J-S35014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AUGUST SMALLWOOD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2609 EDA 2019

Appeal from the Judgment of Sentence Entered July 7, 2017

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

No(s): CP-51-CR-0006462-2016

BEFORE: BOWES, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED: JANUARY 8, 2021 

August Smallwood appeals from the aggregate judgment of sentence of 

ten to twenty years of incarceration which was imposed after he was convicted 

of rape and related charges. Appellant’s counsel has filed a petition to 

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

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

counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.

In 2014, at the age of seventeen, J.K. (“Victim”) was a runaway living 

on the streets of Philadelphia. N.T., 4/3/17, at 36. She encountered 

Appellant, who offered her shelter in his home in exchange for becoming

Victim’s “pimp.” Id. at 37. Appellant instructed Victim to bring men to 

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* Retired Senior Judge assigned to the Superior Court.
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Appellant’s house, engage in oral and vaginal sex with them, and give all 

proceeds to Appellant. Appellant also took nude photographs of Victim, which 

he posted on Backpage1in order to garner more “dates.” Id. at 41, 77. If 

victim did not make at least $150 dollars a week, Appellant would “smack her” 

in the face. Id. at 43. 

Victim began to fear Appellant after she found a gun and drugs in the

bedroom she shared with him. Id. at 63. She also heard screaming coming 

from another woman inside the house. Id. at 50. Appellant also began to get 

physically violent towards Victim. Victim described an incident where 

Appellant took her down to the basement, removed her clothes, tied her up 

and “whooped” her on her breasts, back and butt with what “felt like a belt.” 

Id. at 50-52. Another time Appellant got “angry” with Victim, so he sliced her 

wrist with a box cutter, an injury which required stitches. Id. at 65, 69-71. 

Finally, Appellant began engaging in nonconsensual sex with Victim. Id. at 

54-55, 58. Eventually, Victim waited until Appellant left the house and fled

“so [that] he wouldn’t slap me.” Id. at 87-88. 

A couple of weeks later, Victim was picked up by the Philadelphia Vice 

Unit during a street operation. Because she was still underage, she was 

brought into headquarters for an interview with members of the Child 

Exploitation Task Force. Id. at 105-08. During the interview, Victim gave the 

authorities Appellant’s first name and described his tattoos. At a second 

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1 Backpage is a website used for prostitution. See N.T., 4/3/17, at 74. 
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interview, Victim identified Appellant’s house and described the location where 

Appellant concealed his gun and drugs. Id. at 110. Police executed a search 

warrant of Appellant’s home, but it had already been cleared out. An arrest 

warrant was issued the same day. After several months of searching, 

authorities located and arrested Appellant in Delaware. 

On April 3, 2017, Appellant waived his right to a jury trial and proceeded 

to a bench trial. The Commonwealth put forth testimony from Victim and 

members of the Child Exploitation Task Force who had interviewed Victim. 

Appellant elected not to testify. The trial court found Appellant guilty of rape, 

promoting the prostitution of minor, photographing sexual acts of a minor, 

unlawful contact with a minor, sexual trafficking of a minor, sexual assault, 

corruption of a minor, possession of an instrument of crime (“PIC”), simple 

assault, and recklessly endangering another person (“REAP”). N.T. 4/3/17, at 

150. Appellant was found not guilty of involuntary deviate sexual intercourse, 

unlawful restraint, involuntary servitude, and false imprisonment. Id.

