J-S83020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROSE M. FRIEND,

Appellant No. 275 WDA 2016

Appeal from the Judgment of Sentence January 26, 2016

In the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0001432-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Rose M. Friend (“Appellant”) appeals from the judgment of sentence 

entered following her plea of no contest to criminal mischief. Appellate 

counsel has filed a petition to withdraw his representation and a brief 

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a 

withdrawal from representation on direct appeal. We grant counsel’s 

petition to withdraw and affirm the judgment of sentence.

Baden Borough Police Officer Ryan Chimile was dispatched on June 25, 

2015, at approximately 6:00 a.m. to investigate a report of a car on fire. 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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Upon his arrival at 755 Schiller Street, Officer Chimile observed a black Ford 

Mustang in the driveway with heavy burn damage on the passenger side. 

The officer spoke with the owner of the vehicle, William Ewing. While the 

officer and Mr. Ewing were talking, Appellant approached them and asked 

what had happened. Officer Chimile had seen Appellant walking a dog 

approximately 200 yards from the home in the opposite direction when he 

was responding to the call. Mr. Ewing identified Appellant as possibly being 

responsible for the damage to his car. He explained that Appellant was 

staying as a guest at his residence and they had argued earlier in the 

morning. Appellant adamantly denied any suggestion that she was involved 

with or had knowledge of the fire.

The fire officials on scene alerted Officer Chimile to a strong smell of 

gasoline near the Mustang and the back porch. Mr. Ewing noticed that one 

of his gasoline cans was missing from the back porch. Officer Chimile found 

a gasoline can on the wooded hill behind the residence. While fire officials 

reviewed video from the camera Mr. Ewing had placed directly over his 

Mustang and porch, Officer Chimile questioned Appellant, who continued to 

deny any involvement in or knowledge of the fire.

Based on his preliminary investigation, Officer Chimile took Appellant 

into custody for questioning and transported her to the police department. 

In the questioning room, he smelled a strong odor of gasoline emanating 

from Appellant’s person. Appellant was advised of and acknowledged her 
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rights. After further questioning, she eventually told Officer Chimile that she 

may have accidentally started a fire. According to Appellant, she had used 

gasoline to clean paint brushes. She lit one of the brushes on fire with a 

brown lighter, which was found on the back porch of the residence. After 

the paint brush caught fire, Appellant left and proceeded to walk the dog 

away from the home.1

The trial court summarized the procedural history of this case:

On September 14, 2015, the Commonwealth of 

Pennsylvania filed a criminal information against Appellant, Rose 

M. Friend, that included one count of reckless burning or 

exploding of an automobile in violation of 18 Pa. C.S.A. § 

3301(d)(2) (Felony 3), and one count of criminal mischief 

causing pecuniary loss in excess of $5,000, in violation of 18 Pa. 

C.S.A. § 3304(a)(1) (Felony 3). Following a status conference 

on September 24, 2015, the case was listed for jury trial. 

However, on January 15, 2016, Appellant entered a counseled 

plea of no contest to count 2, criminal mischief.

On that same day, this [c]ourt sentenced Appellant to 

between 6 months and 2 years in the Beaver County Jail. 

Following sentence, Appellant and counsel signed a notice of 

rights following sentence and a nolo contendere plea colloquy 

form, which advised Appellant of her right to file an appeal 

within 30 days of imposition of sentence.

On January 25, 2016, Appellant, by her attorney, filed a 

motion to withdraw her plea, averring that she did not commit 

the offense. This [c]ourt denied her motion on January 26, 

2016.

On February 19, 2016, the [c]ourt received notice of 

Appellant’s intent to appeal. On March 1, 2016, this [c]ourt 

ordered Appellant to provide a concise statement of errors 

____________________________________________

1

 Affidavit of Probable Cause, 6/21/15, at 1–2; N.T. Plea, 1/15/16, at 8–10.
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complained of on appeal in accordance with Pennsylvania Rule of 

Appellate Procedure 1925(b) (“Discretion to file statement of 

errors filed of on appeal; instructions to the appellant and the 

trial court.”) On March 17, 2016, counsel for Appellant filed a 

statement of errors, which consisted of the following:

Whether there are any issues of arguable merit that 

could be raised on direct appeal presently before this 

court?

Counsel, finding no merit in Appellant’s claims, submitted [a] 

. . . brief which set forth counsel’s conclusion that the appeal is 

frivolous and his reasons for that position.

Trial Court Opinion, 3/28/16, at 1–2.

As noted, counsel has filed a petition to withdraw from representation 

and an Anders brief. When we receive an Anders brief, we first rule on the 

petition to withdraw and then review the merits of the underlying issues. 

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). 

In addition, “[p]art and parcel of Anders is our Court’s duty to review the 

record to insure no issues of arguable merit have been missed or misstated.” 

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

There are procedural and briefing requirements imposed upon an 

attorney who seeks to withdraw on direct appeal. The procedural mandates 

are that counsel must:

1) petition the court 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.
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Cartrette, 83 A.3d at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within the petition 

to withdraw, counsel averred that he conducted a conscientious review of 

the record and pertinent legal research. Following that review, counsel 

concluded that the present appeal is frivolous. Counsel sent Appellant a 

copy of the Anders brief and the petition to withdraw, as well as a letter, a 

copy of which is attached to the petition to withdraw. In the letter, counsel 

advised Appellant that she could represent herself or that she could retain 

private counsel.

We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide that:

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 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361). Upon 

review, we find that counsel’s brief is compliant with Santiago. We thus 

conclude that the procedural and briefing requirements for withdrawal have 

been met. 
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As Appellant has not filed a response to counsel’s motion to withdraw 

or a pro se brief, we review this appeal based on the discussion contained 

within the Anders brief. Therein, counsel presents the following issue:

I. WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT 

THAT COULD BE RAISED ON DIRECT APPEAL PRESENTLY 

BEFORE THIS COURT?

Anders Brief at 6. 

In answering this question, counsel concludes that there are no issues 

of arguable merit. Specifically, counsel argues that: (1) there is no 

jurisdictional issue, id. at 9; (2) Appellant’s sentence is legal, id. at 10; (3) 

Appellant’s plea was valid, id. at 10–11; and (4) Appellant’s claim of 

innocence is unsubstantiated, id. at 11–12.

Additionally, we have independently reviewed the record in order to 

determine whether there are any non-frivolous issues present in this case. 

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Like 

appellate counsel, we conclude that there are no meritorious issues that 

could be raised on appeal. Thus, we grant Appellant’s counsel permission to 

withdraw, and we affirm the judgment of sentence.

Petition of counsel to withdraw is granted. Judgment of sentence 

affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016