J-S30013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 AARON MILLS                             :
                                         :
                   Appellant             :   No. 1045 EDA 2018

       Appeal from the Judgment of Sentence Entered March 6, 2018
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0001155-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                    FILED OCTOBER 25, 2019

     Appellant, Aaron Mills, challenges the judgment of sentence entered in

the Chester County Court of Common Pleas, following his convictions for

robbery and related offenses. He contests the sufficiency of the evidence

sustaining his convictions, and raises a challenge pursuant to Batson v.

Kentucky, 476 U.S. 79 (1986). Additionally, counsel for Appellant has filed a

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and a motion to

withdraw. We deny counsel’s petition to withdraw, and order counsel’s

compliance with our instructions.

     The victim, Scott Thornton, and his wife returned home after dinner at

a local restaurant. As Thornton exited the car, he saw a tall, thin, African

American man approach. The man was wearing a mask pulled down over half

his face as he raised a semiautomatic weapon to Thornton’s head and said, “I
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know you got money. Give me your cash. Give me your wallet.” N.T. Trial,

1/23/18, at 16.

      Thornton handed over his cell phone, but the man continued to demand

Thornton’s wallet. After Thornton complied, the assailant rifled through the

wallet, pulled out Thornton’s debit card, and demanded the card’s personal

identification number. Thornton made up a number as the man bent to pick

up the wallet, which he had dropped in his haste. Thornton then unsuccessfully

attempted to tackle him.

      The man again pointed the gun at Thornton and instructed him to get

down on the ground, where he kicked Thornton in the ribs. Thornton looked

up just as the man raised the gun to Thornton’s face and pulled the trigger.

Thornton heard the click of the gun, and saw the man’s eyes widen in surprise

when it did not fire. The robber began running away as Thornton gave chase.

The robber got into a dark-colored Nissan sedan with Delaware plates and

drove off. A red sedan that had been parked right behind the robber’s vehicle

also quickly peeled out of the neighborhood.

      Thornton called police, who spotted the vehicles driving close together

on the highway approximately 15 minutes later. Officers conducted a traffic

stop of the dark-colored Nissan, and arrested Appellant and his accomplice,

who was in the other vehicle. Police recovered Thornton’s wallet in Thornton’s

neighborhood, where Appellant had discarded it.

      Appellant proceeded to a jury trial. Appellant’s accomplice, Myles

Turner, testified that he and Appellant had planned to break into houses in

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Thornton’s neighborhood and steal televisions. Turner brought his girlfriend

and sister, who accompanied the men in a red sedan. Turner stated that when

Appellant exited the Nissan, Turner believed he was going to burglarize a

nearby home. Appellant then ran back toward the cars moments later,

shouting “pull off, pull off!” as a white man chased him. N.T. Trial, 1/23/18,

at 82.

         The jury convicted Appellant of three counts of robbery, two counts each

of aggravated assault and simple assault, and one count each of terroristic

threats, theft by unlawful taking, receiving stolen property, carrying a firearm

without a license, possession of an instrument of crime, and criminal

conspiracy, and the court separately convicted Appellant of persons not to

possess firearms.1 The court ordered a pre-sentence investigation. Ultimately,

Appellant was sentenced to an aggregate 16½ to 44 years’ incarceration. He

filed a pro se notice of appeal. The court ordered him to file a Pa.R.A.P.

1925(b) statement, and he complied.2

         This Court remanded the case for a determination regarding whether

Appellant’s counsel had abandoned him, given the irregularity of Appellant



____________________________________________


118 Pa.C.S.A. §§ 3701(a)(1); 2702(a); 2701(a); 2706(a); 3921(a); 3925(a);
6106(a)(1); 907(a); 903(a)(1); and 6105(a)(1).

2 Appellant also filed a pro se motion for reconsideration, which the trial court
dismissed as untimely.




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filing a pro se notice of appeal while still represented and counsel’s failure to

respond to this Court’s subsequent orders.3

       The trial court held a hearing and established trial counsel had

abandoned Appellant. The court appointed new counsel, who filed a revised

Pa.R.A.P. 1925(b) statement raising a Batson challenge and contesting the

sufficiency of the evidence. However, counsel then filed an Anders brief.

Though Appellant responded by filing an application for substitution of

appointed counsel, he did not submit any other materials. This appeal is now

properly before us.

       Before addressing the merits of Appellant’s claims, we are first tasked

with determining whether counsel has complied with the procedures set forth

in Anders. See Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super.

2015).

       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….



____________________________________________


3 Included in these was an order for Appellant to file an amended notice of
appeal with this Court. Appellant’s pro se notice of appeal failed to state
explicitly that he was appealing from the judgment of sentence entered on
March 6, 2018, or list his appeal docket number, 1045 EDA 2018. This order
was sent to Appellant’s trial counsel, whom the trial court later determined
had abandoned Appellant on appeal. To date, neither Appellant nor his new
appellate counsel has complied with the order. We now direct Appellant’s new
counsel to file an amended notice of appeal.

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      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.

Commonwealth v. Tukhi, 149 A.3d 881, 885-886 (Pa. Super. 2016)

(citation omitted).

      The Anders brief is subject to particular requirements. Our Supreme

Court dictates that the brief must: provide a summary of the procedural

history and facts of the case, complete with citations to the record; refer to

any information in the record that counsel believes could arguably support the

appeal; present counsel’s conclusion that the appeal is frivolous; and state

counsel’s reasons for so concluding. See Santiago, 978 A.2d at 354. “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. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)

(citation omitted).

      If this Court determines that counsel’s petition and brief satisfy the

requirements of Anders, we will undertake an independent review of the

appeal to ascertain whether it is wholly frivolous. See Tukhi, 149 A.3d at 886.

If it is found to be frivolous, we will grant counsel’s petition to withdraw, and

affirm the judgment of sentence. See id.

      Here,   counsel’s   petition   states   he   conducted   a   conscientious

examination of the record, he was unable to discover any meritorious issues

to raise on appeal, and he has concluded the appeal is wholly frivolous.

Counsel also attached to his petition a copy of the letter he sent to Appellant,

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which advises that Appellant may proceed pro se or retain private counsel to

raise any additional issues he believes ought to be brought to this Court’s

attention. The letter states counsel enclosed a copy of the petition to

withdraw. It also affirms counsel’s intention to mail a copy of the Anders brief

to Appellant “as soon as it is completed.” Counsel’s Letter, at 1.

      However, when this Court examined the Anders brief, the only name

on the proof of service is that of the counsel for the Commonwealth.

Appellant’s counsel does not attest in any other document that a copy of the

brief was actually furnished to Appellant. Further, Appellant’s application for

the appointment of substitute counsel mentions that counsel sent Appellant

“his resignation,” but makes no mention of receipt of a brief. Appellant’s

Petition, at 1.

      Therefore, we have no choice but to deny counsel’s application to

withdraw for failure to comply with the dictates of Anders. Counsel is

instructed to file the amended notice of appeal. Upon receipt, our Prothonotary

is directed to send a copy of the amended notice to the trial court. Counsel is

also ordered to either supply a certificate of service demonstrating that

Appellant was properly provided with a copy of the Anders brief, before re-

filing his petition to withdraw, or to file an advocate’s brief.

      Application to withdraw denied. Counsel ordered to file an amended

notice of appeal. Counsel directed to comply with these instructions within

thirty days of the date of this memorandum. Jurisdiction retained.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/19




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