J-A19014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH WAYNE BLACK, JR. 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 284 MDA 2022

Appeal from the Judgment of Sentence Entered January 14, 2022

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

No(s): CP-01-CR-0000891-2021

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: AUGUST 18, 2022

Kenneth Wayne Black, Jr. appeals from the aggregate judgment of 

sentence of eighteen to sixty months of imprisonment imposed after he pled 

guilty to driving under the influence (“DUI”)—controlled substance, possession 

of prohibited offensive weapons, and driving under suspension. Appellant’s 

counsel, Christian J. DeFilippo, Esquire, has filed an application 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 affirm the 

judgment of sentence and grant counsel’s application to withdraw.

During his guilty plea colloquy, Appellant acknowledged that on July 3, 

2021, he was driving a motor vehicle in Adams County and was stopped for 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-A19014-22

- 2 -

Vehicle Code violations. He admitted to the Pennsylvania State Police Trooper 

that his license was suspended and that he had used methamphetamine that 

morning. Subsequent safety searches produced a switchblade knife, brass 

knuckles, and methamphetamine. Chemical testing of Appellant’s blood 

revealed the presence of methamphetamine, amphetamine, and a metabolite 

of cocaine. See N.T. Guilty Plea, 10/13/21, at 11-13. 

Appellant was charged with a bevy of offenses. After selecting a jury, 

Appellant agreed to plead guilty to the above-referenced charges in exchange 

for the dismissal of the rest. The trial court accepted the plea after Appellant 

completed oral and written plea colloquies. Following a presentence 

investigation, Appellant was sentenced as detailed above. He filed no postsentence motion. This timely appeal followed. Both Appellant and the trial 

court complied with Pa.R.A.P. 1925.

In this Court, Appellant’s counsel filed both an Anders brief and a 

petition to withdraw as counsel. The following legal principles guide our 

review:

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.
J-A19014-22

- 3 -

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. 

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

(citations omitted). Our Supreme Court further detailed counsel’s duties as 

follows:

[I]n 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 

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.

Santiago, supra at 361.

Our examination of counsel’s petition to withdraw and Anders brief 

reveals that counsel has complied with the technical requirements set forth 

above. As required by Santiago, counsel set forth the case history, referred 

to an issue that arguably supports the appeal, stated his conclusion that the 

appeal is frivolous, and cited case law which supports that conclusion. See

Anders brief at 5-10. Further, he supplied his brief to Appellant and advised 

him of his right to hire new counsel or proceed pro se in this Court.1 Hence, 

we proceed “‘to make a full examination of the proceedings and make an 

____________________________________________

1 Appellant did not file a response to counsel’s petition. 
J-A19014-22

- 4 -

independent judgment to decide whether the appeal is in fact wholly 

frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 

2015) (quoting Santiago, supra at 354 n.5).

The issue of arguable merit identified by counsel is that Appellant 

“received ineffective assistance of counsel at the time he entered his plea and 

was [s]entenced.” Appellant’s brief at 4. Counsel asserts that Appellant 

believes that his counsel was ineffective in causing him to enter an unknowing 

and unintelligent guilty plea. However, as counsel observes, our Supreme 

Court has ruled that, “absent [specific circumstances not present here], claims 

of ineffective assistance of counsel are to be deferred to PCRA 

review; . . . such claims should not be reviewed upon direct appeal.” 

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). See Anders brief 

at 8-9. Accordingly, raising such a claim in this appeal would be frivolous. 

See Commonwealth v. Tukhi, 149 A.3d 881, 889 (Pa.Super. 2016)

(“Appellant's ineffectiveness claims are frivolous as raised on direct appeal.”).

Furthermore, our “simple review of the record to ascertain if there 

appear[s] on its face to be arguably meritorious issues that counsel, 

intentionally or not, missed or misstated[,]” has revealed no additional issues 

counsel failed to address.2 Commonwealth v. Dempster, 187 A.3d 266, 

____________________________________________

2 We have conducted our review cognizant of the fact that “upon entry of a 

guilty plea, a defendant waives all claims and defenses other than those 

sounding in the jurisdiction of the court, the validity of the plea, and what has 

(Footnote Continued Next Page)
J-A19014-22

- 5 -

272 (Pa.Super. 2018) (en banc). Accordingly, we affirm the judgment of 

sentence and grant counsel’s petition to withdraw.

Application of Christian J. DeFilippo, Esquire, to withdraw as counsel is 

granted. Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/18/2022

____________________________________________

been termed the ‘legality’ of the sentence imposed.” Commonwealth v. 

Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). Since Appellant did not object 

during the plea colloquy or file a motion to withdraw his guilty plea in the trial 

court prior to filing this appeal, Appellant waived his right to challenge the 

validity of his plea herein. See Commonwealth v. Lincoln, 72 A.3d 606, 

609–10 (Pa.Super. 2013) (“A defendant wishing to challenge the 

voluntariness of a guilty plea on direct appeal must either object during the 

plea colloquy or file a motion to withdraw the plea within ten days of 

sentencing.”). Consequently, attempting to do so would be frivolous. See 

Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa.Super. 2016) (“An issue

that is waived is frivolous.”).