J-S57017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY LEE DANIELS

                            Appellant               No. 3043 EDA 2013


            Appeal from the Judgment of Sentence October 8, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000344-2012


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 28, 2014

        Appellant, Jeffrey Lee Daniels, appeals from the October 8, 2013

aggregate judgment of sentence of 30 to 60 years’ incarceration, followed by

20 years’ probation, which the trial court imposed after a jury convicted him

of multiple sex offenses. In addition, Appellant’s counsel has filed with this

Court a petition to withdraw, together with an Anders1 Brief, averring the

appeal is frivolous. After careful review, we affirm the judgment of sentence

and grant counsel’s petition to withdraw.

        Our review of the certified record discloses the following procedural

history of this case. On May 4, 2011, the City of Chester Police Department

filed a criminal complaint, charging Appellant with four counts each of rape


____________________________________________
1
    Anders v. California, 386 U.S. 738 (1967).
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of a person less than 13 years old, involuntary deviate sexual intercourse

(IDSI) of a person less than 13 years old, sexual assault, aggravated

indecent assault of a person less than 13 years old, indecent assault of a

person less than 13 years old, and endangering the welfare of children by

parent/guardian/other, and two counts of indecent exposure,2 alleging

multiple acts of sexual abuse against his minor daughters during the

previous two years. The matter proceeded to a jury trial commencing with

jury selection on February 14, 2013 and concluding with a verdict on

February 21, 2013.        The jury found Appellant guilty of all the remaining

charges.

       On February 25, 2013, the trial court ordered Appellant to be assessed

by the Pennsylvania Sexual Offenders Assessment Board (SOAB), pursuant

to 42 Pa.C.S.A. § 9799.24.3            The SOAB determined Appellant to be a

sexually violent predator (SVP).          Appellant was sentenced on October 8,

2013 to an aggregate term of incarceration of 30 to 60 years, followed by 20


____________________________________________
2
   18 Pa.C.S.A. §§ 3121(c), 3121(b), 3124.1, 3125(a)(7), 3126(a)(7),
4304(a)(1), and 3127(a), respectively. The criminal complaint mistakenly
cited the rape and IDSI charges to the pre-2002 amendment sections of the
respective statutes. Handwritten corrections of the citations were made on
the subsequently filed information. Prior to verdict, the Commonwealth
withdrew the four sexual assault counts, two of the indecent assault counts,
two of the endangering the welfare of children counts, and the two indecent
exposure counts.
3
 On March 18, 2013, Appellant filed a pro se notice of appeal. This Court
quashed the appeal as interlocutory on May 21, 2013. Commonwealth v.
Daniels, 912 EDA 2013, Per Curiam Order, 5/21/13.


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years’ probation.     The sentencing court determined Appellant to be a SVP

and made him subject to a lifetime registration requirement.         No post-

sentence motion was filed.          After sentencing, on October 24, 2013, new

counsel was appointed to represent Appellant.4         On November 7, 2013,

Appellant filed a timely counseled notice of appeal.5        On June 9, 2014,

Appellant’s counsel filed, with this Court, a petition to withdraw as counsel,

together with an Anders brief. Appellant has not filed a response.

       On appeal, counsel advances on Appellant’s behalf the following issue

as having arguable merit.

              Whether the court abused its discretion when it
              instructed the jury that they would have to decide
              whether Mr. Daniels was guilty or innocent?

____________________________________________
4
   Although reflected in the trial court docket, neither this order nor the
circumstances occasioning it are contained in the certified record.
5
  Appellant had filed another pro se notice of appeal on October 11, 2013,
which this Court dismissed as duplicative on December 9, 2013.
Commonwealth v. Daniels, 2886 EDA 2013, Per Curiam Order, 12/9/13.
Additionally, the trial court docket contains an entry indicating the filing on
November 8, 2013, of an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). However, only an unstamped and unsigned
copy of the order is contained in the record certified to this Court.
Nevertheless, Appellant’s counsel twice filed a motion for an extension of the
time to file the statement, due to the unavailability of ordered transcripts.
Again, the trial court docket reflects the entry of orders granting the
requests, but no signed time-stamped copies are included in the certified
record. On February 14, 2014, within the time requested in counsel’s
second motion, Appellant’s counsel filed a statement of intent to file an
Anders brief, pursuant to Pa.R.A.P. 1925(c)(4). The trial court filed a Rule
1925(a) opinion on February 20, 2014, outlining the case but addressing no
specific issues, as none were identified.


