J-S34021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 assault1 and criminal mischief.

2

 Counsel seeks 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, 98 A.2d 

349 (Pa. 2009), and 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-S34021-20

- 2 -

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 mischief conviction. The remaining charge to the 

criminal information, summary harassment, was nol prossed. 

TCO 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). 

The trial court noted:

[Appellant’s] answers to the questions posed to him during his onrecord 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 standing 

trial on the charges. 

Trial Court Opinion (“TCO”), 1/21/20, at 2.
J-S34021-20

- 3 -

“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, 874 A.2d 638, 639 (Pa. Super. 2005) 

(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 

1997)). 

Court-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 “nomerit” letter to amicus curiae brief; and (3) furnish a copy 

of the brief to the [appellant] 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.2d 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 submitted 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 assessment of Appellant’s case and his conclusion that 
J-S34021-20

- 4 -

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 courtappointed 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 procedural 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 counsel, intentionally or not, missed or misstated.” 

Commonwealth 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 appeal 
J-S34021-20

- 5 -

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. 720(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 accepted 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 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[, 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. Similarly, challenges to a court’s sentencing 

discretion must be raised during sentencing or in a postsentence 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 

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, A.2d 945, 949 (Pa. Super. 2008), 

appeal denied, ... 972 A.2d 521 ([Pa.] 2209). 
J-S34021-20

- 6 -

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

After careful 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.”). 

Our review of the record reveals no other potential, 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.

Judgment 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