J. S03009/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JOSEPH DAVID HOWARD, : No. 699 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, January 30, 2015,

in the Court of Common Pleas of Bucks County

Criminal Division at No. CP-09-CR-0006928-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016

Joseph David Howard appeals from the January 30, 2015 judgment of 

sentence after he pled guilty to one count of escape and the trial court 

sentenced him to 7 to 23 months’ incarceration. Lisa Y. Williams, Senior 

Deputy Public Defender, has filed a petition to withdraw, alleging that the 

appeal is frivolous, accompanied by an Anders brief.1 We will grant 

counsel’s withdrawal petition and affirm the judgment of sentence.

The trial court provided the following factual and procedural history:

The following facts are derived from the 

Affidavit of Probable Cause which was incorporated 

into the record at sentencing. In September of 

2014, Appellant was participating in the work release 

program at the Men’s Community Corrections Center 

(“Center”) in Bucks County, Pennsylvania because of 

 

1 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).
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a prior conviction for criminal mischief. On 

September 24, 2014 at approximately 3:45 P.M., 

Appellant clocked out of the Center to attend his 

work placement. Appellant was required to return to 

the Center by 11:30 P.M. that evening. At 

11:35 P.M., an officer paged Appellant because he 

had failed to return to the Center, but the officer did 

not receive any response from Appellant. A 

corrections officer responded to Appellant’s work site 

and Appellant was not present. Appellant was then 

placed on escape status.

On January 30, 2015, Appellant pled guilty to 

one count of escape[Footnote 1] and was sentenced 

to seven to twenty-three months[’] incarceration in 

the Bucks County Correctional Facility. Appellant 

then filed a post-sentence motion to modify and 

reconsider sentence on February 9, 2015. This 

motion was denied on February 13, 2015 and 

Appellant timely filed [a] Notice of Appeal to the 

Superior Court of Pennsylvania.

[Footnote 1] 18 Pa.C.S.A. § 5121(a). 

18 Pa.C.S.A. § 5121(d) provides, “An 

offense under this section is a felony of 

the third degree where the actor was 

under arrest for or detained on a charge 

of felony [or] convicted of a crime.”

Trial court opinion, 4/30/15 at 1-2.

Appellant raises one issue for our review:

A. WHETHER THE SENTENCING JUDGE ABUSED 

HIS DISCRETION BY REFUSING TO GIVE 

APPELLANT TIME CREDIT FROM 

SEPTEMBER 26, 2014 THROUGH JANUARY 29, 

2015, WHEN THE APPELLANT WAS BEING 

DETAINED ON BOTH THE PRESENT CASE AND 

ANOTHER CASE IN WHICH APPELLANT WAS 

ALREADY SERVING A SENTENCE?

Appellant’s brief at 4.
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On August 4, 2015, Attorney Williams filed in this court a petition to 

withdraw as counsel and an Anders brief, wherein Attorney Williams states 

that there are no non-frivolous issues preserved for our review.

A request by appointed counsel to withdraw pursuant 

to Anders and Santiago gives rise to certain 

requirements and obligations, for both appointed 

counsel and this Court. Commonwealth v. 

Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 

2015).

These requirements and the significant

protection they provide to an Anders

appellant arise because a criminal 

defendant has a constitutional right to a 

direct appeal and to counsel on that 

appeal. Commonwealth v. Woods, 

939 A.2d 896, 898 (Pa.Super. 2007). 

This Court has summarized these 

requirements as follows:

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 
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pro se or raise additional 

points worthy of the Court’s 

attention.

Woods, 939 A.2d at 898 (citations 

omitted).

There are also requirements as to the 

precise content of an Anders brief:

The Anders brief that

accompanies court-appointed 

counsel’s petition to 

withdraw . . . 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, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed 

counsel has met these obligations, it is then our 

responsibility “to make a full examination of the 

proceedings and make an independent judgment to 

decide whether the appeal is in fact wholly frivolous.” 

Id. at 1248. In so doing, we review not only the 

issues identified by appointed counsel in the Anders

brief, but examine all of the proceedings to “make 

certain that appointed counsel has not overlooked 
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the existence of potentially non-frivolous issues.” 

Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Attorney Williams’ application to withdraw, supporting 

documentation, and Anders brief reveals that she has complied with all of 

the foregoing requirements. We note that counsel also furnished a copy of 

the brief to appellant, advised him of his right to retain new counsel, 

proceed pro se, and/or raise any additional points that he deems worthy of 

this court’s attention, and attached to the Anders petition a copy of the 

letter sent to appellant as required under Commonwealth v. Millisock, 

873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels, 

999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in 

Santiago set forth the new requirements for an Anders brief, which are 

quoted above, the holding did not abrogate the notice requirements set forth 

in Millisock that remain binding legal precedent.”). As Attorney Williams 

has complied with all of the requirements set forth above, we conclude that 

counsel has satisfied the procedural requirements of Anders.

Once counsel has met her 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. Thus, 

we now turn to the merits of appellant’s appeal.
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In his only issue on appeal, appellant avers that he is entitled to time 

credit against his criminal mischief sentence and his escape sentence.

We find this appeal to be wholly frivolous for the reasons discussed in 

the trial court’s thorough and comprehensive opinion. Specifically, 

. . . [a]ppellant was still actively serving a sentence 

in the Men’s Community Corrections Center in Bucks 

County for his prior conviction of criminal mischief at 

the time of his escape on September 24, 2014. 

When [a]ppellant was subsequently arrested on 

September 26, 2014, he was still serving the 

sentence for the criminal mischief conviction. As the 

Superior Court held in [Commonwealth v. Davis, 

852 A.2d 392 (Pa.Super. 2004)], [a]ppellant is not 

entitled to credit against two sentences for the 

pre-sentence confinement. Thus, the time 

[a]ppellant was incarcerated between September 26, 

2014 and January 29, 2015 must be applied to 

[a]ppellant’s original sentence for criminal mischief, 

and not to [a]ppellant’s sentence for escape.

Trial court opinion, 4/30/15 at 5.

Additionally, our independent review of the entire record has not 

disclosed any potentially non-frivolous issues. Therefore, we affirm on the 

basis of the trial court’s April 30, 2015 opinion. Consequently, we grant 

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

Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2016