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

COMMONWEALTH OF PENNSYLVANIA

v.

ASHRAF HUSSAN FAGAIR

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2089 MDA 2019 Appeal from the Judgment of Sentence Entered December 9, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001194

- 2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 30, 2020 Ashraf Hussan Fagair (“Appellant”) appeals from the judgment of

sentence of 24 months’ probation, imposed after his guilty plea to one count each of simple assault 1 and criminal mischief

. 2 Counsel se eks permission to withdraw from further representation pursuant to Anders v. California , 386 A.2d 738 (Pa. 1967). Upon review, we find that counsel’s Anders brief satisfies the requirements set forth in Commonwealth v. Santiago , 9 8 A.2d 349 (Pa. 2009), an d that there are no non

- frivolous claims that Appellant can raise herein. Accordingly, we grant counsel’s petition to withdraw and affirm
the judgment of sentence.

_________________ __________ ______ ____ _______
1 18 Pa.C.S. § 2701(a)(1).

2 18 Pa.C.S. § 3304(a)(2).J

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The trial court provided the following summary of the procedural history
in this matter:

This case involves [Appellant’s] appeal from a judgment of sentence entered on December 9, 2019[,] following his plea of guilty to one count of simple assault, a second degree misdemeanor, and one count of criminal mischief, a summary offense. [ 3 ] The [c] ourt sentenced in accordance with a negotiated plea agreement; [Appellant] was sentenced to twenty

- four months of probation and ordered to pay restitution for the simple assault conviction, and an order of separate penalty was entered for the criminal misc hief conviction. The remaining charge to the criminal information, summary harassment, was nol prossed

. T CO at 1. Appellant filed a timely , pro se appeal on December 29, 2019, followed by a timely, court

- ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He now presents the following issue for our review,
via counsel’s Anders brief: “ Was [Appellant’s] guilty plea valid and not coerced by the prosecutor’s threats?” Anders Brief at 4.

_________________ __________ ______ ____ _______
3 To be valid, a guilty plea must be knowingly, voluntarily and intelligently entered. Commonwealth v. Pollard , 832 A.2d 517, 522 (Pa. Super. 2003). T he trial court noted: [Appellant’s] answers to the questions posed to him during his on

record colloquy confirmed, inter alia , that he understood the charges to which he was pleading guilty, that a factual basis for his plea to the charges existed, that he understood a guilty plea must be entered voluntarily, and that he was entering his plea voluntarily. [Appellant] did not state that he had been unduly pressured or coerced into entering a plea as opposed to standi ng trial on the charges. Trial Court Opinion (“TCO”), 1/21/20, at 2.J

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“When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas , 87 4 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith , 700 A.2d 1301, 1303 (Pa. Super. 1997)).
Cou rt

- appointed counsel who seeks to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous 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) file a brief referring to anything that arguably might support the appeal but which does not resemble a “no

merit” letter to amicus curiae brief; and (3) furnish a copy of the brief to the [app ellant] and advise the [appellant] of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court’s attention.
Commonwealth v. Miller , 715 A.2d 1203 (Pa. Super. 1998) (citation omitted). Rojas , 874 A.2 d at 639. Appellant’s counsel has complied with these requirements. Counsel petitioned for leave to withdraw, and filed a brief satisfying the requirements of Anders , as discussed, infra . Counsel also provided a copy of the brief to Appellant, and submi tted proof that he advised Appellant of his right to retain new counsel, proceed pro se , and/or to raise new points not addressed in the Anders brief. Our Supreme Court has held, in addition, that counsel must explain the reasons underlying his assessme nt of Appellant’s case and his conclusion thatJ

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the claims are frivolous. Thus, counsel’s Anders brief must satisfy the following criteria before we may consider the merits of the underlying appeal: [W]e hold 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. Santiago , 978 A.2d at 361. Upon review of the Anders brief submitted by Appellant’s counsel, we find it complies with the technical requirements of Santiago . Counsel’s
Anders brief (1) provides a summary of the procedu ral history and facts of this case; (2) directs our attention, when applicable, to the portions of the record that ostensibly supports Appellant’s claim of error; (3) concludes that Appellant’s claim is frivolous; and (4) does so by citation to the record and appropriate/applicable legal authorities. Thus, we now examine whether Appellant’s claim is, indeed, frivolous. We also must “conduct a simple review of the record to ascertain if there appear on its face to be arguably meritorious
issues that counse l, intentionally or not, missed or misstated.”
Com monwealth v

. Dempster , 187 A.3d 266, 272 (Pa. Super. 2018) ( en
banc ). Instantly, Appellant challenges the validity of his guilty plea. Settled Pennsylvania law makes clear that by entering a guilty plea, the defendant waives his right to challenge on direct appealJ

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all non[

- ]jurisdictional defects except the legality of the sentence and the validity of the plea. Commonwealth v. Pantalion , 957 A.2d 1267, 1271 (Pa. Super. 2008).... 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. Pa.R.Crim.P. 72 0(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver. Commonwealth v. Tareila , 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006). Historically, Pennsylvania courts adhere to this waiver principle because “[i]t is for the court which accepte d the plea to consider and correct, in the first instance, any error which may have been committed.” Commonwealth v. Roberts , ... 352 A.2d 140, 141 ([Pa. Super. ] 1975) (holding that [a] common and previously condoned mistake of attacking guilty plea on dire ct 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 err ors before they are considered on appeal[ , and ... s]trict 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. S imilarly, 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 c annot review a legal 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 a ppellant 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 , A.2d 945, 949 (Pa. Super. 2008), appeal denied , ... 972 A.2d 521 ([Pa.] 2209).J

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Co mmonwealth v. Lincoln , 72 A.3d 606, 610 (Pa. Super. 2013).
After c areful review of the record , we have determined that Appellant failed to preserve his challenge to the validity of his guilty plea by either objecting during the plea colloquy or by filing a post

- sentence motion to withdraw his plea. See id. Accordingly, we are constrained to deem Appellant’s claim waived

. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”);
Tareila , 895 A.2d at 1270 n.3 (“Where an appellant fails to challenge his guilty plea in the trial court, he may not do so on appeal.”)

. O ur review of the record reveals no other poten tial, non

- frivolous issues
that Appellant could raise on appeal. As such, we agree with counsel that a direct appeal in this case is wholly frivolous. Accordingly, we grant counsel’s
motion to withdraw , and we affirm the judgment of sentence

. J udgment of sentence affirmed. Petition to withdraw granted. President Judge Panella joins this memorandum. President Judge Emeritus Ford Elliott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/30/2020