J-S53023- 14

* Retired Senior Judge assigned to the Superior Court

. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DORIAN EADY, Appellant No. 218 WDA 2014

Appeal from the Judgment of Sentence of March 14 , 2012 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

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- CR -0001967-2011 BEFORE: DONOHUE, OLSON AND PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014 Appellant, Dorian Carl Eady, appeals from the judgme nt of sentence entered on March 14, 2012 as made final by the denial of his post-sentence motion on January 14, 2014. On this direct appeal, A p pellant’s court

appointed counsel has filed both a petition to withdra w as counsel and an accompanying brief pursuant to Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981), and its federal predecessor, Anders v. California , 386 U.S. 738 (1967). We conclu de that Appellant’s counsel has complied with the procedural requirements necessary to withdraw. Furt hermore, after independently reviewing the record, we conclude that t he appeal is wholly frivolous. We therefore grant counsel’s petition to wi thdraw and affirm the judgment of sentence.J-S53023- 14

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The factual background of this case is as follows. At app roximately 2:30 a.m. on June 7, 2011, Appellant began banging on his ex-girlfriend, A.D.’s, window. Appellant informed A.D. that he ha d been robbed and needed to use her phone. She let him in the house an d gave Appellant her cell phone. Appellant then went into A.D.’s bedroom and laid down on her bed. A.D. told him to leave but he protested that n o buses were running and he had nowhere to go. A.D. then told him to go sleep on the couch. Appellant then left the bedroom and went to the liv ing room and laid on the couch. At that time, A.D.’s four -year-old daughter told A.D. that she did not want Appellant in the house. A.D. then went back int o the living room a nd told Appellant that he had to leave the house immedi ately. Appellant pushed A.D., while she was holding her ten-m onth-old son, into a recliner. Appellant grabbed her throat and t hreatened to kill her. He then pressed his fist into A.D.’s face and slapped her. A.D. was able to retreat to her bedroom when Appellant was distracted by A.D.’s four -yearold daughter and two-year-old son slapping him. Appe llant followed A.D. into her bedroom and pushed her down on the bed. He continued choking and slap ping her. He then told A.D. that he wasn’t leaving until he got what he wanted and proceeded to unzip his pants and pull ou t his penis while straddling her. He thrust his penis near A.D.’s vagina and attempted to pull down her pants. Appellant’s four

- ye ar -old daughter spit on Appellant which permitted A.D. to escape to her living room. Appella nt pursued her andJ-S53023- 14

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again pushed her down into the recliner. A.D.’s four -year-old daughter then punched Appellant again which allowed A.D. to escape th e house. At that point, Appellant left the house. The procedural history of this case is as follows. On Jun e 9, 2011, Appellant was charged via criminal complaint with indece nt assault, 1 indecent exposure, 2 and simple assault. 3 A criminal information charging those same offenses was filed on August 25, 2011. On Jan uary 25, 2012, Appellant was found guilty, in absentia , of all three offenses. On March 14, 2012, Appellant was sentenced to an aggregate term of 30 to 60 months’ imprisonment. Appellant timely appealed. On June 1 1, 2012, this Court dismissed the appeal for failure to file a docketing sta tement pursuant to Pennsylvania Rule of Appellate Procedure 3517. Commonwealth v. Eady , 646 WDA 2012 (Pa. Super. June 11, 2012) ( per curiam ). On September 21, 2012, Appellant filed a petition p ursuant to the

Post- Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 -9546. Counsel was appointed and filed an amended petition. On Sep tember 13, 2013, the PCRA court granted Appellant’s petition and reinstated his ri ght to file a post-sentence motion and direct appeal nunc pro tunc . On September 23,

1 18 Pa.C.S.A. § 3126(a)(1).

2 18 Pa.C.S.A. § 3127(a).

3 18 Pa.C.S.A. § 2701(a)(1).J-S53023- 14

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2013, Appellant filed a post-sentence motion. On Janu ary 8, 2014, the trial court denied Appellant’s post -sentence motion. This timely appeal followed. 4 Appellant ’s counsel raises four issues in his Anders brief:

1. Did the [trial] court err when it, Appellant claims, failed to permit him to participate in [the] jury selection in his case?

2. Did the [trial] court err when, Appellant argues, the [trial] court failed to set bail for him during the pretrial stages of this case?

3. Should this case have been dismissed because no affidavit of probable cause [was ever filed or presented]?

4. Was the sentence in this case manifestly excessive and clearly unreasonable, and not individualized as requir ed by [law?]

Anders Brief at 8 (complete capitalization removed).

In his pro se response to counsel’s Anders brief, Appellant raises eight

issues:

1. [Was Appellant improperly denied bail prior to trial ?

