J-S57001-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,          : IN THE SUPERIOR COURT OF
                                       :      PENNSYLVANIA
                 Appellee              :
                                       :
            v.                         :
                                       :
THOMAS R. LARDANI,                     :
                                       :
                 Appellant             : No. 436 EDA 2012

        Appeal from the Judgment of Sentence December 2, 2011,
              Court of Common Pleas, Philadelphia County,
            Criminal Division at No. CP-51-CR-0004080-2008

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED OCTOBER 10, 2014

     Thomas R. Lardani (“Lardani”) appeals from the December 2, 2011

judgment of sentence entered by the Philadelphia County Court of Common

Pleas. Concomitantly, counsel for Lardani has filed an Anders1 brief and a

motion to withdraw. Upon review, we affirm and grant counsel’s request to

withdraw.

     A jury convicted Lardani of criminal trespass and burglary, following

which the trial court sentenced him on December 2, 2011 to 10 to 20 years

of imprisonment. On December 28, 2011, Lardani filed a pro se request for

permission to appeal nunc pro tunc, based upon his mistaken belief that he

was beyond the 30-day time limit to appeal his judgment of sentence. The

request was treated as a notice of appeal and the trial court appointed


1
   Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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counsel to represent him. On April 26, 2012, the trial court ordered counsel

to file within 30 days a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).    Counsel did so on May 25, 2012, and the

trial court filed a responsive opinion pursuant to Pa.R.A.P. 1925(a) on June

6, 2012.

        On August 16, 2012, this Court issued a per curiam Order remanding

the case for the trial court to determine whether counsel abandoned Lardani

based upon counsel’s failure to file a brief on appeal. Counsel authored a

letter to the trial court on September 24, 2012, explaining the delay and

indicating that he had not abandoned Lardani.     For reasons unknown, the

trial court did not forward counsel’s letter to this Court until February 20,

2014.

        This Court issued a new briefing schedule on March 3, 2014.

Thereafter, counsel for Lardani filed an untimely Anders brief and a motion

to withdraw as counsel. After requesting and receiving an extension of time

to file a reply, Lardani filed a pro se response to counsel’s Anders brief,

asserting that counsel’s brief failed to comply with the mandates of Anders

v. California and failed to include an issue of possible merit.          The

Commonwealth filed its appellee’s brief late.

        Before we address the merits of Lardani’s appeal, we must discern

whether counsel has complied with Anders and Santiago. Anders requires

the following of counsel and this Court:



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            To be permitted to withdraw pursuant to Anders,
            counsel must: (1) petition the court for leave to
            withdraw stating that after making a conscientious
            examination of the record, counsel has determined
            the appeal would be frivolous; (2) file a brief
            referring to any issues that might arguably support
            the appeal, but which does not resemble a no-merit
            letter; and (3) furnish a copy of the brief to the
            defendant and advise him of his right to retain new
            counsel, proceed pro se, or raise any additional
            points he deems worthy of this Court’s attention.
            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. Wright, 846 A.2d 730, 736 (Pa. Super. 2004) (citations

omitted).

      Counsel’s brief must comply with the requirements our Supreme Court

set forth in Santiago:

            [T]he Anders brief that accompanies court-
            appointed counsel’s petition to withdraw […] 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.

      Lardani filed a pro se reply to counsel’s Anders brief, asserting therein

that counsel failed to include in his brief “(1) [a] summary of the procedural



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history and facts, with citations to the record; (2) a reference to anything in

the record that counsel believes arguably supports the appeal; and (3) fails

to 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.”   Pro Se Response at 7.    Our review of counsel’s Anders brief

reveals that he does include a factual and procedural summary with citations

to the record (Anders brief at 8-10) and raises an issue that arguably

supports the appeal (id. at 11).    Lardani is correct that counsel does not

include citation to cases and statutes supporting the issue identified, but our

Supreme Court in Santiago determined that is not necessary in an Anders

brief. In so concluding, the Court differentiated “between an Anders brief,

which offers an issue for a court’s consideration, but reflects counsel’s candid

assessment of the complete lack of merit in his client’s case, and a merits

brief, which implies that an issue is worthy of review and has some chance

of succeeding.” Santiago, 978 A.2d at 359-60. We therefore disagree with

Lardani that counsel’s Anders brief is deficient.

      We now turn to the issue of arguable merit included by counsel in his

Anders brief: “Whether the Commonwealth presented sufficient evidence to

satisfy the burden of proof, beyond a reasonable doubt, that [Lardani] was

the individual who unlawfully entered the home of the complainant and

removed property for [sic] the home?         Anders Brief at 11.       Counsel

concluded that the issue was frivolous as the complainant saw Lardani



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leaving his home and pursued him on foot, saw Lardani’s face, and was able

to provide a description of Lardani’s vehicle and his license plate number to

police. Id. The police found that the license plate was assigned to a vehicle

matching the description provided by the complainant and owned by

Lardani. Id. at 12. The complainant then identified Lardani in a photo array

as the person he observed fleeing from his home.        Id.   Pursuant to the

standard by which the Superior Court must review sufficiency claims,

viewing the evidence in the light most favorable to the Commonwealth,

counsel concluded that the issue was wholly frivolous. Id.

