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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

SEAN BRYE,

                         Appellant                No. 1813 EDA 2014


            Appeal from the Judgment of Sentence of June 9, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007174-2013

BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                           FILED APRIL 27, 2015

     Appellant, Sean Brye, appeals from the judgment of sentence entered

on June 9, 2014. On this direct appeal, Appellant’s court-appointed counsel

filed both a petition to withdraw as counsel and an accompanying brief

pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),

and its federal predecessor, Anders v. California, 386 U.S. 738 (1967).

We conclude that Appellant’s counsel has complied with the procedural

requirements necessary to withdraw.      Furthermore, after independently

reviewing the record, we conclude that the appeal is wholly frivolous. We,

therefore, grant counsel’s petition to withdraw and affirm the judgment of

sentence.

     The factual background of this case is as follows. On November 28,

2010, Appellant accosted Brian Posada (“Brian”) in the 1800 block of East
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Harold Street.    Appellant demanded money that he contended Brian owed

him.     Appellant left, came back, and began to threaten to kill Brian.

Appellant then grabbed Brian, began choking him, and threw him into a car.

Appellant retrieved a knife from his pocket and stabbed Brian in the back.

Brian’s mother, Soth Posada, attempted to disarm Appellant and she was

stabbed in the hand.

        The procedural history of this case is as follows.    On June 7, 2013,

Appellant was charged via criminal information with aggravated assault. 1 On

February 10, 2014, Appellant pled guilty to that lone charge.         On June 9,

2014, Appellant was sentenced to an aggregate term of three to ten years’

imprisonment. The timely appeal followed.2

        Appellant’s counsel raises four issues in her Anders brief:

        1. Whether the trial court had jurisdiction over this case?

        2. Whether Appellant’s plea was entered into knowingly and
           voluntarily?

        3. Whether plea counsel provided ineffective assistance?

        4. Whether Appellant’s sentence was illegal?

See generally Anders Brief at 7-9.



1
    18 Pa.C.S.A. § 2702(a)(1).
2
   On June 17, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 10, 2014, Appellant’s counsel filed notice of her
intent to file an Anders brief with this Court. See Pa.R.A.P. 1925(c)(4). On
September 3, 2014, the trial court issued a statement in lieu of an opinion.


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     Before reviewing the merits of this appeal, this Court must first

determine   whether   counsel     has   fulfilled   the   necessary   procedural

requirements for withdrawing as counsel.             See Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). To withdraw

under Anders, court-appointed counsel must satisfy certain technical

requirements. First, counsel must “petition the court for leave to withdraw

and state that after making a conscientious examination of the record, [s]he

has determined that the appeal is frivolous.”              Commonwealth v.

Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel:

     (1) provide[s] a summary of the procedural history and facts,
     with citations to the record;

     (2) refer[s] to anything in the record that counsel believes
     arguably supports the appeal;

     (3) set[s] forth counsel’s conclusion that the appeal is frivolous;
     and

     (4) state[s] 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.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014), quoting

Santiago, 978 A.2d at 361.

     Finally, counsel must furnish a copy of the Anders brief to her client

and “advise[] him of his right to retain new counsel, proceed pro se[,] or



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raise any additional points that he deems worthy of the court’s attention,

and attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).

     If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting

McClendon, 434 A.2d at 1187.       It is only when both the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw. In the case at bar, counsel has met all of the above procedural

obligations. We now turn to whether this appeal is wholly frivolous.

     The first issue raised in counsel’s Anders brief is whether the trial

court possessed jurisdiction over this case.     “Jurisdiction relates to the

court’s power to hear and decide the controversy presented. All courts of

common pleas have statewide subject matter jurisdiction in cases arising

under the Crimes Code.” Commonwealth v. Gross, 101 A.3d 28, 32 (Pa.

2014) (internal citation, quotation marks, and alteration omitted).    In this

case, the aggravated assault occurred in Philadelphia County, which is in the

Commonwealth of Pennsylvania.      Therefore, all courts of common pleas in

the Commonwealth, including the Court of Common Pleas of Philadelphia




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County, possessed jurisdiction over this case.       Accordingly, the first issue

raised in counsel’s Anders brief is frivolous.

      The second issue raised in counsel’s Anders brief is whether Appellant

entered his plea knowingly and voluntarily. The trial court conducted a full

colloquy with Appellant at the guilty plea hearing. Appellant stated, under

oath, that he was pleading guilty of his own free will. N.T., 2/10/14, at 5.

He further stated that no one had threatened or coerced him into pleading

guilty. Id. Appellant stated that he was not promised anything for his guilty

plea. Id. He stated that he had reviewed the case with his attorney and

that he was satisfied with his attorney’s representation.           Id. at 5-6.

Appellant stated that he reviewed the written guilty plea colloquy with his

attorney and understood its contents, including the rights he was giving up

by pleading guilty. Id. at 4. He stated he was not under the influence of

drugs or alcohol.   Id.   He stated that he did not suffer from any mental

illness. Id. at 4-5. The trial court apprised him of the maximum penalty he

could face. Id. at 3. Appellant thereafter pled guilty to aggravated assault.

Thus, it is obvious from the record that Appellant knowingly and intelligently

chose to plead guilty to aggravated assault.        Therefore, the second issue

contained in counsel’s Anders brief is frivolous.

      The third issue raised in counsel’s Anders brief is whether Appellant’s

plea counsel rendered ineffective assistance. A claim that plea counsel was

ineffective, however, may only be raised via a petition filed pursuant to the



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Post-Conviction   Relief   Act,   42    Pa.C.S.A.    §§   9541-9546.      See

Commonwealth v. Rigg, 84 A.3d 1080, 1087 (Pa. Super. 2014). Such a

claim may not be raised on direct appeal.     See id. Accordingly, the third

issue raised in counsel’s Anders brief is frivolous for purposes of direct

appeal.3

      The final issue raised in counsel’s Anders brief is whether Appellant’s

sentence was illegal. Appellant was convicted of aggravated assault, a first-

degree felony. The statutory maximum for aggravated assault is 20 years’

imprisonment.     Commonwealth v. Hill, 66 A.3d 365, 371 (Pa. Super.

2013), citing 18 Pa.C.S.A. § 107(b)(2). Appellant was sentenced to three to

ten years’ imprisonment, well below the statutory maximum. Therefore, his

sentence was legal and the fourth issue contained in counsel’s Anders brief

is frivolous.

      In sum, we conclude that all four issues raised in counsel’s Anders

brief are frivolous. Furthermore, after an independent review of the entire

record, we conclude that no other issue of arguable merit exists. Therefore,

we will grant counsel’s request to withdraw.        Having determined that the

issues raised on appeal are frivolous, or may not be pursued on direct

appeal, we will affirm the judgment of sentence.




3
  We express no view as to the alleged ineffectiveness of Appellant’s plea
counsel.



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     Petition for Leave to withdraw as Counsel granted. Judgment of

sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2015




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