2. Were proper charging documents filed to initiate this criminal case?

3. Was Appellant denied the right to counsel at his prelim inary hearing?

4. Did Appellant’s preliminary hearing counsel render in effective assistance?

4 On February 5, 2014, the trial court ordered Appella nt to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On February 24, 2014, Appellant’s counsel filed a notice p ursuant to Pennsylvania Rule of Appellate Procedure 1925(c)(4) of his intent to file an Anders brief. In light of that notice, the trial court did not issue a Rule 1925(a) opinion.J-S53023- 14

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5. Did Appellant’s trial counsel render ineffective assista nce?

6. Did Appellant’s direct appeal counsel render ineffective assistance?

7. Did Appellant’s PCRA counsel render ineffective assista nce?

8. Did Appellant’s post -trial motion counsel render ineffective assistance?] See generally Appellant’s Response. 5 Before reviewing the merits of this appeal, this Court must first determine whether counsel has fulfilled the necessary pro cedural requirements for withdrawing as counsel. See Commonwealth v.

Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) ( en banc ). To withdraw

under Anders , court-appointed counsel must satisfy certain technical requirements. First, counsel must “petition the court fo r leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolou s.” Commonwealth v.

Martuscelli , 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel: (1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel bel ieves arguably supports the appeal;

5 Appellant’s issues have been reordered for ease of disposition.J-S53023- 14

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(3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state[s] counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant fact s of record, controlling case law, and/or statutes on point that hav e led to the conclusion that the appeal is frivolous.

Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014), quo ting Santiago , 978 A.2d at 361. Finally, counsel must furnish a copy of the Anders brief to his client and “advise[] him of his right to retain new counsel, pr oceed pro se [,] or raise any additional points that he deems worthy of the court’s attention, and attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels , 999 A.2d 590, 594 (Pa. Super. 2010) (citation omitted). If counsel meets all of the above obligations, “it then becomes the responsibility of the reviewing court to make a full e xamination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Santiago , 978 A.2d at 355 n.5, quoting

McClendon , 434 A.2d at 1187. It is only when both the procedu ral and substantive requirements are satisfied that counsel will be permitted to

withdraw. In the case at bar, counsel has met all of the above pr ocedural obligations. 6 We now turn to whether this appeal is wholly frivolo us.

6 In his response, Appellant notes that counsel’s petition to withdraw as counsel contains a factual inaccuracy. In his petition to withdraw, counsel (Footnote Continued Next Page)J-S53023- 14

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The first issue raised in counsel’s An ders brief is whether the trial court erred by removing the defendant from the courtr oom prior to jury selection. “Pursuant to Article I, § 9 of the Pennsylva nia Constitution, and the Sixth Amendment of the federal constitution as app lied to the states vi a the Fourteenth Amendment due process clause, defendants h ave the right to be present during their criminal trial.” Commonwealth v. Kelly , 78 A.3d 1136, 1141 (Pa. Super. 2013), appeal denied , 91 A.3d 161 (Pa. 2014) (citations omitted); see Gomez v. United States , 490 U.S. 858, 873 (1989) (citation omitted) (defendants have a constituti onal right to be present during jury selection); see also Pa.R.Crim.P. 602(A) (“ The defendant shall be present at every stage of the trial including the impaneling of t he jury[.]”). “However, like the [Supreme Court of t he United States, our Supreme] Court has recognized that the rig ht to be present in the courtroom during one’s [non

- capital] trial is not absolute.” Commonwealth v. Hunsberger , 58 A.3d 32, 38 (Pa. 2012)

. “Our Supreme Court has [] addressed the issue of removal of a disruptive criminal defendant from trial. . . . [W]he n a defendant is abusive and disruptive to the proceedings, the trial judge doe s not abuse his discretion in having him removed from th e courtroom.” Commonwealth v. (Footnote Continued) _______________________ states that Appellant pled guilty instead of being fou nd guilty. However, in his Anders brief counsel makes clear that Appellant proceeded to t rial. It is evident that the inaccuracy in counsel’s petition to wit hdraw was a mere oversight and we therefore decline to find that counsel ’s petition to withdraw does not satisfy the procedural requirements for withdr awal.J-S53023- 14

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Thomas , 879 A.2d 246, 254

– 255 (Pa. Super. 2005), appeal denied , 989 A.2d 917 (Pa. 2010) (citation omitted). The record reflects that in November 2011, on the ev e of trial, Appellant obtained private counsel and his trial was co ntinued until January 2012. On January 25, 2012, the day his trial was sched uled to begin, Appellant attempted to fire his privately retained co unsel because he refused to file patently frivolous motions. For example, Ap pellant asked counsel to file a motion demanding that only African-Americans be included in the venire. The trial court was notified of this developm ent and attempted to engage in a colloquy with Appellant to determine whe ther to permit him to proceed pro se

. See Commonwealth v. Cooper , 27 A.3d 994, 1001-1002 (Pa. 2011). 7 By this time Appellant was yelling “You can’t do that. You can’t do that. And I refused to participate in your trial.” N.T., 1/25/12, at 34. He continued. “It’s illegal constitution[ally.]” Id. The trial court asked if Appellant was “going to sit here and participate or ar e you going to act up?”