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Anders Brief at 3.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, we review counsel’s Anders brief for

compliance with the requirements set forth by our Supreme Court in

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

                     [W]e hold that 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.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005) and its progeny, “[c]ounsel 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 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, 880 (Pa. Super. 2014)


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(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).6


____________________________________________
       6
         In her concurring memorandum, Judge Donohue aptly highlights
what we perceive as a persistent conflict in this Court, when confronted with
a counsel’s motion to withdraw and Anders brief, over the proper scope of
our independent review to determine if the appeal is wholly frivolous. While
the en banc cases cited in the concurring memorandum, Goodwin, and
Commonwealth v. James, 46 A.3d 776, 778 (Pa. Super. 2012), indicate
this Court has conducted independent reviews for “non-frivolous issues that
could be raised,” the propriety of doing so was not at issue in those cases.
Therefore, any suggestion that this Court is required to engage in such
review is merely dicta. We deem any precedential value to be limited.
Rather, we harbor the view that the proper procedure to follow, upon
presentation of a technically compliant motion to withdraw and Anders
brief, is that expressed by Judge Klein in Commonwealth v. Baney, 860
A.2d 127, 129 (Pa. Super. 2004) (lead opinion), appeal denied, 877 A.2d
459 (Pa. 2005).

                     [T]he following is the appropriate procedure:

                    1. The Superior Court should initially consider
              only the Anders brief to determine whether the
              issues are in fact wholly frivolous.

                    2. If the Court determines that the issues are
              not wholly frivolous, it should grant relief
              accordingly.

                   3. If it finds the issues in the Anders brief to
              be wholly frivolous, the Court should determine
              whether the defendant has been given a reasonable
(Footnote Continued Next Page)

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                       _______________________
(Footnote Continued)
             amount of time to either file a pro se brief or obtain
             new counsel.

                    4. When a reasonable amount of time has
             passed and no pro se or counseled brief has been
             filed, the Court should dismiss the appeal as wholly
             frivolous pursuant to its initial determination and
             affirm the decision of the trial court.

                   5. When a pro se or counseled brief has been
             filed within a reasonable amount of time, however,
             the Court should then consider the merits of the
             issues contained therein and rule upon them
             accordingly.

Id. (citation omitted). We recognize the limited precedential value of
Baney, where Judge Johnson concurred, reserving judgment on this portion
of Judge Klein’s lead opinion, and Judge Popovitch concurred in the result.
We cite it as a clear articulation of what we deem to be the correct scope of
our independent review dictated by Anders. See also Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (noting, “when conducting
an Anders review, this Court will consider not only the brief filed by counsel
but also any pro se appellate brief”), appeal denied, 936 A.2d 40 (Pa. 2007).

       In revising counsel’s duties in preparation of an Anders brief,
previously defined in Commonwealth v. McClendon, 434 A.2d 1145 (Pa.
1981), our Supreme Court appeared to endorse this approach, albeit in
dicta.

             [I]n Pennsylvania, when counsel meets his or her
             obligations [under Anders], “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.” McClendon, 434 A.2d at
             1187. Compare with [United States v.]Youla,
             241 F.3d [300,] 300-01 [(3d Cir. 2001)] (citing
             United States v. Wagner, 103 F.3d 551, 552-53
             (7th Cir. 1996) (explaining that where counsel’s brief
             appears adequate on its face, court confines its
             scrutiny on question of frivolity to those issues
(Footnote Continued Next Page)

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                       _______________________
(Footnote Continued)
             and portions of record identified by brief and, if
             filed, appellant’s pro se brief)).

Commonwealth v. Santiago, 978 A.2d 349, 355, n.5 (Pa. 2009)
(emphasis added).

