J.S45034/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
YUSEPH CROSS,                               :
                                            :
                          Appellant         :     No. 2041 EDA 2013


              Appeal from the Judgment of Sentence June 26, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0008969-2009

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 21, 2014

        Appellant, Yuseph Cross, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

negotiated guilty plea to indecent assault of a complainant less than thirteen

years old and corruption of minors.1 Appellant’s counsel, David W. Barrish,

Esq. (“Counsel”), has filed a brief2 pursuant to Anders v. California, 386



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3126(a)(7), 6301(a)(1).
2
  Previously, the Commonwealth petitioned this panel to strike Appellant’s
brief, because it stated the victim’s full name, and direct him to file a
replacement brief. On July 23, 2014, we entered an order denying the
Commonwealth’s petition but directing our Prothonotary to seal the brief and
certified record. We remind Counsel that “in a prosecution involving a minor
J.S45034/14


U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa.

1981), but no separate petition to withdraw. We remand for Counsel to file

either an advocate’s brief or an amended Anders brief which addresses the

court’s denial of Appellant’s pre-sentence motion to withdraw his guilty plea.

We    also    deny   the   Commonwealth’s   application   for   post-submission

communication.

      On March 22, 2012, Appellant appeared before the trial court to plead

guilty.3     The Commonwealth summarized the underlying facts as follows.

The complainant was Appellant’s cousin and was six or seven years old at

the time of the incidents. On two or three occasions in 2004, Appellant, who

was then twenty or twenty-one years old, exposed his penis to the victim

and had the victim touch his penis with her mouth. N.T. Guilty Plea H’rg,

3/22/12, at 7-8.

      The Commonwealth informed the trial court that the plea was a

negotiated one, and the Commonwealth was “nolle prossing the lead charge

[of] involuntary deviate sexual intercourse[,]” which carried a five-year

mandatory imprisonment sentence.       Id. at 9.    The plea agreement also



victim of sexual or physical abuse, the name of the minor victim shall not be
disclosed by officers or employees of the court to the public[.]” See 42
Pa.C.S. § 5988(a).
3
  At the plea hearing, Appellant was represented by Mark Hinrich, Esq. At
sentencing, he was represented by Raymond Driscoll, Esq; Attorney Driscoll
also filed the pre-sentence motion to withdraw plea, which we discuss infra.
In the instant appeal, Appellant is represented by Attorney Barrish.



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provided that Appellant be supervised by the sex offender unit of the

probation department.4 Id. at 11. The court conducted an oral colloquy and

Appellant pleaded guilty to indecent assault of a complainant less than

thirteen years old and corruption of minors.

         On   May   22,    2013—before    sentencing—the      trial   court   denied

Appellant’s motion to withdraw his guilty plea.5       However, there was no

motion to withdraw the plea, and no notation in the docket that one was

filed.   Upon informal inquiry by this Court, the Commonwealth provided a

copy of the motion, which this Court has made a supplemental record. In

the motion, the sole argument for withdrawing the plea was Appellant’s

assertion of his innocence to the charges.

         On June 26, 2013, the court accepted the parties’ joint sentencing

recommendation and imposed on each count concurrent sentences of five

years’ probation, to be supervised by the Sexual Offender Unit.                  N.T.

Sentencing,     6/26/13,    at   5.   Appellant’s   counsel     stated    that   the

recommended sentence was “a guideline sentence.”               Id.    Furthermore,

Appellant was found not to be a sexually violent predator.

         Appellant did not file a post-sentence motion, but took this timely

4
  The Commonwealth stated at plea hearing, “I believe [Appellant] also has
a detainer for a DUI probation.” N.T. Plea H’rg at 10.
5
  See Criminal Docket, 11/14/13, at 15. There is no traditional order in the
record, but instead there is a copy of the relevant page of the docket with
the trial court’s signature in the space of the docket entry.




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appeal. The trial court directed him to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal.      Counsel sought, and was granted, three

extensions of time. Counsel then filed a Rule 1925 statement which stated

there were no non-frivolous issues preserved for appeal.            See Pa.R.A.P.