Id. Appellant shouted, “[Trial counsel]’s been fired. I’ll say it for the record again, you’re fired[.]” Id. at 34-35. The trial court then asked again, “We’re going to bring the jury in. Are you going to behave?” Id. at 35. Appellant responded “Sir, I’m not participating, sir, in this trial.” Id. When

7 The trial court never finished the colloquy because App ellant refused to answer the questions being posed by the trial court. See N.T., 1/25/12, at 45 -46. Thus, the trial court denied Appe llant’s request to fire his attorney.J-S53023- 14

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asked again if he planned on behaving Appellant state d, “I’m not participating in the trial.” N.T., 1/25/12, at 35. The trial court then warned that if Appellant did not behave, a jury would be se lected without Appellant being present. See id. at 36. Appellant responded by stating, “Go right ahead.” Id. The trial court gave Appellant one last chance and asked him again if he were going to

behave. See id. Appellant continued to cause a disturbance by telling th e trial court it couldn’t proceed without him. See id. at 36-37. Finally, the trial court ordered Appellant removed from the courtr oom. Id. at 37. The trial court informed Appellant that if he changed his mind and wanted to behave himself he could inform the courtroom deputies and he would be permitted to return to the courtroom. Id. at 37-38. Prior to the commencement of jury selection, the trial court found t hat: In [its] view, when [it] asked [Appellant] if he’d s it quiet and cooperate in jury selection, he indicated

– through his obstreperous behavior he answered that in the negative , and [the trial court] made it plain to [Appellant] . . . any time that [he] says to the deputy he’s prepared to come down here , follow the rules of decorum[,] and participate, he’s invited back to the courtroom. N.T., 1/25/12, at 45.

We conclude that the trial court’s actions were not an ab use o f discretion. To the contrary, the trial court gave App ellant every chance it could to remain in the courtroom for jury selection. E ven after having Appellant removed from the courtroom, the trial court made it clear thatJ-S53023- 14

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Appellant was free to return and participate in jury selection if he agreed to behave himself. Instead, Appellant chose to act bellig erently and refused to comply with the trial court’s lawful orders. Any argum ent that the trial

court’s actions constituted an abuse of discretion is fri volous. 8

The second issue contained within counsel’s Anders brief is whether the trial court erred by not granting bail prior to trial. This issue is moot as Appellant has been convicted and sentenced. If Appella nt wished to challenge the denial of pre-trial bail, he was requir ed to do so prior to trial. At this stage in the proceedings, even if the trial cou rt did err by not granting pre-trial bail there is no relief that can b e granted. As a moot issue is frivolous, the second issue raised in couns el’s Anders brief is frivolous.

The third issue contained within counsel’s Anders brief is whether the trial court erred by not dismissing the case for failure to file an affidavit of probable cause. However, once charges have been held ov er for court, failure to furnish an affidavit of probable cause is mo ot. Commonwealth v.

Chamberlain , 30 A.3d 381, 423 (Pa. 2011) (citation omitted). T hus, the

third issue raised in counsel’s Anders brief is frivolous.

The fourth issue contained within counsel’s An ders brief is whether Appellant’s sentence is excessive. This issue challenges t he discretionary

8 We note that the trial court exercised an immense amou nt of restraint in declining to hold Appellant in criminal contempt of court. See N.T., 3/14/12, at 5. Furthermore, the trial court exercised restraint by not considering Appellant’s behavior throughout the proceedings when cr afting an appropriate sentence. See id.J-S53023- 14

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aspects of Appellant’s sentence. See Commonwealth v. Disalvo , 70 A.3d 900, 902 (Pa. Super. 2013). “We note that “[s]entenci ng is a matter vested in the sound discretion of the sentencing judge, and a se ntence will not be disturbed on appeal absent a manifest abuse of discretio n.”