       We believe the rationale for this procedure is sound. Certainly, this
Court has never reviewed the record in cases where an advocate’s brief is
filed to look for issues that might have been raised, excepting issues we may
raise sua sponte. While the concerns expressed in Anders are addressed to
vindicate a defendant’s right to counsel, those concerns are met by our
review of the technical requirements of Anders, including the requirement
that counsel demonstrate his or her thorough review of the record and make
reference to any issues that could arguably support an appeal. Thus, we
have found inadequate Anders briefs that failed to meet this requirement.
See Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006)
(holding counsel’s failure to secure all transcripts precluded compliance with
his obligation under Anders to “review[] the record to the extent required
by Anders/McClendon”); Commonwealth v. Goodenow, 741 A.2d 783,
786 (Pa. Super. 1999) (holding counsel’s inadequate recital of the
procedural history of a case with references to the record in his Anders brief
did not meet the technical requirements of Anders or evidence counsel’s
required review).

      In circumstances where this Court has determined, based on our
independent review, that an issue presented in an Anders brief is not, as
asserted by withdrawing counsel, in fact frivolous, we have denied leave to
withdraw and remanded for preparation of an advocate’s brief without
conducting further review for potential issues not included in the Anders
brief. See, e.g., Commonwealth v. Edwards, 906 A.2d 1225, (Pa. Super.
2006). Thus, for this Court to review for all potential issues as part of our
independent review of a motion to withdraw and Anders brief, where
counsel has complied with the technical requirements, including
demonstrating his or her complete review of the record, would result in
disparate levels of review. A review by this Court for all potential issues
renders the requirement of counsel to identify issues arguably supporting an
appeal and the opportunity afforded to the appellant to raise issues pro se
mere superfluities.

             Therefore, there are two purposes to be served by
             counsel’s filing a brief that refers to anything in the
             record that might arguably support the appeal: (1) it
(Footnote Continued Next Page)

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      Instantly, we are satisfied that counsel has complied with the technical

requirements of Anders and Santiago. Counsel carefully summarized the

pertinent procedural history and made appropriate references to the record.

He acknowledged his own review of the record, articulated one issue that

could arguably support an appeal, but stated his conclusion that the appeal

is nevertheless frivolous. Further, he set forth the reasons upon which he

based that conclusion.          Counsel has also complied with the notification

requirements described in Millisock. Since receiving notice, Appellant has

not filed any response. We therefore proceed with our independent review

of the record and the issue presented on Appellant’s behalf.


                       _______________________
(Footnote Continued)
             gives the reviewing court a basis upon which to
             decide if the appeal is, in fact, frivolous, and (2) it
             gives indigent defendants “as nearly as is
             practicable” that which is guaranteed them under the
             Sixth and Fourteenth Amendments, the right to
             counsel (and, in the process, protects counsel from
             ineffectiveness allegations).

Commonwealth v. Thomas, 511 A.2d 200, 202-203 (Pa. Super. 1986). In
Thomas, this Court, confronted with a deficient Anders brief and
Commonwealth brief, concluded the following.

             The briefs filed in this case would force this Court to
             play three roles, not one: for appellant, we must
             search a cold record for issues that could arguably
             support this appeal, and then, without the benefit of
             the Commonwealth’s advocacy, determine their
             merit. This we will not do.

Id. at 204. We agree with this conclusion.




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       In our inquiry, we are cognizant of the following standard of review.

“[W]hen evaluating the propriety of jury instructions, this Court will look to

the instructions as a whole, and not simply isolated portions, to determine if

the instructions were improper.” Commonwealth v. Charleston, 94 A.3d

1012, 1021 (Pa. Super. 2014) (citation omitted). “The trial court is free to

use its own expressions as long as the concepts at issue are clearly and

accurately presented to the jury.”      Commonwealth v. Ballard, 80 A.3d

380,   407   (Pa.   2013)   (citation   omitted),   cert.   denied,   Ballard   v.

Pennsylvania, 134 S. Ct. 2842 (2014).

       The error in the trial court’s charge occurred during its general

instruction to the jury, wherein it stated the following.