1925(c)(4)    (providing   counsel   may    file   statement   of   intent   to   file

Anders/McClendon brief in lieu of 1925(b) statement).

     This Court has stated:

        This Court must first pass upon counsel’s petition to
        withdraw before reviewing the merits of the underlying
        issues presented by [the defendant].

           Prior to withdrawing as counsel on a direct appeal under
        Anders, counsel must file a brief that meets the
        requirements established by our Supreme Court in
        [Commonwealth v. Santiago, 978 A.2d 349 (Pa.
        2009).]. The 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 a
        copy of the Anders brief to his client. Attending the brief
        must be a letter that advises the client of his right to: “(1)
        retain new counsel to pursue the appeal; (2) proceed pro
        se on appeal; or (3) raise any points that the appellant


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         deems worthy of the court[’]s attention in addition to the
         points raised by counsel in the Anders brief.”

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted).     “[A]fter all of the requirements attendant to

counsel's request to withdraw are satisfied[,] we will make a full examination

of the proceedings in the lower court and render an independent judgment

[as to] whether the appeal is in fact ‘frivolous.’”   Id. at 882 n.7 (citation

omitted).   “Part and parcel of Anders is our Court’s duty to review the

record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

      In the instant appeal, Counsel has not filed a petition to withdraw

from representation. However, he has filed a brief, in which he sets forth

relevant authority on the requirements of a guilty plea colloquy, as well as

the statutory maximum sentences for Appellant’s convictions. Counsel

         states that after making a conscientious examination of
         the record he has determined that this appeal would be
         wholly frivolous, that he has notified [A]ppellant of the
         request to withdraw, that he has furnished [A]ppellant with
         a copy of the brief prepared by counsel, and that he has
         advised [A]ppellant of his right to retain new counsel,
         proceed pro se, or raise any additional points that he may
         deem worthy of consideration.

Appellant’s Brief at 10.    Counsel then states, “Having complied with the

requirements of McClendon, [C]ounsel petitions this Honorable Court for

leave to withdraw.” Id.

      Counsel also includes in the brief a copy of a letter he sent to



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Appellant that advises Appellant that after conscientious review of the

record, he has determined there are no non-frivolous issues, states that he

attaches a copy of the Anders brief, and advises Appellant of his right to

retain new counsel or proceed pro se. Finally, Counsel’s brief sets forth the

factual and procedural history of this case, extensively quotes the oral plea

colloquy conducted, cites legal authority for the requirements of a proper

plea colloquy, sets forth the maximum sentences for Appellant’s offenses,

and concludes there are no non-frivolous issues for appeal.

      In light of the foregoing, we hold Counsel has substantially complied

with the Anders requirements, save the filing of a petition to withdraw with

this Court. See Burwell, 42 A.3d at 1083; Orellana, 86 A.3d at 879-80.

“‘Although we believe the more desirable practice would be to submit a

separate withdrawal request to the court, we . . . treat counsel’s [request] in

the brief itself as such a request.’    ‘Consequently, we find that counsel’s

motion is properly before this Court for review . . . .’” See Commonwealth

v. Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995) (citations omitted). We

thus examine the record to render an independent judgment as to whether

the appeal is wholly frivolous. See Orellana, 86 A.3d at 882 n.7; Vilsaint,

893 A.2d at 755.

      As stated above, Appellant filed a pre-sentence motion to withdraw his

guilty plea, averring only a claim of innocence. This Court has stated:

           In [Commonwealth v. Forbes, 299 A.2d 268 (Pa.
         1973)], our Supreme Court provided the framework for


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        evaluating presentencing requests to withdraw guilty
        pleas. There, the Court instructed that, “in determining
        whether to grant a presentence motion for withdrawal of a
        guilty plea, ‘the test to be applied by the trial courts is
        fairness and justice.’” Specifically, Forbes established a
        two-part standard: . . . “If the trial court finds ‘any fair and
        just reason,’ withdrawal of the plea before sentence should
        be freely permitted, unless the prosecution has been
        ‘substantially prejudiced.’” . . .

