J-S71044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

EDWARDO INFANTE,

Appellant No. 3666 EDA 2016

Appeal from the Judgment of Sentence December 8, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0015363-2013

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 31, 2018

Appellant, Edwardo Infante, appeals nunc pro tunc from the judgment 

of sentence imposed following his counseled, open plea of nolo contendere to 

aggravated assault, attempted rape, and related charges. Counsel has filed

a petition to withdraw and an Anders brief.1 We grant the petition to 

withdraw and affirm the judgment of sentence. 

The underlying facts of this case are not in dispute. After assaulting a 

door attendant to gain entry to an apartment house, Appellant forced his way 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See Anders v. California, 386 U.S. 738 (1967); see also Commonwealth 

v. Santiago, 978 A.2d 349, 351 (Pa. 2009).
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into the victim’s apartment, and proceeded to assault her sexually in several 

ways. The door man called the police. When the police arrived, Appellant 

resisted arrest and kicked a Philadelphia police sergeant in the groin. The 

police had to tase Appellant to subdue him. 

On June 23, 2014, Appellant filed an open, counseled plea of no contest 

to reduced charges of aggravated assault, attempted rape, attempted 

involuntary deviate sexual intercourse, attempted aggravated indecent 

assault, and burglary. Appellant completed a written plea colloquy and the 

trial court engaged in an oral colloquy with Appellant. (See Trial Court 

Opinion, 3/06/17, at 3-4). The remaining charges were nol prossed.

Appellant’s plea avoided a possible aggregate sentence of not less than fortyfive nor more than ninety years in prison. (See id. at 4). On December 8, 

2014, the court sentenced Appellant to a term of not less than eight nor more 

than twenty years of incarceration followed by ten years of probation. At 

sentencing, the trial court was informed by the pre-sentence investigation 

report. (See id.). 

Appellant did not then file a timely direct appeal, but his direct appeal 

rights were reinstated pursuant to a petition filed under the Post Conviction

Relief Act, 42 Pa.C.S.A. §§ 9541–9546. Appellant timely appealed, nunc pro 

tunc. However, his appointed counsel filed a statement of intent to file an 

Anders brief in lieu of filing a statement of errors. See Pa.R.A.P. 1925(c)(4). 
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Appellant has not responded. The trial court filed an opinion on March 6, 

2017. See Pa.R.A.P. 1925(a). 

“When presented with an Anders brief, this [C]ourt may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc )). To withdraw from an appeal pursuant to Anders, 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.

On review, we find that counsel served Appellant a copy of the Anders

brief, and advised him of his right to proceed pro se or to retain a private 

attorney to raise any additional points he deemed worthy of this Court’s 

review. We conclude that counsel has substantially complied with the 

requirements of Anders and Santiago.

2

 

____________________________________________

2 As already noted, Appellant has not responded to counsel’s motion to 

withdraw.
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Furthermore, counsel concludes that Appellant has no non-frivolous 

grounds for appeal. (See Anders Brief, at 3). On independent review, we 

agree.

We are aware that by entering a nolo contendere plea, a 

defendant does not admit that he is guilty. Commonwealth v. 

Lewis, 791 A.2d 1227 (Pa. Super. 2002); see also 

Commonwealth v. Moser, 999 A.2d 602 (Pa. Super.2010 ). “As 

the United States Supreme Court has held, a plea of nolo 

contendere is ‘a plea by which a defendant does not expressly 

admit his guilt, but nonetheless waives his right to a trial and 

authorizes the court for purposes of sentencing to treat him as if 

he were guilty.’ North Carolina v. Alford, 400 U.S. 25, 36, 91 

S.Ct. 160, 167, 27 L.Ed.2d 162, 170 (1970).” Lewis, supra at 

1234 (emphasis added). “[T]he difference between a plea of nolo 

contendere and a plea of guilty is that, while the latter is a 

confession binding defendant in other proceedings, the former has 

no effect beyond the particular case.” Moser, supra at 606 

(quoting Commonwealth ex rel. Monaghan v. Burke, 167 

Pa.Super. 417, 74 A.2d 802, 804 (1950)). Thus, for purposes of 

proceedings relating to the charges, Appellant agreed to be 

treated as guilty of the crimes. 

Commonwealth v. V.G., 9 A.3d 222, 226–27 (Pa. Super. 2010) (emphasis 

in original). 

“[A] defendant who pleads nolo contendere waives all defects and 

defenses except those concerning the jurisdiction of the court, legality of 

sentence, and validity of plea.” Commonwealth v. Kraft, 739 A.2d 1063, 

1064 (Pa. Super. 1999) (footnote and citation omitted). On independent 

review, we find no non-frivolous basis to assert any of these defenses. 

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

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/18