J. S36042/17

NON
- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :
: JOSEPH BEATTY, : No. 659 EDA 2016

: Appellant :

Appeal from the Judgm ent of Sentence, January 26, 2016, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0004022

- 2015

BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 31, 2018
Joseph Beatty appeals from the January 26, 2016 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County
following his conviction in a bench trial of aggravated assault and terroristic

threats. 1 The trial court sentenced appellant to 4 years and 6 mont hs to

12 years of incarceration, followed by 3 years of probation, on the
aggravated assault conviction; and a concurrent 1 year of probation on the
terroristic threats conviction. Shawn K. Page, Esq., has filed an Anders

brief, 2 with an accompanying peti tion, alleging that the appeal is frivolous

1 18 Pa.C.S.A. §§ 2702(a)(1) and 2706(a)(1), respectively.

2 See A nders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon , 495 434 A.2d 1185 (Pa. 1981).J. S36042/17

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and including a request to withdraw. After careful review, we grant

counsel ’ s petition to withdraw and affirm the judgment of sentence.
We previously set forth the following:

The record reflects that appellan t ’ s convictions stemmed from an incident that occurred on February 26, 2015. That evening, the victim, who was then “ Islamically [sic] married ” to appellant, was speaking on the phone with a male friend when appellant became “ irate saying this [is] his ho use, [the victim is] his wife, nobody ’ s coming in here. ” (Notes of testimony, 11/18/15 at 6, 10, 11.) As the victim sat on a bed, appellant took the pillow off of the bed, got on top of the victim, placed the pillow over the victim ’ s face, and called her “ about a hundred and one bitches. ” ( Id. at 12

- 13.) Appellant then began choking the victim with one hand and striking her with the other. ( Id. at 13.) While he did so, appellant told the victim that “ if he can ’ t have [her], no one else will. ” ( Id. at 35.) The victim testified that she believes that appellant also kicked her repeatedly, but that everything became a blur and that she was not certain as to whether she passed out, but that she does remember the police arriving, putting her in an ambulanc e, and taking her to the hospital. ( Id. at 15

- 16.) The record reflects that at some point during this ordeal, the victim was able to call 911. ( Id. at 29

- 30.)

At trial, the parties stipulated that the victim
was “ intubated, underwent a multitude of x

- rays and CAT scans, ” and that her injuries included “ closed head trauma, facial lacerations and hemorrhaging, left maxillary/periorbital area, ” “ upper jaw, face and eye swelling and hematoma, right mandibular and maxillary swelling and hematoma, ” and “ left nasal bone fracture. ” ( Id. at 63.) As a result of these injuries, the victim was hospitalized for five days. ( Id. )
The record further reflects that following sentencing, appellant filed a timely motion forJ. S36042/17

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- reconsideration of judgment of sentence. On February 9, 2016, the trial court denied the motion.

The tr ial court provided the following procedural history , as follows :
[Appellant] filed a notice of appeal on February 29, 2016. On March 2, 2016, the court issued an order pursuant to Pa.R.A.P. 1925(b) ( “ 1925(b) order ” or

“ the order ” ) directing [appellant] to file a Concise Statement of Errors Complained of on Appeal ( “ Statement ” ) no later than twenty

- one days from the order ’ s date. On March 10, 2016, defense counsel filed a motion to withdraw a s counsel with the trial court. Defense counsel was directed to file the motion with the Superior Court. On March 22, 2016, defense counsel filed a motion to withdraw with the Superior Court. On April 19, 2016, the Superior Court ordered the trial court to decide defense counsel ’ s March 10 th motion to withdraw as counsel without delay. On April 25, 2016, the trial court denied defense counsel ’ s motion to withdraw as counsel. [Appellant] failed to file a Statement by March 23, 2016, pursuant to the cour t ’ s March 2, 2016 order. Nor did [appellant] file a motion for extension of time during this period. To date, no such statement has been filed.

Trial court opinion, 6/30/16 at 1

- 2 (footnotes omitted).

The record further reflects that the trial court f iled an opinion on June 30, 2016, wherein it concluded that appellant waived all issues on appeal for failure to comply with Pa.R.A.P. 1925(b). ( Id. at 2.) On December 14, 2016, Attorney Page filed in this court an Anders brief, without an accompanying p etition, wherein counsel states that, after aJ. S36042/17

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- conscientious review of the record, he determined that an appeal is wholly frivolous.

Commonwealth v. Beatty , No. 659 EDA 2016, unpublished memorandum

at * 2

- 4 ( Pa.Super. filed June 14, 2017) (brackets in ori ginal).
Although Attorney Page never filed a notice of intent to file an Anders

brief with the trial court, 3 we excused this procedural misstep and reviewed

his request to withdraw. Our review revealed that Attorney Page ’ s Anders
brief failed to comply w ith the technical requirements related to withdrawal
of representation. As such, we remanded with instructions. See id. In

accordance with our remand instructions, on July 14, 2017, Attorney Page

filed an Anders brief, together with a petition to withdr aw. We will , therefore, review Attorney Page ’ s July 14, 2017 request to withdraw.

