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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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-25-CR-0001967-2011 

BEFORE: DONOHUE, OLSON AND PLATT,* JJ. 

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014 

Appellant, Dorian Carl Eady, appeals from the judgment 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, Appellant’s courtappointed counsel has filed both a petition to withdraw 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 conclude that Appellant’s counsel has complied with 

the procedural requirements necessary to withdraw. Furthermore, after 

independently reviewing the record, we conclude that the appeal is wholly 

frivolous. We therefore grant counsel’s petition to withdraw and affirm the 

judgment of sentence. 
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The factual background of this case is as follows. At approximately 

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 had been robbed and 

needed to use her phone. She let him in the house and 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 no 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 living 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 into the living room and 

told Appellant that he had to leave the house immediately. 

Appellant pushed A.D., while she was holding her ten-month-old son, 

into a recliner. Appellant grabbed her throat and threatened 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. Appellant followed A.D. 

into her bedroom and pushed her down on the bed. He continued choking 

and slapping 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 out his penis while 

straddling her. He thrust his penis near A.D.’s vagina and attempted to pull 

down her pants. Appellant’s four-year-old daughter spit on Appellant which 

permitted A.D. to escape to her living room. Appellant pursued her and 
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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 the house. At that 

point, Appellant left the house. 

The procedural history of this case is as follows. On June 9, 2011, 

Appellant was charged via criminal complaint with indecent assault,1

indecent exposure,2 and simple assault.3 A criminal information charging 

those same offenses was filed on August 25, 2011. On January 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 11, 2012, this Court 

dismissed the appeal for failure to file a docketing statement 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 pursuant to the 

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel 

was appointed and filed an amended petition. On September 13, 2013, the 

PCRA court granted Appellant’s petition and reinstated his right 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). 
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2013, Appellant filed a post-sentence motion. On January 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 required 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 preliminary 

hearing? 

4. Did Appellant’s preliminary hearing counsel render ineffective 

assistance? 

 

4

 On February 5, 2014, the trial court ordered Appellant 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 pursuant 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. 
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5. Did Appellant’s trial counsel render ineffective assistance?

6. Did Appellant’s direct appeal counsel render ineffective 

assistance? 

7. Did Appellant’s PCRA counsel render ineffective assistance?

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 procedural 

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 for leave to withdraw 

and state that after making a conscientious examination of the record, he 

has determined that the appeal is frivolous.” 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 believes 

arguably supports the appeal; 

 

5 Appellant’s issues have been reordered for ease of disposition. 
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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 facts of record, 

controlling case law, and/or statutes on point that have led to 

the conclusion that the appeal is frivolous. 

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014), quoting

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, proceed 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 examination 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 procedural and 

substantive requirements are satisfied that counsel will be permitted to 

withdraw. In the case at bar, counsel has met all of the above procedural 

obligations.6

 We now turn to whether this appeal is wholly frivolous. 

 

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) 
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The first issue raised in counsel’s Anders brief is whether the trial 

court erred by removing the defendant from the courtroom prior to jury 

selection. “Pursuant to Article I, § 9 of the Pennsylvania Constitution, and 

the Sixth Amendment of the federal constitution as applied to the states via 

the Fourteenth Amendment due process clause, defendants have 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 constitutional 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 the jury[.]”). “However, like the [Supreme Court of the United 

States, our Supreme] Court has recognized that the right 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]hen a defendant is abusive 

and disruptive to the proceedings, the trial judge does not abuse his 

discretion in having him removed from the courtroom.” Commonwealth v. 

