J-S13013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HYKEEM DAVIS,

Appellant No. 1641 EDA 2016

Appeal from the Judgment of Sentence Entered December 16, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002632-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 18, 2017

Appellant, Hykeem Davis, appeals from the judgment of sentence of 1 

to 23 months’ incarceration, followed by 2 years’ probation, imposed after 

he pled guilty to simple assault and resisting arrest. On appeal, Appellant 

seeks to challenge the trial court’s denial of his post-sentence motion to 

withdraw his guilty plea. However, his counsel, David M. Simon, Esq., has 

concluded that this claim is frivolous and, therefore, counsel has filed a 

petition to withdraw his representation of Appellant pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of 

sentence and grant counsel’s petition to withdraw.

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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We briefly summarize the facts underlying Appellant’s conviction as 

follows. On February 26, 2015, at approximately 7:00 a.m., a Temple 

University Police Officer observed Appellant commit multiple motor vehicle 

infractions, including traveling through a red traffic signal and failing to stop 

at a stop sign. See Trial Court Opinion (TCO), 9/15/16, at 2 (unnumbered; 

citation to the record omitted). The officer called for backup, and with the 

assistance of two other officers, they conducted a traffic stop of Appellant’s 

vehicle. Id. During the stop, Appellant became irate and began to drive 

away, running over one officer’s foot. Id. After a short pursuit, the officers 

were able to force Appellant to stop his vehicle. Id. Appellant then exited 

his car, aggressively approached the officers, and resisted as they attempted 

to arrest him. Id. Ultimately, it took several officers to subdue Appellant 

and place him into custody. Id. 

On December 16, 2015, Appellant, who was represented by Attorney 

Simon, entered a negotiated guilty plea, by which he pled guilty to resisting 

arrest and simple assault in exchange for a sentence of 1 to 23 months’ 

incarceration with immediate parole, followed by a term of 2 years’ 

probation. Shortly thereafter, Appellant filed a post-sentence motion 

seeking to withdraw his plea. “The basis for seeking withdrawal was the 

decision of the Probation Department to place [Appellant] on high-risk 

probation, which he asserted included unspecified ‘additional obligations 

above and beyond the negotiated sentence.’” TCO at 3 (unnumbered). On 
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April 21, 2016, Appellant’s motion to withdraw his guilty plea was denied by 

operation of law.

Appellant filed a timely notice of appeal. On June 6, 2016, the trial 

court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. That order informed Appellant 

that “[a]ny issue not properly included in the statement, timely filed and 

served, shall be deemed waived.” Trial Court Order, 6/6/16. Nevertheless, 

Appellant’s counsel, Attorney Simon, never filed a Rule 1925(b) statement 

on Appellant’s behalf. On September 15, 2016, the trial court filed a Rule 

1925(a) opinion, concluding that Appellant had waived any issue(s) he 

sought to raise on appeal. See TCO at 3 (unnumbered). Nevertheless, the 

court provided an alternative analysis of the issue Appellant presented in his 

post-sentence motion to withdraw his guilty plea, concluding that it is 

meritless. See id. at 3-5 (unnumbered).

On December 11, 2016, Attorney Simon filed with this Court a petition 

to withdraw from representing Appellant. He has also filed an Anders brief, 

asserting that the issue Appellant raised in his post-sentence motion to 

withdraw his guilty plea is frivolous, and that Appellant has no other, nonfrivolous issues he could assert on appeal. 

This Court must first pass upon counsel's petition to withdraw 

before reviewing the merits of the underlying issues presented 

by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 

287, 290 (Pa. Super. 2007) (en banc).
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Prior to withdrawing as counsel on a direct appeal under 

Anders, counsel must file a brief that meets the requirements 

established by our Supreme Court in Santiago. The 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

(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. Counsel also must provide a copy of 

the Anders brief to his client. Attending the brief must be a 

letter that advises the client of his right to: “(1) retain new 

counsel to pursue the appeal; (2) proceed pro se on appeal; or 

(3) raise any points that the appellant deems worthy of the 

court[']s attention in addition to the points raised by counsel in 

the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 

353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 

(2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014). 

