J-S23004-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDRE G. TUTT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2893 EDA 2016

Appeal from the Judgment of Sentence August 9, 2016

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

No(s): CP-51-CR-0005783-2016

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED JULY 06, 2018

Appellant, Andre G. Tutt, appeals from the judgment of sentence 

entered following his convictions of simple assault, theft, and defiant 

trespass.1 Appellate counsel has filed a petition to withdraw her 

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.

The trial court summarized the factual history of this case as follows:

On April 15th, 2016, around 8:35 am, the Appellant knocked 

on the door of Andrea Cook’s (“Complainant”) home on the 3900 

block of North 96 Street. Guilty Plea Volume 1, August 09, 2016, 

at 5. When Complainant, who had ended a relationship with 

Appellant a week prior, opened the door, Appellant “pushed his 

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1 18 Pa.C.S. §§ 2701(a), 3921(a), and 3503(b)(1), respectively.
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way” into her house, grabbed her cell phone, started strangling 

her and “knocked her to the ground.” Id. at 5. Complainant 

subsequently lost consciousness. Id. at 5. She awoke to find 

Appellant searching for Complainant’s rent money. Id. at 5. 

Appellant then fled the house with Complainant’s car keys and 

paperwork, and proceeded to drive away with Complainant’s car, 

which he did not have permission to use. Id. at 5, 6.

Trial Court Opinion, 7/7/17, at 2-3. The trial court set forth the procedural 

history of this matter as follows:

Appellant ... was initially charged with Aggravated Assaultper section 2702(a); Robbery-per section 3701(a)(1); Burglaryper section 3502(a)(1); Defiant Trespass-per section 3503(b)(1); 

Theft by Unlawful Taking-per section 3921(a); Receiving Stolen 

Property-per section 3925(a); Simple Assault-per section 

2701(a); Recklessly Endangering Another Person-per section 

2705; and Unauthorized Use of a Motor Vehicle-per section 

3928(a).

On August 9, 2016, Appellant entered a negotiated plea of 

guilty, to the charges of Simple Assault (M2)-per section 2701(a); 

Theft by Unlawful Taking (M1)-per section 3921(a) and Defiant 

Trespass (M3)-per section 3503(6)(1). At that time, Appellant 

was represented by Marni Jo Snyder, Esquire, and the 

Commonwealth was represented by Robert Daisey, Esquire. 

Appellant’s guilty plea consisted of an oral inquiry and a written 

guilty plea colloquy, which he signed.

This [c]ourt contemporaneously accepted the negotiated 

sentence of three (3) months fifteen (15) days to twelve (12) 

month’s incarceration, to be followed by three (3) and two (2) 

years of probation, to be served concurrently, and supervised by 

the Domestic Violence Unit of the Probation Department. This 

[c]ourt additionally ordered credit for time served, immediate 

parole, the imposition of mandatory court costs, a Mutual Stay 

Away order, and a payment to the Crime Victim’s Compensation 

Fund. This [c]ourt noted that this sentence was within the 

sentencing guidelines. Appellant did not file any post-sentence 

motions with this [c]ourt.

On September 7, 2016, Appellant appealed the Judgment of 

Sentence entered on August 9, 2016. On October 26, 2016, this 
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[c]ourt filed an Order directing Counsel to file a Concise Statement 

of Errors Complained of on Appeal on or before November 25, 

2016, pursuant to Pennsylvania Rules of Appellate Procedure 

1925(b). On November 23, 2016, Appellant’s court-appointed 

counsel, Marni Jo Snyder, filed a Statement of Intent to File an 

Anders/McClendon Brief pursuant to PA.R.A.P. 1925(c)(4), stating 

that Appellant’s counsel could not “discern any issues of arguable 

merit to pursue in a direct appeal.”

Id. at 1-2.

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

Before we address any questions raised on appeal, we must resolve appellate 

counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 

(Pa. Super. 2013) (en banc). 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.

Id. at 1032 (citation omitted).

In this case, those directives have been satisfied. Within the petition to 

withdraw, counsel averred that she 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 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 
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that he could represent himself or that he could retain private counsel. 