(Footnote Continued) _______________________ 

states that Appellant pled guilty instead of being found guilty. However, in 

his Anders brief counsel makes clear that Appellant proceeded to trial. It is 

evident that the inaccuracy in counsel’s petition to withdraw was a mere 

oversight and we therefore decline to find that counsel’s petition to withdraw

does not satisfy the procedural requirements for withdrawal. 
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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 eve of trial, 

Appellant obtained private counsel and his trial was continued until January 

2012. On January 25, 2012, the day his trial was scheduled to begin, 

Appellant attempted to fire his privately retained counsel because he refused 

to file patently frivolous motions. For example, Appellant asked counsel to 

file a motion demanding that only African-Americans be included in the 

venire. The trial court was notified of this development and attempted to 

engage in a colloquy with Appellant to determine whether 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 are 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 Appellant 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 Appellant’s request to fire his attorney. 
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asked again if he planned on behaving Appellant stated, “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 selected 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 the 

trial court it couldn’t proceed without him. See id. at 36-37. Finally, the 

trial court ordered Appellant removed from the courtroom. 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 that: 

In [its] view, when [it] asked [Appellant] if he’d sit 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 abuse of 

discretion. To the contrary, the trial court gave Appellant every chance it 

could to remain in the courtroom for jury selection. Even after having 

Appellant removed from the courtroom, the trial court made it clear that 
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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 belligerently and refused to 

comply with the trial court’s lawful orders. Any argument that the trial 

court’s actions constituted an abuse of discretion is frivolous.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 Appellant wished to 

challenge the denial of pre-trial bail, he was required to do so prior to trial. 

At this stage in the proceedings, even if the trial court did err by not 

granting pre-trial bail there is no relief that can be granted. As a moot issue 

is frivolous, the second issue raised in counsel’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 over for court, 

failure to furnish an affidavit of probable cause is moot. Commonwealth v. 

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

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

The fourth issue contained within counsel’s Anders brief is whether 

Appellant’s sentence is excessive. This issue challenges the discretionary 

 

8

 We note that the trial court exercised an immense amount 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 crafting an 

appropriate sentence. See id. 
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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]entencing is a matter vested 

in the sound discretion of the sentencing judge, and a sentence will not be 

disturbed on appeal absent a manifest abuse of discretion.” 

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

denied, 85 A.3d 481 (Pa. 2014) (citation omitted). As Appellant 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 unreasonable[.]” 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 automatic right to 

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. 

§ 9781(b). Instead, Appellant must petition this Court for permission 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) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; 

(2) whether the issue was properly preserved at sentencing 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 question that the 

sentence appealed from is not appropriate under the Sentencing 

Code, 42 Pa.C.S.A. [§] 9781(b). 

 
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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 of Appellate 

Procedure 2119(f). We now turn to whether the appeal presents a 

substantial question. 

“In order to establish a substantial question, the appellant must show 

actions by the trial court inconsistent with the Sentencing Code or contrary 

to the fundamental norms underlying the sentencing process.” 

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

denied, 83 A.3d 415 (Pa. 2014). “The determination of whether a particular 

issue raises a substantial question is to be evaluated on a case-by-case 

basis.” Id. 

 Appellant contends that this appeal raises a substantial question 

because the trial court failed to give meaningful consideration to his status 

as an upstanding member of society and his status as the sole supporter for 

his children. This Court has previously held that “an allegation that the 

sentencing court did not consider certain mitigating factors 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 question 
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as to whether his sentence is appropriate under the Sentencing 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 application of the 

guidelines was unreasonable. Appellant committed a serious, violent offense 

against a former lover. He lied to gain entry to her 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 in 

committing far more serious offenses. Even after A.D. was 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 sentencing factors and 

concluded that a guideline sentence was appropriate. Thus, any challenge to 

the discretionary 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 charging 

documents were filed in this matter. However, as noted above a criminal 
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complaint and criminal information were filed in this case. Thus, proper 

formal charging documents were filed to initiate the charges against 

Appellant. 

 In his third issue, Appellant alleges that he was denied the right to 

counsel at his preliminary hearing. However, the record reflects that 

Appellant was represented by counsel at the preliminary hearing. Although 

Appellant was also removed from the preliminary hearing for causing a 

disruption, his counsel was present for the entirety of the proceeding. Thus, 

Appellant’s third issue on appeal is frivolous. 

Appellant’s fourth through eighth issues relate to the alleged 

ineffectiveness of counsel. Counsels’ alleged ineffectiveness 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 counsel’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 of the entire record,9

 we 

conclude that no other issue of arguable merit exists. Therefore, we will 

 

9

 The entire record, which we have independently reviewed, includes the 

numerous letters sent by Appellant and referenced in his pro se response. 
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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