J-S65021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DENISE D. WHITE

                            Appellant              No. 3563 EDA 2013


          Appeal from the Judgment of Sentence November 22, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009139-2009


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 25, 2014

       Appellant, Denise D. White, appeals from the judgment of sentence

entered on November 22, 2013, as made final by the denial of Appellant’s

post-sentence motion on December 5, 2013.           On this direct appeal,

Appellant’s court-appointed counsel has filed both a petition to withdraw as

counsel and an accompanying brief pursuant to Anders v. California, 386

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

2009).1     We conclude that Appellant’s counsel has complied with the

procedural requirements necessary to affect withdrawal.     Moreover, after

independently reviewing the record, we conclude that the instant appeal is



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1
    See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).



*Retired Senior Judge assigned to the Superior Court.
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wholly frivolous.      We therefore grant counsel’s petition to withdraw and

affirm Appellant’s judgment of sentence.

        On January 7, 2013, Appellant entered an open guilty plea to

aggravated assault and endangering the welfare of a child.2 During the plea

colloquy, Appellant admitted that she was pleading guilty to both charges

because she was, “in fact, guilty of those offenses.”          N.T. Guilty Plea

Hearing, 1/7/13, at 26. Further, Appellant admitted that, if the case went to

trial, the Commonwealth would be able to prove, beyond a reasonable

doubt, the facts underlying the crimes. Id. at 25-27. Specifically, Appellant

admitted to the following underlying facts: on January 16, 2009, Appellant

was inside her Philadelphia house when she immersed her seven-month-old

son in a vase full of boiling water, inflicting upon her son “substantial third

degree burns to [25] percent of his lower back, [as well as to his] abdomen,

genitalia, [and] upper thighs.” Id. at 11-22. During the colloquy, Appellant

also admitted that, at some point in the prior two months, her son had

sustained blunt force trauma to the head; this blunt force trauma resulted in

her son suffering a “chronic subdural hematoma with two [] skull fractures.”

Id. at 11-22.

        Prior to pleading guilty, Appellant read and signed a detailed, five-page

written guilty plea statement. See Written Guilty Plea Statement, 1/7/13, at


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2
    18 Pa.C.S.A. §§ 2702(a)(1) and 4304(a)(1), respectively.



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1-5. Moreover, prior to accepting Appellant’s plea, the trial court conducted

a lengthy and inclusive oral colloquy. N.T. Guilty Plea Hearing, 1/7/13, at 3-

27. After the colloquy, the trial court found, as a fact, that Appellant’s plea

was “knowing[ly], voluntary[ily], and intelligent[ly]” entered.     Id. at 27.

Therefore, the trial court accepted Appellant’s plea and deferred sentencing,

pending a pre-sentence investigation and psychiatric report. Id.

      On November 22, 2013, the trial court sentenced Appellant to serve an

aggregate term of two to four years in prison for her convictions.        N.T.

Sentencing, 11/22/13, at 36-38. Appellant did not file a motion to withdraw

her plea.   Instead, Appellant filed a timely post-sentence motion, wherein

Appellant requested that the trial court “issue an [o]rder modifying

[Appellant’s] sentence, and reducing [her sentence to a term of] 11 ½ to 23

month[s]” in county jail. Appellant’s Post-Sentence Motion, 12/2/13, at 1-2.

The trial court denied Appellant’s post-sentence motion on December 5,

2013 and Appellant filed a timely notice of appeal to this Court.

      On appeal, Appellant’s court-appointed counsel has filed a petition for

leave to withdraw and has accompanied this petition with an Anders brief.

Within the Anders brief, Appellant essentially claims: that the Philadelphia

Court of Common Pleas did not have jurisdiction over her case; that she

should have been permitted to withdraw her plea, as her plea was

involuntary; that her plea counsel was ineffective for failing to fully advise

her of the consequences of pleading guilty; and, that her sentence is illegal.

See Appellant’s Brief at 8-9.

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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. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

     To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.   First, counsel must “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.”

Miller, 715 A.2d at 1207.     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.

Santiago, 978 A.2d at 361.

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

and advise the client “of [the client’s] right to retain new counsel, proceed

pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

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

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


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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.3    We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous. Our analysis begins with the

issues raised in the Anders brief.

        Appellant first claims that the Philadelphia County Court of Common

Pleas did not have jurisdiction over her case. This claim is frivolous.

        18   Pa.C.S.A.    §   102    establishes   the   territorial   applicability   of

Pennsylvania’s Crimes Code. In relevant part, this section provides:

          (a) General rule. – Except as otherwise provided in this
          section, a person may be convicted under the law of this
          Commonwealth of an offense committed by his own conduct
          or the conduct of another for which he is legally accountable
          if []:

              (1) the conduct which is an element of the offense or
              the result which is such an element occurs within this
              Commonwealth[.]

18 Pa.C.S.A. § 102(a).



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3
    Appellant has not responded to counsel’s petition to withdraw.



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      In the case at bar, Appellant admitted that the crimes to which she

pleaded guilty occurred in her Philadelphia house.            See N.T. Guilty Plea

Hearing, 1/7/13, at 18.      Since “each court of common pleas within this

Commonwealth possesses the same subject matter jurisdiction to resolve

cases arising under the Pennsylvania Crimes Code,” and since Appellant

admitted that the      crimes to       which she     pleaded guilty occurred in

Philadelphia, the Philadelphia Court of Common Pleas undoubtedly possessed

subject   matter     jurisdiction     to   resolve   Appellant’s   criminal   case.

Commonwealth v. Bethea, 828 A.2d 1066, 1075 (Pa. 2003). Appellant’s

claim to the contrary is frivolous.

      Next, Appellant claims that she should have been permitted to

withdraw her guilty plea, as her plea was involuntary. This claim is waived,

as Appellant failed to raise this claim before the trial court.

      Under our rules and precedent, “[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). Therefore, to preserve a challenge to a guilty plea, the individual

must raise the issue prior to sentencing, at sentencing, or in a post-sentence

motion. Failing this, the challenge is waived. Commonwealth v. Tareila,

895   A.2d   1266,   1270    n.3    (Pa.    Super.   2006);   Commonwealth       v.

D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002). In the case at bar,

Appellant failed to confront the trial court with any challenge to her guilty

plea. The current issue is thus waived.


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      For her third issue on appeal, Appellant claims that her counsel was

ineffective for failing to fully advise her of the consequences of pleading

guilty.   This claim is unreviewable on direct appeal.   Commonwealth v.

Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general rule, a [defendant]

should wait to raise claims of ineffective assistance of trial counsel until

collateral review”); Commonwealth v. Holmes, 79 A.3d 562, 620 (Pa.

2013) (“absent [certain, specified] circumstances [(that are inapplicable to

the case at bar)] claims of ineffective assistance of counsel are to be

deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal”).

      Finally, Appellant claims that her sentence was illegal.   This claim is

frivolous, as Appellant admits that her sentence was “at the lowest part of

the minimum of the [sentencing] guidelines.”        Appellant’s Brief at 9.

Therefore, since Appellant’s sentence does not exceed the statutory

maximum term, Appellant’s final claim on appeal is frivolous.

      We have thus independently considered the issues raised within the

Anders brief and have determined that they are frivolous, waived, or

unreviewable on direct appeal. In addition, after an independent review of

the entire record, we see nothing that might arguably support this appeal.

The appeal is therefore wholly frivolous. Accordingly, we affirm Appellant’s

judgment of sentence and grant counsel’s petition to withdraw appearance.


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      Petition to withdraw appearance granted.   Judgment of sentence

affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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