J-S12043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JUAN PONCE MORALES, :

:

Appellant : No. 1097 MDA 2016

Appeal from the Judgment of Sentence June 22, 2016

in the Court of Common Pleas of Lebanon County,

Criminal Division, No(s): CP-38-CR-0000004-2016

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2017

Juan Ponce Morales (“Morales”) appeals from the judgment of 

sentence entered following his convictions of three counts of simple assault, 

two counts of robbery, and one count each of retail theft and criminal 

conspiracy.

1

 The trial court additionally found Morales guilty of the summary 

offense of harassment.2 Counsel for Morales has filed a Petition to Withdraw 

from representation, 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 Morales’s judgment of 

 

1 18 Pa.C.S.A. §§ 3929, 3701(a)(1)(iv), 2701, 903. 

2 18 Pa.C.S.A. § 2709.
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sentence.3

On December 4, 2015, Nate Roman (“Roman”), a loss-prevention 

officer for Boscov’s department store in Lebanon County, confronted Morales 

and his co-conspirator, Deborah Rodriguez, as they attempted to steal three 

Calvin Klein leather jackets, with a combined value of $299.97. When 

confronted, Morales threatened Roman with a knife, and beat Roman. 

On May 5, 2016, following a jury trial, Morales was found guilty of the 

above-described offenses. Following the preparation of a pre-sentence 

investigation report, the trial court sentenced Morales to an aggregate prison 

term of three to twelve years. Thereafter, Morales filed the instant timely 

appeal. The trial court ordered Morales to file a Pa.R.A.P. 1925(b) concise 

statement of matters complained of on appeal. Counsel for Morales instead 

filed a Statement of Errors asserting that there are no non-frivolous issues 

that could be raised on appeal, and stating his intention to withdraw 

pursuant to Anders,. 

Initially, we may not address the merits of issues raised on appeal 

without first reviewing the request to withdraw. Commonwealth v. Rojas, 

874 A.2d 638, 639 (Pa. Super. 2005). Therefore, we review counsel’s 

Petition at the outset. Our Supreme Court’s decision in Santiago did not 

 

3 Morales additionally has filed a Motion for the appointment of substitute 

counsel. We deny the Motion. See Commonwealth v. Millisock, 873 A.2d 

748, 752 (Pa. Super. Ct. 2005) (upon the withdrawal of appointed counsel 

pursuant to Anders, an appellant is entitled only to retain new counsel, or 

to proceed pro se, should he chose to do so). 
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alter the procedural requirements of Anders that counsel must satisfy in 

requesting to withdraw from representation. Counsel must (1) petition for 

leave to withdraw stating that, after making a conscientious examination of 

the record, counsel has determined that the appeal would be frivolous; (2) 

furnish a copy of the brief to the defendant; and (3) advise the defendant 

that he or she has the right to retain private counsel or raise additional 

arguments that the defendant deems worthy of the court’s attention. 

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

Here, counsel’s Petition to Withdraw states that he has reviewed the 

record and concluded that the appeal is frivolous. Additionally, counsel 

notified Morales that he was seeking permission to withdraw, furnished 

Morales with copies of the Petition to Withdraw and Anders brief, and 

advised Morales of his right to retain new counsel or proceed pro se to raise 

any points he believes worthy of this Court’s attention. Accordingly, counsel 

has satisfied the procedural requirements of Anders.

In Santiago, our Supreme Court set forth the requirements for 

counsel’s brief when petitioning to withdraw. The Anders 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
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(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 have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Here, counsel’s brief provides a summary of the history of the case, 

with citations to the record. Counsel does not identify any issues that 

counsel believes could arguably support the appeal. Counsel instead points 

out testimony that could arguably support Morales’s version of the events. 

Anders Brief at 6, 8. Counsel concludes, however, that the jury chose to 

believe the version of events proffered by Roman. Id. at 8. Counsel finally 

states his conclusion that the appeal is frivolous, and cites to relevant case 

law regarding credibility determinations made by the jury. Id. at 8-9. Upon 

review, we conclude that counsel has satisfied the minimal requirements of 

Anders and Santiago. 

Counsel having satisfied the above requirements, we next conduct our 

own review of the proceedings, and “render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). In 

doing so, we note that Morales has filed a pro se appellate brief raising the 

following claims for review:

1. A[n] examination of the jury will prove that [Morales’s] right 

to a fair trial [was] violated when [trial counsel] failed to file a 

verbal motion for mistrial, when [Morales] informed [counsel] of 

the jury seeing [Morales] in handcuffs during [a] trial recess.
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2. [Trial counsel] erred and was ineffective when he never 

challenge[d] the authenticity of the video, which shows 

[Morales] dressed in a gray sweater but upon exiting the store[,] 

was dressed in [a] red shirt.