On July 7, 2017, Appellant appeared for sentencing. After reviewing a 

pre-sentence investigation report and listening to statements by Victim, 

Appellant’s sister, Appellant’s daughter, and Appellant, the court sentenced 

Appellant to an aggregate sentence of ten to twenty years of imprisonment.2 

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2 Appellant received concurrent ten to twenty year sentences of incarceration 

for rape, unlawful contact, trafficking of a minor, and sexual abuse of a minor; 

for promoting prostitution of a minor, Appellant received a concurrent term of 

three and a half to seven years of incarceration; for corruption of the morals 
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Appellant was also advised of his Megan’s law Tier Three lifetime registration 

requirements and his appellate rights. The court specifically informed 

Appellant that if he wished to challenge his sentence or the weight of the 

evidence that he would need to file a post-sentence motion before proceeding 

with his direct appeal. N.T., 7/7/17, at 37-39. Appellant indicated that he 

understood his appellate rights. Id. at 39. However, no post-sentence motion 

or direct appeal was filed.

Instead, Appellant filed a timely pro se petition pursuant to the PostConviction Relief Act (“PCRA”) seeking to reinstate his appellate rights and 

asserting many claims of trial counsel ineffectiveness. Appointed counsel 

sought the reinstatement of Appellant’s direct appeal rights. The PCRA court 

granted the petition and Appellant filed a timely notice of appeal. In lieu of a 

concise statement, Appellant’s counsel filed a statement indicating that he 

intended to file an Anders brief. See Pa.R.A.P. 1925(c)(4). In the statement, 

counsel explained that Appellant wished to challenge the voluntariness of the 

jury trial waiver and sufficiency of the evidence on appeal. Appellant also filed 

several pro se letters indicating that he wished to challenge the sufficiency of 

the evidence on appeal. The trial court did not file an opinion, because the 

trial judge was no longer sitting as a judge in Philadelphia County.

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of a minor, Appellant received a three to seven year term of incarceration that 

ran consecutive to the sentence imposed at the corruption of the morals of 

minor charge; and for simple assault, Appellant received a concurrent 

sentence of one to two years of incarceration. The REAP and sexual assault 

convictions merged for purposes of sentencing. 
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In this Court, counsel filed both an Anders brief and a petition to 

withdraw as counsel. Accordingly, the following principles guide our review of 

this matter.

Direct appeal counsel seeking to withdraw under Anders

must file a petition averring that, after a conscientious 

examination of the record, counsel finds the appeal to be wholly 

frivolous. Counsel must also file an Anders brief setting forth 

issues that might arguably support the appeal along with any 

other issues necessary for the effective appellate presentation 

thereof . . . .

Anders counsel must also provide a copy of the Anders 

petition and brief to the appellant, advising the appellant of the 

right to retain new counsel, proceed pro se or raise any additional 

points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions (e.g., 

directing counsel either to comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our own 

review of the appeal to determine if it is wholly frivolous. If the 

appeal is frivolous, we will grant the withdrawal petition and affirm 

the judgment of sentence. However, if there are non-frivolous 

issues, we will deny the petition and remand for the filing of an 

advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007) 

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

in the Anders brief that accompanies court-appointed counsel’s 

petition to withdraw, counsel 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 
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appeal is frivolous. Counsel should articulate the relevant facts of 

record, controlling case law, and/or statues on point that have led 

to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

Based upon our examination of counsel’s petition to withdraw and 

Anders brief, we conclude that counsel has complied with the requirements 

set forth above. Counsel set forth the procedural and factual case history, 

referred to two issues that arguably support the appeal, stated his conclusion 

that the appeal is frivolous, and cited to the record and case law which 

supports that conclusion. See Anders brief at 5-12. Additionally, counsel 

gave Appellant proper notice of his right to immediately proceed pro se or 

retain another attorney.3 See Santiago, supra; Letter, 2/18/2020. 

Accordingly, we proceed to an examination of the issues raised to discern if 

they are frivolous. Commonwealth v. Dempster, 187 A.3d 266, 273 

(Pa.Super. 2018) (en banc).

Counsel identified two issues that arguably support this appeal: 

1. Appellant’s plea counsel forced Appellant into waiving his 

right to a jury trial and, therefore, judgment of sentence 

should be vacated and this matter should be remanded for 

a jury trial.

