if he makes

a written false statement which he does not believe to be true, on or pursuant

to a form bearing notice, authorized by law, to the effect that false statements

made therein are punishable.” 18 Pa.C.S.A. § 4904(b).

      At trial, the parties stipulated to the following facts: On March 4, 2017,

Washington attempted to purchase a Winchester rifle at Shaw Precision Guns

in Bridgeville, Allegheny County.       As a prerequisite to the purchase,

Washington was required to complete an ATF Firearms Transaction Record,

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Form 4473, which contains a notice that false statements made therein were

punishable. In responding to two questions contained in the form, Washington

denied that he had ever been convicted of a felony or committed to a mental

institution.     A subsequent background check revealed both of those

statements to be false.4        Washington presented no evidence that he gave

those false answers by mistake. Cf. Commonwealth v. Kennedy, 789 A.2d

731 (Pa. Super. 2001) (where sole evidence of accused’s state of mind was

testimony that actions were product of confusion, and not knowing intent to

falsify information, evidence of intent to make false statement so weak and

inconclusive that, as matter of law, no probability of fact can be drawn from

combined       circumstances).       This      evidence   was   sufficient   to   support

Washington’s conviction for unsworn falsification to authorities. Accordingly,

Washington is entitled to no relief.

       Judgment of sentence affirmed; motion to withdraw granted.




____________________________________________


4In fact, Washington had been convicted on felony drug charges in New Jersey
on December 10, 1997. Moreover, he was subject to an involuntary mental
health commitment on October 29, 2004, and was adjudicated “severely
mentally disabled and chronically psychotic” on November 22, 2004, and
sentenced to 90 days of mental health treatment. Affidavit of Probable Cause,
2/22/18, at 2.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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