J-S72004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANEURI ANTONIO PENA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 996 MDA 2018

Appeal from the Judgment of Sentence April 11, 2018

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0004964-2017

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED: APRIL 30, 2019

Aneuri Antonio Pena appeals from the judgment of sentence of six 

months of probation after he pled guilty to harassment and disorderly conduct. 

Appellant’s counsel has filed a petition to withdraw and a brief pursuant to 

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

Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s petition to withdraw 

and affirm the judgment of sentence.

The Commonwealth charged Appellant with one count each of 

aggravated assault, simple assault, harassment, and disorderly conduct, 

arising from an incident in Berks County, Pennsylvania. On October 7, 2017, 

police took Appellant to the Reading hospital for medical clearance before 

incarceration. Once at the hospital, Appellant resisted medical treatment, 

causing security guards and medical staff to attempt to position Appellant into 
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four-point restraints. During the scuffle, Appellant bit the finger of a nurse’s 

assistant and spit in the face of a security guard. 

On April 11, 2018, Appellant appeared before the trial court to enter an

open guilty plea, under which the Commonwealth would withdraw the

aggravated and simple assault charges in exchange for Appellant’s guilty plea 

to the remaining offenses. N.T. Guilty Plea/Sentencing, 4/11/18, at 2. The 

court engaged in a colloquy of Appellant, wherein he demonstrated a 

knowledge of the charges pending, the elements of the offenses, and the 

maximum penalties for each offense. Id. at 3-9. Appellant verified his 

understanding that, in exchange for his guilty plea, he would give up his right 

to a jury trial on the simple assault and aggravated assault and a bench trial 

on the summary charges. Id. at 5-6. The trial court accepted the plea and 

Appellant immediately proceeded to sentencing. Appellant received an 

aggregate sentence of six months of probation. Id. at 9.1

On April 17, 2018, Appellant filed a post-sentence motion asking to 

withdraw his guilty plea. In the motion, Appellant averred that withdrawal 

was necessary “to correct a manifest injustice,” because he was innocent, and 

because “he was overwhelmed with the plea process.” Post-Sentence Motion, 

4/17/18, 1-2. The trial court denied Appellant’s motion and Appellant filed a 

timely notice of appeal. The trial court made no request for a concise 

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1 Appellant was also ordered to pay costs of supervision and a fifty-dollar fine. 
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statement of errors complained of on appeal, but issued its 1925(a) statement 

on July 20, 2018. 

In this Court, counsel filed both an Anders brief and a petition to 

withdraw as counsel. Accordingly, the following principles guide our review of 

this matter:

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 pro se or raise any additional 

points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions (e.g., 

directing counsel either to comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our own 

review of the appeal to determine if it is wholly frivolous. If the 

appeal is frivolous, we will grant the withdrawal petition and affirm 

the judgment of sentence. However, if there are non-frivolous 

issues, we will deny the petition and remand for the filing of an 

advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007) 

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:
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[I]n 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 statues on point that have led 

to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

Based upon our examination of counsel’s petition to withdraw and 

Anders brief, we conclude that counsel has substantially complied with the 

technical requirements set forth above. Counsel set forth the case history, 

referred to an issue that arguably supports the appeal, stated her conclusion 

that the appeal is frivolous, and cited to controlling case law which supports 

that conclusion. See Anders brief at 9-24. Additionally, counsel gave 

Appellant proper notice of his right to immediately proceed pro se or retain 

another attorney.2 See Santiago, supra; Letter, 9/17/18, at 1-2. 

Accordingly, we proceed to an examination of the issue raised to discern if it 

is frivolous. Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super. 

2018) (en banc).

Counsel identified one issue that arguably supports this appeal: 

“[w]hether the trial court erred when it denied Appellant’s petition to withdraw 

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2 Appellant did not file a response to counsel’s petition.
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his guilty plea, even though said guilty plea was not made knowingly, 

intelligently, or voluntarily.” Anders brief at 8. 