             [THE TRIAL COURT:]

             … In deliberating on your verdict you must not be
             influenced by anything outside of the evidence
             presented in this case and the law as given to you by
             the Court. Now the charge means simply – I’m
             going to paraphrase the charge for you. The charge
             simply means this. Each of you has to reach a
             decision yourself as to the guilt or innocence of the
             Defendant as to each of the charges. You have to
             reach the decision yourself. What the charge says is
             you have to come to your own decision with regard
             to guilt or innocence but only after careful
             consideration of what your fellow juror’s [sic]
             thoughts are, okay? It goes on to say that after
             considering the thoughts of your fellow jurors you
             believe your opinion is erroneous, then you can
             change it, but that you shouldn’t simply change it in
             order to reach a unanimous agreement. …

N.T., 2/21/13, at 87 (emphasis added).


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      At the conclusion of the charge, Appellant lodged the following

objection at sidebar.

            THE COURT:

            On behalf of the defense, with regard to the Court’s
            final charge, any objections, additions or deletions?

            [Defense Counsel]:

            One objection Your Honor, towards the end of your
            charge when you were talking about deliberations,
            you gave the jury a choice between guilt and
            innocence. And I don’t think that’s properly correct.
            I think it’s either guilty or not guilty; but not a choice
            between guilt or innocence. And I believe you said it
            twice.

            THE COURT:

                  Okay. I’m going to try to correct it. …

            [End side bar discussion]

            THE COURT:

            Ladies and gentlemen, during my comments to you I
            spoke about the guilt or innocence of the Defendant.
            That is not the criteria. The criteria is [sic] that you
            make a determination of whether you find the
            Defendant guilty or not guilty.        Remember, the
            standard is that the Commonwealth must prove their
            case beyond a reasonable doubt. Okay? Not beyond
            all doubt; but beyond a reasonable doubt. So if I
            said – if I used the word innocent, that was improper
            of me. You make the determination of whether you
            find the Defendant guilty of each element of each of
            the crimes charged, or not guilty of each element of
            each of the crimes charged. …

            [Side bar discussion]

            THE COURT:

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            All right; [defense counsel], are you satisfied with
            the Court’s cautionary instruction?

            [DEFENSE COUNSEL]:

            Yes, Your Honor.

            THE COURT:

            Okay. And objections, additions or deletions to the –
            about the balance of the charge?

            [DEFENSE COUNSEL]:

            No.

N.T., 2/21/13, at 92-94.

      In his Anders brief, counsel concluded that this issue is waived

because no objection was made to the trial court’s curative instruction and

no other relief was sought.    Anders Brief at 8; see also Commonwealth

Brief at 3-4. “The law is clear that in order to preserve a claim predicated on

an allegedly erroneous jury instruction, a litigant must raise an objection

before the jury retires to deliberate.” Commonwealth v. Sherwood, 982

A.2d 483, 505 (Pa. 2009), citing Pa.R.Crim.P. 647(B) (providing, “[n]o

portions of the charge nor omissions therefrom may be assigned as error,

unless specific objections are made thereto before the jury retires to

deliberate”).

      Instantly, the trial court sustained Appellant’s specific objection to its

improper use of the term “innocence” in its charge, and Appellant accepted

the trial court’s curative instruction without further objection, expressing

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satisfaction with the charge overall.      Accordingly, we agree that Appellant

has waived this issue. See Sherwood, supra. Furthermore, we conclude

the trial court’s corrective instruction adequately and accurately disabused

the jury of any mistaken inference from the original instruction. Accordingly,

we conclude Appellant suffered no prejudice from the trial court’s original

misstatement. See Ballard, supra.

         As the sole issue raised on Appellant’s behalf is waived, and otherwise

can afford him no relief, we agree with counsel that the instant appeal is

wholly frivolous.     We therefore grant counsel’s petition to withdraw and

affirm the October 8, 2013 judgment of sentence.

         Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.

         Judge Stabile concurs in the result.

         Judge Donohue files a concurring memorandum in which Judge Stabile

joins.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2014




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