Commonwealth v. Clarke , 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied , 85 A.3d 481 (Pa. 2014) (citation omitted). As Appe llant was sentenced within the standard range of the guidelines, we may only vacate

his sentence if we find this “ case involves circumstances where the application of the guidelines would be clearly unreason able[.]” 42 Pa.C.S.A. § 9781(c)(2); see Commonwealth v. Dodge , 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied , 91 A.3d 161 (Pa. 2014). Pursuant to statute, Appellant does not have an automa tic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permi ssion to appeal the discretionary aspects of his sentence. Id. As this Court has explained: To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whethe r appellant has filed a timely notice of appeal, Pa.R.A .P. 902, 903; (2) whether the issue was properly preserved at sentenci ng or in a motion to reconsider and modify sentence, 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 questio n that the sentence appealed from is not appropriate under the Se ntencing Code, 42 Pa.C.S.A. [§] 9781(b).J-S53023- 14

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Commonwealth v. Cook , 941 A.2d 7, 11 (Pa. Super. 2007) (citation omitted). Appellant filed a timely notice of appeal and properly preserved the issue for our review in his post- sentence motion. Counsel’s Anders brief also contains a statement pursuant to Pennsylvania Rule o f Appellate Procedure 2119(f). We now turn to whether the appea l presents a substantial question. “In order to establish a substantial question, the appell ant must show actions by the trial court inconsistent with the Sentenc ing Code or contrary to the fundamental norms underlying the sentencing pro cess.”

Commonwealth v. Williams , 69 A.3d 735, 740 (Pa. Super. 2013), appeal

denied , 83 A.3d 415 (Pa. 2014). “The determination of whe ther a particular issue raises a substantial question is to be evaluated o n a case- by -case basis.” Id. Appellant contends that this appeal raises a substantia l question because the trial court failed to give meaningful consid eration to his status as an upstanding member of society and his status as the so le supporter for his children. This Court has previously held that “an al legation that the sentencing court did not consider certain mitigating fact ors does not raise a substantial question.” Commonwealth v. McNabb , 819 A.2d 54, 57 (Pa. Super. 2003), citing Commonwealth v. Archer , 722 A.2d 203 (Pa. Super. 1998) ( en banc ). Because Appellant has not identified a substantial questionJ-S53023- 14

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as to whether his sentence is appropriate under the Sen tencing Code and consistent with fundamental norms of sentencing, he is not entitled to relief. Furthermore, even if Appellant raised a substantial question, we fail to see how this case involves circumstances in which the appli cation of the guidelines was unreasonable. Appellant committed a ser ious, violent offense against a former lover. He lied to gain entry to h er house and proceeded to assault A.D. He attempted to sexually assault A.D. in the presence of her four-year-old daughter and two-year-old son. If it were not for the actions

of A.D.’s four -year-old daughter, Appellant may have been successful i n committing far more serious offenses. Even after A.D. w as able to escape from the attempted sexual assault, Appellant continued to physically assault her. Again, if it were not for the actions of Appellant’s four -year-old daughter, the outcome of this case could have been even more tragic. The trial court carefully weighed all of the relevant sent encing factors and concluded that a guideline sentence was appropriate. T hus, any challenge to

the di scretionary aspects of Appellant’s sentence is frivolous. Next, we address the issues presented in Appellant’s pro se response to counsel’s Anders brief. As to Appellant’s first issue on appeal, as we noted above, the failure to set bail prior to trial is moot since Appellant has

been convicted and sentenced. In his second issue, Appellant claims that no formal char ging documents were filed in this matter. However, as note d above a criminalJ-S53023- 14

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complaint and criminal information were filed in this case. Thus, proper formal charging documents were filed to initiate the ch arges against Appellant. In his third issue, Appellant alleges that he was denie d the right to counsel at his preliminary hearing. However, the reco rd reflects that Appellant was represented by counsel at the preliminary hearing. Although Appellant was also removed from the preliminary heari ng for causing a disruption, his counsel was present for the entirety of t he proceeding. Thus, Appellant’s third issue on appeal is frivolous. Ap pellant’s fourth through eighth issues relate to the a lleged ineffectiveness of counsel. Counsels’ alleged ineffectiven ess may not be raised on direct appeal, and instead must be raised in a PCRA petition.

Commonwealth v. Grant , 813 A.2d 726, 738 (Pa. 2002). As such, Appellant’s ineffectiveness arguments are dismissed without prejudice to his right to raise such claims in a PCRA petition. In sum, we conclude that all four issues raised in counse l’s Anders brief are frivolous. The eight issues raised in Appellant’s response to

counsel’s Anders brief are either frivolous or may not be raised on direct appeal. Furthermore, after an independent review o f the entire record, 9 we conclude that no other issue of arguable merit exists. T herefore, we will

9 The entire record, which we have independently revi ewed, includes the numerous letters sent by Appellant and referenced in hi s pro se response.J-S53023- 14

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grant counsel’s request to withdraw. Having determined that the issues raised on appeal are frivolous, or may not be pursued on direct appeal, we will affirm the judgment of sentence. Application to withdraw as counsel granted. Judgment of sentence

affirmed

.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/26/2014