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

summarized the principles governing post-sentence motions to withdraw

guilty pleas:

post-sentence motions for withdrawal are subject to higher

scrutiny since courts strive to discourage entry of guilty pleas as

sentence-testing devices. A defendant must demonstrate that

manifest injustice would result if the court were to deny his postsentence motion to withdraw a guilty plea. Manifest injustice may

be established if the plea was not tendered knowingly,

intelligently, and voluntarily. In determining whether a plea is

valid, the court must examine the totality of circumstances

surrounding the plea. A deficient plea does not per se establish

prejudice on the order of manifest injustice.

Id. at 129 (citations omitted). 

A court accepting a defendant’s plea is required to conduct an on-therecord inquiry, which explores the following areas:

(1) Does the defendant understand the nature of the charges to 

which he or she is pleading guilty or nolo contendere?[;] (2) is 

there a factual basis for the plea?[;] (3) does the defendant 

understand that he or she has the right to a trial by jury?[;] (4) 

does the defendant understand that he or she is presumed 

innocent until found guilty[;] (5) is the defendant aware of the 

permissible range of sentences and/or fines for the offenses 

charged?[; and] (6) is the defendant aware that the judge is not 

bound by the terms of any plea agreement tendered unless the 

judge accepts such agreement?

Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa.Super. 2003) 

(citations omitted); see also Pa.R.Crim.P. 590. Moreover, “[o]ur law 
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presumes that a defendant who enters a guilty plea was aware of what he was 

doing. He bears the burden of proving otherwise.” Pollard, supra at 523.

Upon review, we discern that the plea colloquy complied with 

Pa.R.Crim.P. 590. The court inquired at length concerning Appellant’s 

understanding of the nature of the charges he faced and the terms of the plea 

agreement. N.T. Guilty Plea/Sentencing, 4/11/18, at 2-9. More specifically, 

it listed the offenses charged, the elements which the Commonwealth would 

have to prove if Appellant chose to proceed to trial, and the maximum 

penalties he faced if convicted. Id. at 4-6. It also reminded Appellant that 

he had the right to have a jury trial on the aggravated and simple assault 

charges, and to proceed to a bench trial on the summary offenses. Id. at 5. 

Finally, it advised Appellant that he was presumed innocent and incorporated 

his written guilty plea colloquy into the record. Id. at 3, 5. 

During the colloquy, Appellant initially expressed hesitation about the 

guilty plea going forward, because he felt that he was being “coerced a little,” 

did not “feel like [he was] really understanding the case,” and wanted “better 

knowledge of the legal strategy.” Id. at 4. Appellant’s attorney immediately 

responded that she was ready to proceed to trial. Id. However, once the trial 

court explored Appellant’s concerns by engaging in a detailed discussion of 

the entire process with Appellant, and his counsel stated the facts of the case 

in conjunction with the various elements that the Commonwealth would have 
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to prove at trial, Appellant’s concerns were alleviated and he expressed his 

desire to plead guilty. Id. at 7-9. 

Upon our independent review of the record, we discern no manifest 

injustice that would support the post-sentence withdrawal of Appellant’s guilty 

plea. The guilty plea colloquy irrefutably establishes that the trial court made 

the appropriate inquiries and that Appellant entered his plea knowingly, 

intelligently, and voluntarily. Appellant willingly availed himself of the benefits 

of the plea agreement and is bound by the statements he made during his 

written and oral guilty plea colloquies. Commonwealth v. Turetsky, 925 

A.2d 876, 881 (Pa.Super. 2007) (“A person who elects to plead guilty is bound 

by the statements he makes in open court while under oath and he may not 

later assert grounds of withdrawing the plea which contradict the statements 

he made at his plea colloquy.”) (citation omitted). Therefore, for all of the 

foregoing reasons, Appellant’s claim is devoid of merit.

Further, we have conducted a “full examination of the proceedings” and 

determined that “the appeal is in fact wholly frivolous.”3 Commonwealth v. 

Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since our review did not 

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3 We undertook our review mindful of the fact that “upon entry of a guilty 

plea, a defendant waives all claims and defenses other than those sounding 

in the jurisdiction of the court, the validity of the plea, and what has been 

termed the ‘legality’ of the sentence imposed.” Commonwealth v. 

Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on 

those subjects are apparent from the record before us.
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disclose any other arguably meritorious claims, we grant counsel’s petition to 

withdraw and affirm the judgment of sentence. Dempster, supra at 273.

Petition of Lauren E. Otero, Esquire, to withdraw as counsel is granted. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/2019