J-S79031-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                 Appellee                   :
                                            :
                    v.                      :
                                            :
COSIL CHILDS,                               :
                                            :
                 Appellant                  :    No. 1136 EDA 2014

       Appeal from the Judgment of Sentence Entered May 16, 2013,
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0005497-2012

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

MEMORANDUM BY STRASSBURGER, J.:                    FILED FEBRUARY 19, 2015

      Cosil Childs (Appellant) appeals from the judgment of sentence

entered after a jury found him guilty of criminal attempt to acquire or obtain

possession of a controlled substance (oxycodone) by misrepresentation. In

addition,   Appellant’s   counsel   seeks   to   withdraw     from   representation

pursuant    to   Anders      v.   California,    386   U.S.    738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

affirm the judgment of sentence and grant counsel’s application to withdraw.

      Appellant was found guilty of the aforementioned crime on April 17,

2013, following a two-day jury trial.       On May 16, 2013, Appellant was

sentenced to five to ten years’ incarceration. Appellant timely filed a post-

sentence motion, which the trial court subsequently denied. Appellant did

not file a notice of appeal.



*Retired Senior Judge assigned to the Superior Court.
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        On October 21, 2013, Appellant timely filed pro se a petition pursuant

to the Post Conviction Relief Act (PCRA),1 requesting reinstatement of his

direct appeal rights nunc pro tunc. The lower court appointed PCRA counsel,

who then filed an amended petition seeking reinstatement of Appellant’s

direct appeal rights nunc pro tunc on March 6, 2014. On or about March 24,

2014, the lower court granted the petition.

        On April 4, 2014, Appellant filed a notice of appeal to this Court from

his judgment of sentence.        On April 8, 2014, the lower court ordered

Appellant to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b).       In response, counsel filed a statement,

pursuant     to   Pa.R.A.P.   1925(c)(4),   of   his   intent   to   withdraw   his

representation of Appellant.     The trial court then filed a Pa.R.A.P. 1925(a)

opinion.

        As a preliminary matter, we address counsel’s application to withdraw

before reaching the merits of the issues raised in the brief. Commonwealth

v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth

v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a

purported Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”).




1
    42 Pa.C.S. §§ 9541-9546.



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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 expounded further upon the

requirements of Anders:

     in 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.

Santiago, 978 A.2d at 361.




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

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

above requirements.2       “We, therefore, turn to the issue presented in

counsel’s Anders brief to make an independent judgment as to whether the

appeal is, in fact, wholly frivolous.” Commonwealth v. Martuscelli, 54

A.3d 940, 947 (Pa. Super. 2012).

        In his brief, Appellant’s counsel states one issue that might arguably

support an appeal: “Whether a mistrial should have been declared after the

prosecutor repeatedly referred to [Appellant] in [sic] a liar during closing

arguments?” Anders Brief at 3.

        Under Pennsylvania Rule of Appellate Procedure 302, “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a).       Instantly, Appellant’s trial counsel failed to

object to the prosecutor’s statements made during closing argument and

thus,    Appellant   has   waived   this   issue.    See   Commonwealth        v.

Andrulewicz, 911 A.2d 162, 168 (Pa. Super. 2006) (holding appellant’s

claim that “Commonwealth counsel committed prosecutorial misconduct in

her closing argument to the jury by continuously vouching for the credibility

and veracity of the Commonwealth's witnesses” was waived on appeal

because “[a] review of the record reveal[ed] that trial counsel failed to

2
    Appellant has not responded to counsel’s application to withdraw.



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object to the complained of statements”).        An issue that is waived is

frivolous.   See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.

Super. 2008). Therefore, we conclude that Appellant’s issue is frivolous.

      Accordingly, we affirm Appellant’s judgment of sentence and grant

counsel’s application to withdraw.

      Judgment of sentence affirmed.       Application to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/19/2015




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