2. There is insufficient evidence to support Appellant’s 

convictions because Complainant’s testimony was 

inconsistent, uncorroborated, and contradictory and, 

therefore, judgment of sentence should be vacated.

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3 Appellant did not file a response to counsel’s petition.
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Anders brief at 8, 10.

Counsel’s first issue of arguable merit implicates whether trial counsel’s 

performance was constitutionally deficient. Anders brief at 8. However, in 

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013), our Supreme 

Court reaffirmed its holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 

2002), that, absent certain circumstances not present here,4 claims of 

ineffective assistance of counsel are to be deferred until collateral review 

under the PCRA. Accordingly, Appellant’s first claim is frivolous as raised on 

direct appeal. 

Counsel’s second issue of arguable merit questions the sufficiency of the 

evidence to sustain all of Appellant’s convictions. Anders brief at 10. Our 

standard of review when considering a challenge to the sufficiency of the 

evidence is:

[w]hether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

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4

In Holmes, our Supreme Court held that the trial court may address claims 

of ineffectiveness on direct appeal where (1) discrete claims are “apparent 

from the record and meritorious to the extent that immediate consideration 

best serves the interests of justice,” or (2) the defendant seeks to litigate 

prolix claims, there is good cause shown, and review is preceded by the 

defendant’s knowing and express waiver of PCRA review. Commonwealth 

v. Holmes, 79 A.3d at 562, 563-64 (Pa. 2013). 
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inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the finder of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017) 

(citations and quotation marks omitted). 

Appellant’s arguments are not based upon the statutory elements of the 

crimes for which he was convicted, but rather the overall lack of evidence 

corroborating the victim’s testimony. However, it is well-established that “a 

solitary witness’s testimony may establish every element of a crime, assuming 

that it speaks to each element, directly and/or by rational inference.” 

Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa.Super. 2018). 

Accordingly, the Commonwealth is only required to put forth additional 

evidence, where a sole witness’s testimony does not establish every element 

of the crimes charged.

Here, Victim positively identified Appellant as her “pimp.” N.T. 4/3/17, 

at 37. She detailed how he prostituted her, took naked pictures of her, and 

physically and sexually assaulted her, all while she was seventeen years old. 

Id. at 37-103. Accordingly, if believed, Victim’s testimony was sufficient to 

establish that Appellant committed rape, promoting prostitution of a minor, 

photographing a sex act of a child, unlawful contact with a minor, trafficking 
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a minor, sexual assault, corruption of minors, possession of an instrument of 

crime, simple assault, and recklessly endangering another person. No 

additional corroboration was needed. Accordingly, we agree with counsel that 

the second issue of arguable merit is frivolous.5

Further, we have conducted a “full examination of the proceedings” and 

have determined that “the appeal is in fact wholly frivolous.” 

Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since 

our review did not disclose any other arguably meritorious claims, we grant 

counsel’s petition to withdraw and affirm the judgment of sentence. 

Dempster, supra at 273.

Petition of Stephen T. O’Hanlon, Esquire, to withdraw as counsel is 

granted. Judgment of sentence affirmed. 

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5 To the extent that Appellant wishes to also challenge the weight of the 

evidence in this appeal, we note that it is waived for failure to raise it before 

the trial court. See Pa.R.Crim.P. 607(A) (“A claim that the verdict was against 

the weight of the evidence shall be raised with the trial judge in a motion for 

a new trial: (1) orally, on the record, at any time before sentencing; (2) by 

written motion at any time before sentencing; or (3) in a post-sentence 

motion.” Appellant was specifically warned of this requirement at sentencing. 

N.T. 7/7/17, at 39. Therefore, Appellant has waived this issue for failing to 

preserve it. An issue that is waived is frivolous. See Commonwealth v. 

Kalichak, 943 A.2d 285, 291 (Pa.Super. 2008) (holding that when an issue 

has been waived, “pursuing th[e] matter on direct appeal is frivolous”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/8/21