J-S05024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN EARL POOLE, JR.                       :
                                               :
                       Appellant               :   No. 1034 WDA 2018

         Appeal from the Judgment of Sentence Entered March 15, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0001472-2017

BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 20, 2019

        Appellant John Earl Poole, Jr. appeals from the judgment of sentence of

an aggregate sentence of thirty to sixty years’ imprisonment following an open

guilty plea to one count of third-degree murder1 and one count of robbery.2

Appellant’s counsel has filed a petition to withdraw and an Anders/Santiago3

brief. We affirm and grant counsel’s petition to withdraw.

        We adopt the facts set forth in the trial court’s opinion. See Trial Ct.

Op., 10/16/18, at 1. On March 15, 2018, Appellant entered an open guilty

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. § 2502(c).
2   18 Pa.C.S. § 3701(a)(1)(i).
3Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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plea and was sentenced as set forth above.            He also signed a written

acknowledgment of his post-sentence and appellate rights, including his right

to file a post-sentence motion. Appellant did not challenge his sentence at

the hearing or file a post-sentence motion.        On July 13, 2018, the court

docketed Appellant’s pro se notice of appeal nunc pro tunc, which was dated

July 10, 2018.4 On July 18, 2018, the court ordered Appellant to comply with

Pa.R.A.P. 1925(b).       Appellant, also on July 18, 2018, filed a Rule 1925(b)

statement, apparently unaware of the court’s order.

        On August 10, 2018, Appellant requested representation by the Public

Defender’s Office, which agreed to represent Appellant that week. On August

17, 2018, Appellant’s counsel filed a petition to file a counseled Rule 1925(b)

statement nunc pro tunc, which the court granted. After several continuances,

Appellant’s counsel filed a Rule 1925(c)(4) statement of intent to file

Anders/Santiago brief.

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

Anders/Santiago brief with this Court.

        In the Anders/Santiago brief, counsel identifies three questions:

        1. Did the trial court commit an abuse of discretion when it
        imposed Appellant’s sentence given the circumstances of the case
        and Appellant’s lack of violent history?

        2. Did trial counsel not sufficiently plead Appellant’s case because
        he was a family friend of the victim’s family?

____________________________________________


4   The record did not include a postmarked envelope.


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        3. Should Appellant have received a psychiatric evaluation during
        the pendency of his case?

Anders/Santiago Brief at 8. Appellant did not file a pro se response with

this Court, although he filed a pro se application for writ of coram nobis, which

this Court forwarded to Appellant’s counsel under Commonwealth v. Jette,

23 A.3d 1032, 1044 (Pa. 2011).5

        “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted). We set forth the requirements for withdrawal

in Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super. 2014):

        Prior to withdrawing as counsel on a direct appeal under Anders,
        counsel must file a brief that meets the requirements established
        by our Supreme Court in Commonwealth v. Santiago . . . . The
        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 case law, and/or statutes on point that
           have led to the conclusion that the appeal is frivolous.

____________________________________________


5   We address Appellant’s petition below.


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      Santiago, 978 A.2d at 361. Counsel 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.”

Orellana, 86 A.3d at 879-80 (some citations omitted). If counsel complies

with these requirements, then “we will make a full examination of the

proceedings in the [trial] court and render an independent judgment [as to]

whether the appeal is in fact ‘frivolous.’” Id. at 882 n.7 (citation omitted).

Finally, “this Court must conduct an independent review of the record to

discern if there are any additional, non-frivolous issues overlooked by

counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (footnote and citation omitted); accord Commonwealth v. Yorgey,

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

      Here, Appellant’s counsel’s brief and petition to withdraw comply with

the technical requirements of Anders and Santiago. See Orellana, 86 A.3d

at 879-80. Appellant’s counsel’s brief summarizes the procedural history and

facts, includes arguments that could support the issue raised on appeal, and

cites legal authority to support its conclusion that the appeal is frivolous.

Appellant’s counsel also served Appellant with a copy of the brief and petition

to withdraw, and the petition advised Appellant of his right to retain new

counsel or proceed pro se to raise any points that he deems worthy of this

Court's attention.    We conclude that Appellant’s counsel has met the


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requirements of Anders and Santiago, and will therefore address the issues

raised in the Anders/Santiago brief.

     For the first issue, Appellant’s counsel suggests the trial court abused

its discretion by imposing a “manifestly excessive sentence” given the facts

and Appellant’s non-violent past. Anders/Santiago Brief at 13. Appellant’s

counsel acknowledges that Appellant did not move for post-sentence relief,

and therefore has waived the issue. Id. at 14. With respect to the merits,

Appellant’s counsel observes that Appellant’s sentence does not exceed the

statutory maximum and he also received all credit for time served. Id.

