J-S59008-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

JAMARIO RAKEEM MARTIN,

                           Appellant                  No. 1616 WDA 2014


          Appeal from the Judgment of Sentence September 3, 2014
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003382-2013


BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED NOVEMBER 09, 2015

       Jamario Rakeem Martin appeals from the judgment of sentence of five

to ten years incarceration to be followed by two years probation after a jury

found him guilty of carrying a firearm without a license, person not to

possess a firearm, resisting arrest, flight to avoid apprehension, and

disorderly conduct.        Counsel has filed a petition to withdraw from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

deny counsel’s petition to withdraw and direct her to file either a compliant

Anders brief or a merits brief, addressing the issue of the lawfulness of

Appellant’s arrest.

       The trial court recounted the pertinent facts as follows.


*
    Former Justice specially assigned to the Superior Court.
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             On August 26, 2013, at approximately 11:15 p.m., officers
       of the Erie Police Department were looking for a wanted person,
       Ronnie Washington, in the high-crime area of 330 East 3rd
       Street, City of Erie, Pennsylvania. Officers had a description of
       Washington as a black male, wearing a white t-shirt and grey
       sweatpants.

              While officers were standing on the sidewalk at 326 East
        rd
       3 , they observed an individual wearing a white t-shirt in front
       of 340 East 3rd. After the individual saw the police, he ran
       behind the house. The officers followed and observed three
       individuals, including [Appellant] in the well-lighted backyard.
       [Appellant], who wore a red t-shirt and tan pants, began
       reaching into his waistband several times.            Based upon
       [Appellant’s] evasive behavior and high crime area, along with
       fearing for their safety, police instructed him to stop and show
       his hands. [Appellant], appearing “panicky”, refused to comply,
       positioned himself behind the other two compliant individuals,
       and continued to reach into his waistband. Police continued to
       instruct him to show his hands. [Appellant] then fled, discarded
       an item from his pants (later identified as a firearm), and
       continued to run until he was apprehended and placed into
       custody. [Appellant] struggled with police during his arrest.
       Police recovered the firearm in front of 334 East 3rd Street.

             After his arrest, police became aware that [Appellant] had
       a prior firearms conviction and did not have a valid license to
       carry a firearm.

Trial Court Opinion, 4/30/14, at 1-2.1

       Appellant filed an omnibus pre-trial motion, which included both a writ

of habeas corpus and a suppression motion. Appellant contested both the

Commonwealth’s prima facie evidence and whether he was lawfully stopped
____________________________________________


1
  The opinion referenced pertains to the trial court’s pre-trial decision
regarding Appellant’s omnibus pre-trial motion that included a suppression
motion as well as a habeas corpus motion alleging insufficient prima facie
evidence to support the charges.



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and arrested. With respect to the latter contention, Appellant averred that

he was illegally arrested when police approached him in the backyard and,

drawing their weapons, directed him to put his hands in the air.             He

submitted that police lacked probable cause to detain him and that his

subsequent discarding of his weapon while fleeing from police should have

been suppressed.

       The trial court ruled that the initial encounter with Appellant was a

mere encounter.       It continued that once Appellant acted suspiciously in a

high-crime area at night by reaching into his waistband, police had

reasonable suspicion to conduct an investigatory detention. Once Appellant

fled and threw his weapon away, police had probable cause to arrest

Appellant.     The court also held that the Commonwealth’s evidence was

sufficient to establish a prima facie case of the charges alleged.

       Appellant proceeded to a jury trial. The jury found Appellant guilty of

the aforementioned offenses.           Appellant had prior adult convictions and

juvenile adjudications that precluded him from possessing a firearm.        The

court sentenced Appellant on September 3, 2014, to five to ten years

imprisonment for the person not to possess a firearm offense and a

consecutive period of two years probation for the resisting arrest count.2

____________________________________________


2
  Appellant was sentenced by a different jurist than the one who presided
over his jury trial.



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The court imposed no further sentence for the remaining charges.            This

timely appeal ensued.        The sentencing court directed Appellant to file and

serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Counsel complied, and the sentencing court indicated that the pre-

trial opinion authored by the trial judge adequately addressed Appellant’s

issues. Similarly, the trial judge issued a Rule 1925(a) order setting forth

that the reasons for the denial of Appellant’s suppression and habeas claims

could be found in its April 30, 2014 opinion.

       Appellant’s counsel has now filed a petition to withdraw and an

accompanying Anders brief.3 In her brief, counsel contends that there are

no non-frivolous issues to be reviewed and sets forth an issue that arguably

could support the appeal as “whether the Appellant’s conviction, based on

his arrest and subsequently discovered evidence was in error due to the fact

that the police lacked probable cause to arrest the Appellant and the

Commonwealth ultimately failed to establish a prima facie case.”        Anders

brief at 3.

       Since we do not consider the merits of an issue raised in an Anders

brief without first reviewing a request to withdraw, we first consider

counsel’s petition to withdraw.          Commonwealth v. Cartrette, 83 A.3d
____________________________________________


3
  Appellant is represented by a different member of the Erie County Public
Defender’s Office than the individual from that office who represented him at
trial.



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1030 (Pa.Super. 2013) (en banc).     In order to be permitted to withdraw,

counsel must meet three procedural requirements: 1) petition for leave to

withdraw and state that, after making a conscientious examination of the

record, counsel has concluded that the appeal is frivolous; 2) provide a copy

of the Anders brief to the defendant; and 3) inform the defendant that he

has the right to retain private counsel or raise, pro se, additional arguments

that the defendant deems worthy of the court’s attention. Id.

     Counsel’s petition to withdraw provides that she made a conscientious

review of the record and concluded that there are no non-frivolous issues.

Counsel informed Appellant that she was withdrawing and furnished him

with copies of both the petition to withdraw and Anders brief.       Further,

counsel instructed Appellant that he has the right to retain new counsel or

can proceed pro se and raise any issues he believes this Court should

consider. Accordingly, counsel has complied with the procedural aspects of

Anders.

     Counsel having met the procedural dictates of Anders, we now

examine whether counsel’s Anders brief meets the substantive elements of

Santiago. Pursuant to Santiago, an Anders brief 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



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      case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Santiago, supra at 361.

      Counsel has included a summary of the history of the case, including

the relevant factual background. She has cited to the record and forwards

issues that were preserved below relative to Appellant’s suppression motion

and habeas corpus petition.     Counsel concludes that Appellant’s appeal is

frivolous and sets forth case law that holds that issues concerning whether a

prima facie case was established are moot and not subject to review after

the   defendant   was   found   guilty.     See   Anders    brief   at   6   (citing

Commonwealth v. Lee, 662 A.2d 645 (Pa. 1995)).

      However, counsel has failed to appreciate that the issue leveled in her

brief actually includes two discrete claims. While we agree with counsel that

Appellant’s position relative to whether a prima facie case existed does not

entitle him to relief where the Commonwealth met a more significant burden

of proof at trial, she has not addressed in any manner the separate position

relative to the lawfulness of Appellant’s arrest.   Accordingly, we decline to

permit counsel to withdraw and direct her to file either an Anders brief or a

merits brief, which discusses Appellant’s suppression claim that was leveled

below and preserved for purposes of appeal. Counsel shall have forty-five

days from the date of the return of the record to comply.




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      Petition to withdraw denied.   Case remanded with instructions.

Jurisdiction retained.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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