3. [Morales’s] due process was violated when [the] District 

Attorney withheld evidence [of a] video until trial[,] or never 

disclose[d] [the] video to [Morales] in [the] discovery packet as 

in Brady v. Maryland[, 373 U.S. 83 (1963)].

4. Morales’s due process was violated when[,] with prior 

knowledge of the court of [Morales’s] hearing impediment[, 

Morales] was unable to assist counsel during trial due to the 

court’s failure to provide [Morales] with a translator for the 

hearing [impairment].

5. During trial[, the] jury came back to ask the judge a question 

[as to] whether the jury can find one of the defendants not 

guilty. At that time[, the trial judge] inform[ed] the jury that if 

they find that there was bodily injury[,] the jury must find both 

defendants guilty. During trial, there was no evidence presented 

to support bodily injury[, such] as medical records, [photos] of 

injury or physical evidence to support a bodily injury claim. [The 

trial judge] erred in instructing the jury to find both defendants 

guilty.

Pro Se Brief for Appellant at 4-5 (issues renumbered for ease of disposition, 

emphasis omitted).

Morales’s first two claims assert ineffective assistance of counsel. Id.

at 4-6. However, “as a general rule, a petitioner should wait to raise claims 

of ineffective assistance of trial counsel until collateral review.” 

Commonwealth v. Harris, 114 A.3d 1, 5 (Pa. Super. 2015) (quoting 

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

we deny Morales relief on these claims, without prejudice for Morales to 
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assert his ineffectiveness claims in a timely petition for relief filed pursuant 

to the Post Conviction Relief Act (“PCRA”).4

In his remaining claims, Morales asserts that the Commonwealth 

withheld a video in violation of Brady; the trial court improperly failed to 

offer Morales a translator, as he is hearing impaired; and the trial court 

improperly instructed the jury to find Morales and his co-defendant guilty. 

Pro Se Brief for Appellant at 4-5. In the Argument section of his brief, 

Morales argues only that his appellate counsel rendered ineffective 

assistance by not raising these claims. Id. at 6-7. 

Our review discloses that Morales’s remaining claims were not 

identified in his Pa.R.A.P. 1925(b) Concise Statement or his Amended 

Concise Statement.5 Ordinarily, whenever the trial court orders an appellant 

to file a concise statement of matters complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), the appellant must comply in order to preserve his claims 

for appellate review. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 

1998). In Commonwealth v. Hernandez, 783 A.2d 784 (Pa. Super. 

 

4 See 42 Pa.C.S.A. §§ 9541-9546.

5 On June 28, 2016, the trial court ordered Morales to file a Pa.R.A.P. 

1925(b) concise statement of matters complained of on appeal. On that 

same date, Morales’s trial counsel filed a Statement of Errors, stating that 

counsel considered the appeal frivolous, and indicating that counsel intended 

to file an Anders brief. Statement of Errors, 6/38/16. On August 6, 2016, 

the trial court entered a second Order, requiring counsel to refile a 

statement of errors within 10 days. Counsel complied with the trial court’s 

Order, filing an Amended Statement of Errors. In the Amended Statement 

of Errors, counsel again opined that the appeal is frivolous. Amended 

Statement of Errors, 8/10/16, at 1. Counsel also represented that “[t]here 

are no issues which have been proffered by [Morales].” Id. at 2. 
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2001), however, this Court concluded that Anders requires review of issues 

otherwise waived on appeal. Id. at 787. 

Upon review, we are unable to grant Morales relief on his claims. 

Morales’s pro se brief fails to identify where, in the record, the alleged errors 

took place, or whether the matters were brought to the trial court’s 

attention. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for 

the first time on appeal). More importantly, Morales’s legal argument 

consists solely of an assertion that his appellate counsel rendered ineffective 

assistance, an issue that should be raised in a PCRA Petition. Finally, our 

review confirms the conclusion of Morales’s counsel that there are no nonfrivolous issues that can be raised on appeal. Consequently, we deny 

Morales relief on these claims, without prejudice for Morales to assert his 

ineffectiveness claims in a timely petition for relief filed pursuant to the 

PCRA.

Petition to Withdraw granted. Motion to appoint substitute counsel 

denied. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2017