           . . . “Although it is apparently an extremely unpopular
        rule with prosecutors and trial courts . . . caselaw has
        continuously upheld an assertion of innocence as a fair
        and just reason for seeking the withdrawal of a
        guilty plea.”

           In our appellate capacity, we keep in mind that “[a] trial
        court’s decision regarding whether to permit a guilty plea
        to be withdrawn should not be upset absent an abuse of
        discretion. An abuse of discretion exists when a defendant
        shows any ‘fair and just’ reasons for withdrawing his plea
        absent ‘substantial prejudice’ to the Commonwealth.”
        “[A]n assertion of innocence may constitute a fair
        and just reason for the pre-sentence withdrawal of a
        guilty plea.”

Commonwealth v. Carrasquillo, 78 A.3d 1120, 1125 (Pa. Super. 2013)

(en banc) (emphases added) (citations omitted), appeal granted, 86 A.3d

830 (Pa. 2014).

     Furthermore,

        Pursuant to Pa.R.Crim.P. 591, upon the motion of a
        defendant, a trial court may, in its discretion, permit the
        withdrawal of a guilty plea prior to sentencing.
        Pa.R.Crim.P. 591(A). In such circumstances, the court
        should conduct an on-the-record colloquy to
        determine whether the defendant has a fair and just
        reason to permit withdrawal of the plea. Pa.R.Crim.P. 591,
        Comment.

Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011)


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(emphasis added).

      Finally, we note that on February 19, 2014, our Supreme Court

granted allowance of appeal in Carrasquillo on, inter alia, the question,

“Should the standard for presentence withdrawal of a guilty plea, which has

devolved into an absolute right to withdraw, be clarified to hold that the trial

judge has discretion to determine that an insincere assertion of innocence,

unsupported by any facts or rational theory of defense, is not a ‘fair and just

reason’?” Carrasquillo, 86 A.3d 830.

      Notwithstanding    the     Supreme     Court’s   allowance   of   appeal   in

Carrasquillo, pursuant to current authority, Appellant’s claim of innocence

could have been a meritorious basis for withdrawal. See In re S.T.S., 76

A.3d 24, 44 (Pa. Super. 2013) (“even though petition for allowance of

appeal was pending before the Pennsylvania Supreme Court, decision

remained binding precedent as long as the decision had not been overturned

by our Supreme Court”).        However, there is no indication in the record of

whether the court conducted an on-the-record colloquy, nor a statement of

reasons for the court’s denial of the motion.      See Pa.R.Crim.P. 591, cmt.;

Pardo, 35 A.3d 1222, 1227.         We thus cannot resolve whether the court

found Appellant established a fair and just reason for withdrawing the plea

or provided “an insincere assertion of innocence.”6       See Carrasquillo, 86


6
  We emphasize that we offer no opinion as to whether Appellant should
have been permitted to withdraw his guilty plea.



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A.3d 830.     Thus, this Court cannot conclude that this appeal is wholly

frivolous.

      We remand for Counsel to file, within thirty days of this memorandum,

either an advocate’s brief or an amended Anders brief which addresses the

court’s denial of Appellant’s pre-sentence motion to withdraw his plea.

Should Counsel choose to file an amended Anders brief, he shall include any

other issues he deems necessary for our review, including the guilty plea

and sentencing issues raised in his current brief; counsel shall also file a

separate petition to withdraw.     The Commonwealth shall have thirty days

from the date of Counsel’s filing to file a responsive appellee’s brief.

      In light of our disposition, we do not rule on the propriety of the guilty

plea colloquy and Appellant’s sentences at this time.

      At this juncture, we note the Commonwealth has filed with this Court

an application for post-submission communication.          It requests leave to

discuss intervening case authority, the decision in Commonwealth v.

Prendes, 97 A.3d 337 (Pa. Super. 2014). Because the Commonwealth may

file an appellee’s brief in response to the anticipated brief from Counsel, we

deny the Commonwealth’s application for post-submission communication.

      Case remanded for proceedings consistent with this memorandum.

Commonwealth’s application for post-submission communication denied.

Panel jurisdiction retained.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2014




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