To withdraw under Anders , court

- appointed counsel must satisfy

certain technical requirements. First, counsel must “ petition the court for

3 Pa.R.A.P. 1925(c)(4) provides that:

In a criminal case, counsel may file of record and serve on the judge a statement of intent to file an Anders / McClendon brief in lieu of filing a Statement. If, upon review of the Anders / McClendon brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived ; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or both. Upon remand, the trial court may, but is not required to, replace appellant ’ s counsel.

Pa.R.A.P. 1925(c)(4).J. S36042/17

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leave to withdraw and state that after making a conscientious examination
of the record, he has determined that the appeal is frivolous. ”

Commonwealth v. Martuscelli , 54 A.3d 940, 947 (Pa.Super. 2012),

quoting Santiago , 978 A.2d at 361. Second, counsel must file an Anders

brief, in whi ch counsel:

(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel ’ s conclusion that the appeal is friv olous; and (4) state[s] 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.

Sa ntiago , 978 A.2d at 361. With respect to the briefing requirements,

“ [n]either Anders nor McClendon requires that counsel ’ s brief provide an
argument of any sort, let alone the type of argument that counsel develops

in a merits brief. To repeat, what the brief must provide under Anders are
references to anything in the record that might arguably support the

appeal. ” Santiago , 978 A.2d at 359, 360. Finally, counsel must furnish a
copy of the Anders brief to his client and “ advise[] him of his right to re tain
new counsel, proceed pro se or raise any additional points that he deems
worthy of the court ’ s attention, and attach [] to the Anders petition a copy

of the letter sent to the client. ” Commonwealth v. Daniels , 999 A.2d 590,

594 (Pa.Super. 2010) (cita tion omitted). “ [If] counsel has satisfied the

above requirements, it is then this Court ’ s duty to conduct its own review ofJ. S36042/17

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the trial court ’ s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous. ” Commonw ealth v.

Goodwin , 928 A.2d 287, 291 (Pa.Super. 2007) ( en banc ) (quotation marks

and quotation omitted).

Here, counsel ’ s Anders brief substantially complies with prevailing

law . Attorney Page has provided a procedural and factual summary of the

case with references to the record. ( Anders brief at 3

- 4.) Attorney Page
refers to portions of the record that arguably support the appeal. ( Id. at
unnumbered pages 8

- 9

. ) Attorney Page concludes that “ after making a

conscientious examination of the record[,] he h as determined the appeal
would be wholly frivolous ” and includes his reasons for that determination.

( Id. ) Additionally, Attorney Page ’ s correspondence to appellant provided

appellant with a copy of the Anders brief and advised him of his right to

either retain new counsel or to proceed pro se on appeal to raise any points
he deems worthy of the court ’ s attention. We note that our June 14, 2017
remand order provided appellant with 30 days to respond to Attorney Page ’ s
petition to withdraw and Anders brief . A ppellant did not file a response. 4

A s such, Attorney Page has substantially complied with the procedural
requirements of Anders

. We , therefore , proceed to conduct an independent
review to ascertain whether the appeal is indeed wholly frivolous.

4 We also no te that despite being granted two extensions of time to file its brief, the Commonwealth failed to file a brief by the second due date, which was November 27, 2017.J. S36042/17

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Coun sel raises the following issue in the Anders brief: “ Are there any

non
- frivolous issues preserved for appeal? ” ( Id. at 2.) Counsel then sets

for th conflicting trial testimony elicited from the victim and appellant,
including appellant ’ s testimony in sup port of self

- defense. ( Id. at
unnumbered pages 4

- 5, 9.) Counsel then concludes that the appeal is

frivolous because the trial court , as fact

- finder in appellant ’ s waiver trial , had
the duty to determine the credibility of the testimony and evidence

prese nted at trial and, as such, resolved the conflicting testimony in the

victim ’ s favor

. See , e.g. , Commonwealth v. Talbert , 129 A.3d 536, 544
(Pa.Super. 2013) (reiterating that the fact

- finder passes upon the weight

and credibility of witness testimony and is free to believe all, part, or none of

the evidence ). Although cou nsel advances no argument in the Anders brief

with respect to this credibility issue , we reiterate that neither Anders nor

McClendon require s counsel to set forth an argument; rather , And ers
requires counsel to provide references to anything in the record that might
arguably support the appeal. Santiag o , 978 A.2d at 364

. Counsel has

done so . A fter carefully reviewing the trial transcript, we conclude that it
supports counsel’s assessmen t that because appellant’s convictions resulted

from the fact

- finder’s credibility determinations which were resolved against

appellant, this appeal is wholly frivolous.J. S36042/17

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-

Finally , our independent review of the entire record reveals no

additional non

- frivol ous claims. Therefore, we grant counsel ’ s petition to

withdraw a nd affirm appellant’s January 26, 2016 , j udg ment of s entence.
Judgment of sentence affirmed. Petition to w ithdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/31/18