J-S38022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JASON QUAIL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1874 MDA 2019

Appeal from the Judgment of Sentence Entered July 30, 2019

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0001204-2018

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 4, 2021

Jason Quail appeals the judgment of sentence entered following his 

convictions for Aggravated Indecent Assault-Forceful Compulsion, Indecent 

Assault-Forceful Compulsion, and Simple Assault.

1 Counsel has filed an 

Anders2 brief and a petition to withdraw as counsel. We affirm the judgment 

of sentence and grant counsel’s petition. 

The trial court aptly summarized the facts of this case as follows: 

The victim, -- testified that while pregnant, she awoke at 

midnight on June 3, 2018, to her ex-boyfriend, [Quail], 

angry and screaming. [The victim] testified: “He grabbed 

me behind my neck and threw me onto the bed by my neck 

and I was fighting him and trying to get him off of me and

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3125(a)(2), 3126(a)(2), and 2701(a)(3), respectively. 

2 Anders v. California, 386 U.S. 738 (1967).
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he punched me in the eye and then as he was choking me 

he shoved his hand and started shoving it up my vagina.” 

She graphically detailed that during the assault, [Quail] 

shoved his hand inside her vagina on approximately five 

occasions. She indicated that [Quail] thrust four fingers 

when inserting his hand into her vagina. She testified: “up 

to his wrist,” went inside her vagina, causing her significant 

pain and causing her to urinate herself. She believed 

[Quail’s] rough actions potentially caused a miscarriage. 

After the assault, [the victim] responded to Geisinger 

Medical Center where Officer Richard Bachman interviewed 

[the victim] and photographed her physical injuries. [The 

victim] explained each photograph to the jury, including the 

photographs of popped blood vessels in her neck, eye 

bruising, and marks on her inner thighs as a result of the 

strangulation and assault. Officer Bachman testified that he 

requested [a] female officer to photograph [the victim]

because some bruises were located on [the victim]’s inner 

thighs. Office Bachman corroborated that the photographs 

fairly and accurately depicted [the victim]’s injuries on June 

4, 2018. [The victim] also reported that due to the trauma 

of the strangulation, she suffered laryngitis for 

approximately three (3) days. 

Relative to the injuries that [the victim] suffered, the 

Commonwealth presented witness Carena Kelly, a 

physician’s assistant at Geisinger Medical Center, who 

treated [the victim] on June 4, 2018. Ms. Kelly corroborated 

bruising and injuries to the victim’s inner thighs, neck, and 

forearm. She performed an external and internal vaginal 

exam of [the victim]. The examinations revealed no 

tenderness or injury to the labia or around the vagina. 

Lastly, Ms. Kelly explained that a lack of vaginal injury does 

not preclude the occurrence of a sexual assault.

1925(a) Op., filed 5/5/2020, at 2-3 (citation to record omitted). 

The jury returned guilty verdicts as referenced above and the trial court 

sentenced Quail to an aggregate term of six to 12 years’ incarceration. Quail 

filed a post-sentence motion claiming that his sentence was “excessive and 
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contrary to law.” Motion for Reconsideration of Sentence, filed 8/5/19. The 

trial court denied the motion and Quail filed a timely pro se notice of appeal. 

In this Court, counsel filed an Anders brief and a petition to withdraw 

as counsel. Quail filed a response to counsel’s Anders brief claiming his 

innocence and challenging the credibility of the testimony of the 

Commonwealth’s witnesses, including the victim. See Pro Se Response to 

Anders Brief. Additionally, the trial court filed an opinion concluding that 

Quail’s appellate issue was waived, and even if it was not, it was meritless. 

See 1925(a) Op. at 4-8.

As counsel has filed an Anders brief, we must first address whether 

counsel has satisfied the procedural requirements under Anders. See 

Commonwealth v. Cox, 231 A.3d 1011, 1014 (Pa.Super. 2020). An Anders 

brief is filed “when counsel believes an appeal is frivolous and wishes to 

withdraw from representation[.]” Id. In such a case, 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.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006)

(citation omitted).

Additionally, an Anders brief must: 
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(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). 

If counsel has satisfied these requirements, we then must conduct “a 

full examination of all the proceedings, to decide whether the case is wholly 

frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.Super. 

2018) (en banc) (quoting Anders, 386 U.S. at 744). Should we determine 

that the appeal is wholly frivolous, we may grant counsel’s petition to 

withdraw. However, “if [this Court] finds any of the legal points arguable on 

their merits (and therefore not frivolous) [we] must, prior to decision, afford 

the indigent the assistance of counsel to argue the appeal.” Id. (quoting 

Anders, 386 U.S. at 744). 

Here, counsel has satisfied the procedural requirements of Anders. 

Counsel filed a petition to withdraw concluding that the appeal is meritless; 

filed a brief raising potential issues that might support the appeal; and has 

furnished a copy of the brief to Quail advising him of his right to retain new 

counsel, proceed pro se, or raise additional issues that he deems worthy of 

our attention. 
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Counsel’s Anders brief is also satisfactory. The Anders brief contains a 

summary of the procedural history and facts with citations to the record; 

references what counsel believes could arguably support the appeal; and 

provides counsel’s conclusion that the appeal is frivolous and gives reasons 

for such with citations to the record and controlling case law. We now turn to 

whether this appeal is wholly frivolous. 

Counsel has identified in the Anders brief one claim challenging the 

weight of the evidence:

Whether the verdicts of aggravated indecent assaultforceful compulsion and indecent assault-forceful 

compulsion were against the weight of the evidence since 

the medical examination of the complainant performed 

approximately a day and a half later which included both an 

external and internal examination of her labia and vagina 

and vaginal ultrasound did not reveal any injury to her 

vagina or labia despite her testimony that [Quail] had stuck 

his entire hand into her vagina at least 4 or 5 times.

Anders Br. at 4. 

A claim challenging the weight of the evidence must be raised in a post 

sentence motion or at the sentencing hearing. See Pa.R.Crim.P. 607(A)(1)-

(3). Failure to do so results in waiver of the claim. See Commonwealth v. 

Sherwood, 982 A.2d 483, 494 (Pa. 2009) (concluding waiver of weight claim 

where appellant failed to raise issue before trial court pursuant to Pa.R.Crim.P. 

607). 

Here, Quail filed a post-sentence motion challenging the sentence 

imposed by the trial court. He argued, “[T]he [s]entence is excessive and 
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contrary to law.” Motion for Reconsideration at ¶3. However, his post-sentence 

motion did not raise a weight claim, and he did not make any such challenge

at the sentencing hearing. As such, the claim is waived for appellate review.

Sherwood, 982 A.2d at 494. Thus, Quail’s challenge to the weight of the 

evidence is frivolous. Furthermore, upon a review of the full record, we discern 

no non-frivolous issues that Quail could have raised before this Court. 

Therefore, we affirm the judgment of sentence and grant counsel’s petition to 

withdraw. 

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/04/2021