     We state the well-settled guidelines to challenge the discretionary

aspects of a sentence:

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. An appellant challenging
     the discretionary aspects of his sentence must invoke this Court's
     jurisdiction by satisfying a four-part test:

        We conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P.
        902 and 903; (2) whether the issue was properly preserved
        at sentencing or in a motion to reconsider and modify
        sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
        brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
        there is a substantial question that the sentence appealed
        from is not appropriate under the Sentencing Code, 42
        Pa.C.S.[ ] § 9781(b).

Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (citation

omitted).   In Tukhi, counsel filed an Anders/Santiago brief, which

challenged the discretionary aspects of the defendant’s sentence. Id. The

Tukhi Court held that the defendant waived the issue by not preserving the

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issue at the sentencing hearing or in a post-sentence motion. Id. Instantly,

Appellant, like the defendant in Tukhi, failed to raise his sentencing challenge

before the trial court and therefore has waived it. See id.

       The second claim identified by Appellant’s counsel is that trial counsel

was biased because he was a friend of the victim’s family. Anders/Santiago

Brief at 15.     Appellant’s counsel asserted that Appellant learned that the

victim’s family made statements on Facebook that Appellant’s trial counsel

was a family friend. Id. at 16. Appellant’s counsel noted that at the plea

hearing, trial counsel stated that he represented the victim’s brother-in-law

and spouse in 1997, and on “minor things subsequently.”            Id. at 15.6

According to Appellant’s counsel, trial counsel reiterated that “he had not had

any discussions with [the victim’s family] since he commenced his

representation of Appellant, except for one of their children saying hello to

him in the court house two or three weeks prior.” Id. at 16. “Trial counsel

did not even recognize this person and only learned who it was by asking a

third party.” Id. Appellant’s counsel further noted that Appellant, in response

to the trial court’s query, agreed that trial counsel’s ability to represent

Appellant had not been compromised. Id.




____________________________________________


6The plea hearing transcript states that Appellant’s trial counsel believed that
he last represented the victim’s brother-in-law in 2009. N.T. Plea, 3/15/18,
at 11.


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      The Pennsylvania Supreme Court has stated the following: “To establish

that an actual conflict of interest burdens counsel, an appellant must show

that counsel actively represented conflicting interests, and the actual conflict

adversely affected counsel’s performance.” Commonwealth v. Padilla, 80

A.3d 1238, 1248 (Pa. 2013) (quotation marks, brackets, and citations

omitted). Here, Appellant’s trial counsel last represented the victim’s brother-

in-law in 2009—nine years before Appellant’s representation. See N.T. Plea

at 11. We agree with Appellant’s counsel that this issue is frivolous because

Appellant did not establish trial counsel’s active representation of conflicting

interests, let alone that any purported conflict negatively impacted trial

counsel’s advocacy. See Padilla, 80 A.3d at 1248.

      Lastly, Appellant’s counsel contends that Appellant should have received

a psychiatric evaluation and never received a mental health evaluation

allegedly ordered by the magisterial district judge after Appellant’s preliminary

arraignment. Anders/Santiago Brief at 17. Appellant’s counsel concludes

that to the extent the issue implicates the validity of Appellant’s plea, he is

not due relief because, among other reasons, he did not challenge the validity

of his plea either at the plea colloquy or in a timely filed post-sentence motion.

Id. We agree. See Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.

Super. 2013) (stating, a “defendant wishing to challenge the voluntariness of

a guilty plea on direct appeal must either object during the plea colloquy or




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file a motion to withdraw the plea within ten days of sentencing. Failure to

employ either measure results in waiver.” (citations omitted)).

      As noted above, we briefly address Appellant’s pro se application for a

writ of coram nobis, which Appellant filed with this Court.           Appellant’s

application asks for relief based on the following:

      1.) [Appellant] petitions this court for such a(n) order, to review
      it’s [sic] ea[r]lier decision to sentence [Appellant] to 30 to 60
      years without a p[]sycological evaluation, of which was deemed
      nec[]essary by the lower magistrate court; but not taken care of
      by Mr. Poole’s private paid attorney, nor this Honorable Court.

      2.) Errors not obvious at the . . . decision [sic] was made to
      sentence [Appellant], are as follows:

            a) error of the common pleas court not ordering [Appellant]
            to be mentally evaluated.

            b) error of [Appellant]’s private paid attorney not raising this
            issue of evaluation to the common pleas court’s attention.

Appellant’s Pro se Appl. for Writ of Coram Nobis, 1/4/19, at 1 (full

capitalization omitted).

      Although there is no indication that Appellant considered his pro se

application a response to counsel’s Anders/Santiago brief, to the extent it

could be construed as such, see generally Commonwealth v. Bennett, 124

A.3d 327, 333-34 (Pa. Super. 2015), it reiterates the issues raised in the

Anders brief, which we have held are frivolous. Moreover, our independent

review of the record does not reveal any additional, non-frivolous issues in

this appeal. See Flowers, 113 A.3d at 1250. Accordingly, we grant counsel’s

petition to withdraw and affirm the judgment of sentence.

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     Petition to withdraw granted. Application to discontinue appeal denied

as moot. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2019




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