After determining that counsel has satisfied these technical requirements of 

Anders and Santiago, this Court must then “conduct an independent 

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

In this case, Attorney Simon’s Anders brief complies with the abovestated requirements. Namely, he includes a summary of the relevant factual 

and procedural history, he refers to portions of the record that could 
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arguably support Appellant’s claim, and he sets forth his conclusion that 

Appellant’s appeal is frivolous. He also explains his reasons for reaching that 

determination, and supports his rationale with citations to the record and 

pertinent legal authority. Attorney Simon also states in his petition to 

withdraw that he has supplied Appellant with a copy of his Anders brief, and 

he attaches a letter directed to Appellant in which he informs him of the 

rights enumerated in Nischan. Accordingly, counsel has complied with the 

technical requirements for withdrawal. We must now independently review 

the record to determine if Appellant’s issue is frivolous, and to ascertain if 

there are any other, non-frivolous issues Appellant could pursue on appeal. 

Preliminarily, however, we chastise Attorney Simon for not filing a Rule 

1925(b) statement on Appellant’s behalf, or a Rule 1925(c)(4) statement of 

his intent to file an Anders brief and petition to withdraw. Attorney Simon’s 

failure in this regard constitutes per se ineffectiveness, and we could remand 

under Rule 1925(c)(3) for counsel to file a statement nunc pro tunc. 

However, we decline to do so in this case, as the trial court addressed in its 

Rule 1925(a) opinion the only issue Appellant seeks to raise on appeal. See 

Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) 

(stating that, where the trial court has addressed the issues sought to be 

raised on appeal, we need not remand for the filing of a concise statement 

nunc pro tunc). 

In that issue, Appellant contends that the trial court should have 

granted his post-sentence motion to withdraw his guilty plea. We begin by 
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recognizing that a post-sentence motion to withdraw a guilty plea is “subject 

to higher scrutiny” than a pre-sentence withdrawal motion, “since courts 

strive to discourage entry of guilty pleas as sentence-testing devices.” 

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) 

(citation omitted). “A defendant must demonstrate that manifest injustice 

would result if the court were to deny his post-sentence motion to withdraw 

a guilty plea.” Id. (citation omitted). “Manifest injustice may be established 

if the plea was not tendered knowingly, intelligently, and voluntarily.” Id. 

(citations omitted). 

In Appellant’s post-sentence motion, which was drafted by Attorney 

Simon, counsel averred that Appellant should be permitted to withdraw his 

guilty plea because the probation department has imposed stricter 

conditions on Appellant’s term of probation than he anticipated he would 

receive. However, Attorney Simon never explicitly stated what those 

stricter conditions are; instead, counsel simply declared that Appellant has 

been placed on “high-risk probation” and, “[a]s a result..., he must fulfill 

additional obligations above and beyond the negotiated sentence.” PostSentence Motion, 12/23/15, at 2. Because Attorney Simon failed to identify 

the specific, ‘additional obligations’ that have ostensibly been imposed upon 

Appellant, we cannot concluded that Appellant’s negotiated plea agreement 

was violated. Therefore, the trial court did not err in denying Appellant’s 

post-sentence motion to withdraw his guilty plea. 
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In sum, based on Attorney Simon’s own insufficient pleading in 

Appellant’s post-sentence motion, we are compelled to deem frivolous the 

issue Appellant now seeks to raise on appeal.1 Additionally, our independent 

review of the record reveals no other, non-frivolous issues that Appellant 

could raise herein. Thus, we affirm his judgment of sentence and reluctantly 

grant Attorney Simon’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/18/2017

____________________________________________

1 While we express no opinion on the merits of the matter, we note that 

Appellant can challenge the effectiveness of Attorney Simon’s representation 

in a timely-filed petition under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546.