J-S59025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

LINDELL TATE 

 Appellant No. 3368 EDA 2013 

Appeal from the Judgment of Sentence May 3, 2012

In the Court of Common Pleas of Bucks County 

Criminal Division at No(s): CP-09-CR-0003146-2011 

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

 

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 26, 2014 

 Lindell Tate appeals from his judgment of sentence, entered in the 

Court of Common Pleas of Bucks County, following Tate’s convictions for 

robbery – threat of immediate serious injury,1

 receiving stolen property,2

firearms not to be carried without a license,3 possession of a weapon,4

recklessly endangering another person,5 theft by unlawful taking – movable 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S. § 3701(a)(1)(ii). 

2

 18 Pa.C.S. § 3925(a). 

3

 18 Pa.C.S. § 6106(a). 

4

 18 Pa.C.S. § 907(b). 

5

 18 Pa.C.S. § 2705. 
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property,6

 and persons not to possess, use, manufacture, control, sell or 

transfer firearms.7 Tate’s counsel also moves to withdraw pursuant to the 

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

McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). Upon review, we affirm Tate’s judgment of 

sentence based on the opinion of the Honorable Clyde W. Waite, and grant 

counsel’s petition to withdraw.

 On January 29, 2011, at approximately 6:05 p.m., Tate entered a 7-

Eleven store at Street Road and Windsor Street in Bensalem Township, 

Bucks County. Tate pointed a handgun at the store clerk and demanded 

money and cigarettes. The clerk gave Tate cigarettes and $635.00 in cash. 

Tate then fled to the Dunkin’ Donuts across the street. Meanwhile, the store 

clerk and another 7-Eleven employee called 911. The call resulted in a 

police radio dispatch describing Tate and stating that he had run across 

Street Road to a Dunkin’ Donuts store.

Officer Steven Bailey of the Bensalem Township Police responded to 

the call along with three other officers. They entered the Dunkin’ Donuts 

where they saw a man matching Tate’s description go into the bathroom. 

Officer Bailey requested three times that Tate come out. Tate ignored these 

____________________________________________ 

6

 18 Pa.C.S. § 3921(a). 

7

 18 Pa.C.S. § 6105(a)(1). 
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requests, and Officer Bailey entered the bathroom. Officer Bailey confronted 

Tate in the bathroom and again asked him to leave, however, Tate refused. 

The other officers then entered the bathroom, and following a brief struggle, 

they detained and arrested Tate. 

 At the time of his arrest, Tate had $615.00 on his person. 

Investigation revealed that Tate purchased a cup of Dunkin’ Donuts coffee 

using a $20 bill he had stolen from 7-Eleven. A search of the bathroom 

revealed a black nine-millimeter Taurus handgun in the wastebasket. Later 

testing of the weapon revealed it was covered in DNA matching Tate’s.

 Following his arrest, Bensalem Township Detective David Nieves 

interviewed Tate. After obtaining identifying information, Detective Nieves 

read Tate his Miranda8

 warnings and Tate read and signed a card with the 

warnings, indicating he understood each one. After first denying guilt, Tate 

confessed to robbing the 7-Eleven. Tate later testified at the suppression 

hearing that he was high during his interview; however, Detective Nieves 

testified that Tate appeared normal, coherent, and understanding. 

On August 19, 2011, Tate filed an omnibus pre-trial motion seeking to 

suppress all evidence obtained subsequent to his arrest. Following a 

suppression hearing on August 30, 2011, the court concluded that the police 

____________________________________________ 

8 Miranda v. Arizona, 384 U.S. 436 (1966). 
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had sufficient probable cause to arrest Tate immediately after the robbery 

and denied his pre-trial motion. 

On March 6, 2012, a one-day stipulated waiver trial occurred. At the 

conclusion of trial, the court found Tate guilty on all counts. Sentencing was 

deferred until May 3, 2012, at which the time the court sentenced Tate to an 

aggregate term of 71⁄2 to 17 years’ incarceration.

Tate filed a motion for reconsideration of sentence on May 7, 2012, 

which was denied by operation of law. On December 2, 2013, following 

reinstatement of his right to appeal nunc pro tunc, Tate filed the instant 

appeal. 

As noted above, counsel has filed an Anders brief and a corresponding 

petition to withdraw as counsel. “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). Furthermore, counsel must follow certain 

mandates when seeking to withdraw pursuant to Anders, McClendon, and 

Santiago. These mandates are not overly burdensome and have been 

summarized as follows: 

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 
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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).

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations 

omitted). 

 Moreover, the Anders brief that accompanies counsel’s petition to 

withdraw 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. 

 Here, counsel filed a petition averring that, upon a thorough 

examination of the record, he finds the appeal to be wholly frivolous, and 

states his reasons for so concluding. Counsel also filed a brief that provides 

the case’s factual and procedural history and includes citations to the record. 

Counsel provided a copy of the Anders petition and brief to Tate, and 

advised him of his right to retain new counsel, or proceed pro se, and raise 

any additional points he deems worthy of this Court’s attention. 

Accordingly, we find counsel has met the requirements of Anders,

McClendon, and Santiago. 
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Once counsel has satisfied the above requirements, this Court 

conducts its own review of the proceedings and renders an independent 

judgment as to whether the appeal is, in fact, wholly frivolous. 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). On 

appeal, Tate challenges the trial court’s decision to deny his motion to 

suppress all evidence obtained subsequent to his arrest, claiming that the 

police lacked reasonable suspicion, probable cause, or any other grounds to 

detain, search, and arrest Tate. Accordingly, Tate argues that all evidence 

obtained as a result of his arrest should have been suppressed. 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the trial court, we conclude 

that Tate’s challenge to the trial court’s denial of his suppression motion is 

meritless. The trial court opinion comprehensively discusses and properly 

disposes of the question presented. See Trial Court Opinion, 4/14//14, at 

14-17 (finding “[a]n examination of the totality of the circumstances 

surrounding this case reveals that there was an overwhelming amount of 

indisputable evidence to support the trial court’s conclusion that the police 

officers had probable cause to detain and arrest Tate.”).

As such, we rely upon the opinion authored by the Honorable Clyde W. 

Waite in affirming the trial court’s order. We instruct the parties to attach a 

copy of Judge Waite’s decision in the event of further proceedings in the 

matter. Additionally, because Tate’s appeal is, in fact, wholly frivolous, we 

grant counsel’s petition to withdraw.
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Judgment of sentence affirmed. Petition to withdraw as counsel 

granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

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