Appellant has not filed any additional documents with this Court.

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).

Counsel’s brief is compliant with Santiago. The brief sets forth the 

procedural history of this case, outlines pertinent case authority, and 

discusses counsel’s conclusion that the appeal is frivolous. We thus conclude 

that the procedural and briefing requirements for withdrawal have been met.

Counsel for Appellant has indicated that, after a thorough and careful 

review of the certified record, there are no issues to be raised in this appeal. 

Ander’s Brief at 7. However, counsel does address the propriety of 

Appellant’s guilty plea. Id. at 7-8. Specifically, counsel considers whether 

Appellant knowingly, intelligently, and voluntarily entered his plea. Id.

With respect to challenges to the validity of a guilty plea on direct 

appeal, this Court has stated the following:

Settled Pennsylvania law makes clear that by entering a 

guilty plea, the defendant waives his right to challenge on direct 
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appeal all nonjurisdictional defects except the legality of the 

sentence and the validity of the plea.

Indeed, a defendant routinely waives a plethora of 

constitutional rights by pleading guilty, including the 

right to a jury trial by his peers, the right to have the 

Commonwealth prove his guilt beyond a reasonable 

doubt, and his right to confront any witnesses against 

him. Furthermore, a defendant is permitted to waive 

fundamental constitutional protections in situations 

involving far less protection of the defendant than that 

presented herein.

A defendant wishing to challenge the voluntariness of a guilty plea 

on direct appeal must either object during the plea colloquy or file 

a motion to withdraw the plea within ten days of sentencing. 

Failure to employ either measure results in waiver. Historically, 

Pennsylvania courts adhere to this waiver principle because it is 

for the court which accepted the plea to consider and correct, in 

the first instance, any error which may have been committed. 

Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140, 

141 (1975) (holding that common and previously condoned 

mistake of attacking guilty plea on direct appeal without first filing 

petition to withdraw plea with trial court is procedural error 

resulting in waiver; stating, “(t)he swift and orderly administration 

of criminal justice requires that lower courts be given the 

opportunity to rectify their errors before they are considered on 

appeal”; “Strict adherence to this procedure could, indeed, 

preclude an otherwise costly, time consuming, and unnecessary 

appeal to this court”).

Likewise:

Normally, issues not preserved in the trial court may 

not be pursued before this Court. Pa.R.A.P. 302(a). 

For example, a request to withdraw a guilty plea on 

the grounds that it was involuntary is one of the claims 

that must be raised by motion in the trial court in 

order to be reviewed on direct appeal. Similarly, 

challenges to a court’s sentencing discretion must be 

raised during sentencing or in a post-sentence motion 

in order for this Court to consider granting allowance 

of appeal. Moreover, for any claim that was required 

to be preserved, this Court cannot review a legal 
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theory in support of that claim unless that particular 

legal theory was presented to the trial court. Thus, 

even if an appellant did seek to withdraw pleas or to 

attack the discretionary aspects of sentencing in the 

trial court, the appellant cannot support those claims 

in this Court by advancing legal arguments different 

than the ones that were made when the claims were 

preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008), 

appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

Further, a defendant who attempts to withdraw a 

guilty plea after sentencing must demonstrate 

prejudice on the order of manifest injustice before 

withdrawal is justified. A plea rises to the level of 

manifest injustice when it was entered into 

involuntarily, unknowingly, or unintelligently.

Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013) (some 

citations and quotation marks omitted).

Our review of the certified record reflects that Appellant did not preserve 

his challenge to the voluntariness of his plea by either objecting during the 

plea colloquy or filing a timely post-sentence motion to withdraw the plea. 

Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, Appellant waived any challenge to 

his guilty plea on direct appeal. Lincoln, 72 A.3d at 609-610.

We also have independently reviewed the record in order to determine 

whether there are any non-frivolous issues present in this case that Appellant 

may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 

2014). Having concluded that there are no meritorious issues, we grant 

Appellant’s counsel permission to withdraw, and we affirm the judgment of 

sentence.
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Petition of counsel to withdraw is granted. Judgment of sentence 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2018