      Our review of the record comports with that of counsel.       See N.T.,

7/14/11, at 36-37, 39-40, 50-51; N.T., 7/15/11, at 20, 24-25. Although the

record contains evidence that tends to show that Lardani may not have been

the individual the complainant saw leaving his house, there was also

evidence presented to combat or explain the perceived inconsistencies. For

example, the record reflects that complainant originally told police that the

perpetrator was 5’11” and had brown or black hair. N.T., 7/14/11, at 83.

On the biographical information sheet provided to police, Lardani indicated

that he is 5’4” and is bald. N.T., 7/15/11, at 55. The complainant explained

his misjudgment of the perpetrator’s height by stating he provided the best

estimate that he could at the time, and that the perpetrator was moving the

entire time the complainant saw him standing and was otherwise sitting in

his vehicle. N.T., 7/14/11, at 82, 95-96. The police also testified that it was



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not uncommon for people to misjudge heights, especially when they are the

victim of the crime and are attempting to describe the perpetrator.       N.T.,

7/15/11, at 62. Furthermore, the record reflects that the description given

by the complainant otherwise matched Lardani. See id. at 68.

      The record also reflects that Lardani’s son was found by police to be

operating the vehicle in question on the day of the robbery. N.T., 7/15/11,

at 8. The complainant was shown a picture of Lardani’s son, however, and

testified, without hesitation, that he was not the person who he saw fleeing

his house that day. N.T., 7/14/11, at 58.

      Furthermore, although the record reflects that Lardani had a doctor’s

note faxed to the police station, indicating that Lardani was at the doctor’s

office on the date of the robbery from 1:40 p.m. until 4:00 p.m., N.T.,

7/15/11, at 49, the complainant observed the perpetrator leaving his house

at 12:55 p.m.    N.T., 7/14/11, at 34.      According to police, it would take

approximately 15 to 20 minutes to drive from the complainant’s house to the

doctor’s office, giving Lardani ample time to be at both locations at the times

claimed. Id. at 70-71.

      As counsel observed, our standard of review requires us to review a

the evidence in the light most favorable to the verdict winner to determine

whether there is sufficient evidence to allow the jury to find every element of

a crime beyond a reasonable doubt.       Commonwealth v. Cahill, 95 A.3d

298, 300 (Pa. Super. 2014). We do not reweigh the evidence, nor must the



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evidence presented preclude every possibility that the defendant is innocent.

Id. “Any doubts regarding a defendant’s guilt may be resolved by the fact-

finder unless the evidence is so weak and inconclusive that as a matter of

law no probability of fact may be drawn from the combined circumstances.”

Id.   The jury is permitted to believe all, part, or none of the evidence

presented. Id.

      Viewing the evidence pursuant to the above-described standard, we

agree that a claim that the Commonwealth failed to prove that Lardani was

the person who entered the complainant’s home and removed property

would be frivolous.

      In his pro se response to counsel’s Anders brief, Lardani raises an

additional issue that he states has arguable merit – that counsel should have

raised a claim of ineffective assistance of trial counsel for failing to adopt or

request a hearing on any of the 11 pro se motions Lardani filed alleging

violations of his right to a speedy trial pursuant to Pennsylvania Rule of

Criminal Procedure 600. Pro Se Response at 8. The law is clear, however,

that except in very limited circumstances, claims of ineffective assistance of

counsel are not reviewable on direct appeal. Commonwealth v. Holmes,

79 A.3d 562, 563-64 (Pa. 2013). According to the Holmes Court, claims of

ineffective assistance of counsel may be entertained during post-verdict

motions and on direct appeal, in the discretion of the trial judge, if (1) “a

discrete claim (or claims) of trial counsel ineffectiveness is apparent from



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the record and meritorious to the extent that immediate consideration best

serves the interests of justice”; or (2) “there is good cause shown, and []

the unitary review so indulged is preceded by the defendant’s knowing and

express waiver of his entitlement to seek PCRA review from his conviction

and sentence, including an express recognition that the waiver subjects

further collateral review to the time and serial petition restrictions of the

PCRA.” Id. The claim raised of trial counsel’s ineffectiveness is not clearly

meritorious on the face of the record, and there is nothing in the record to

suggest that Lardani waived his right to seek PCRA review. As neither of the

Holmes exceptions are present in the case at bar, a claim raising trial

counsel’s ineffectiveness on direct appeal would be frivolous.

      We have conducted an independent review of the record and have

found no additional, non-frivolous issues that counsel could have raised on

Lardani’s behalf.   As such, we affirm the judgment of sentence and grant

counsel’s motion to withdraw.

      Judgment of sentence affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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