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09/18/97 COMMONWEALTH PENNSYLVANIA v. CHARLES SMITH

September 18, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES SMITH, APPELLANT



Appeal from the JUDGMENT OF SENTENCE September 24, 1996 In the Court of Common Pleas of PHILADELPHIA County, CRIMINAL, NO. 9603-1167 1/1.

Filed Before: Ford Elliott, Schiller, And Hoffman, JJ. Opinion By: Schiller, J.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

Filed September 18, 1997

Appellant, Charles Smith, appeals from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following his conviction of robbery and related offenses. We deny counsel's motion to withdraw and direct counsel to file a new brief to this Court.

FACTS:

On February 17, 1996, at approximately midnight, appellant and another individual approached two young women at Broad and Susquehanna Streets in Philadelphia. Appellant approached the women with his hands in his pockets, and, claiming that he had a gun, demanded their money and threatened to kill them. The women gave appellant all of their money, which totalled $21.00. Appellant and the other individual then left the scene. Upon reporting the incident to a police officer, the two women spotted appellant and the other individual outside a restaurant, at which time they were arrested.

On September 13, 1996, following a bench trial, appellant was convicted of two counts each of robbery, *fn1 receiving stolen property, *fn2 terroristic threats, *fn3 possessing instruments of crime, *fn4 and simple assault. *fn5 He was sentenced on the robbery convictions to a term of imprisonment of time previously served to twenty-three months, plus one year probation; no sentences were imposed for the other crimes. *fn6 This appeal followed. Before this Court, appellant's counsel, who also represented appellant at trial, has filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), whereby counsel argues that this appeal is frivolous and moves to withdraw.

Discussion

In his brief, appellant's counsel raises one issue: "whether there are any issues of arguable merit presently before this Court?"

Appellant's counsel seeks to withdraw under Anders and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). To be permitted to withdraw pursuant to Anders and its progeny, counsel must: 1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, it has been determined that the appeal would be frivolous; 2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a no merit letter or amicus curiae brief; and 3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court's attention. Commonwealth v. Townsend, Pa. Super. , 693 A.2d 980 (1997).

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. Fischetti, 447 Pa. Super. 381, 669 A.2d 399 (1995). It is only after all of the requirements attendant to counsel's request to withdraw are satisfied that we will make a full examination of the proceedings in the lower court and render an independent judgment whether the appeal is in fact "frivolous." Commonwealth v. Wilson, 396 Pa. Super. 296, 578 A.2d 523 (1990); Commonwealth v. Kennedy, 417 Pa. Super. 154, 611 A.2d 1312 (1992).

Counsel has complied with the first and third requirements of Anders. Counsel in his brief has moved to withdraw, *fn7 and has stated that he has furnished appellant a copy of the brief and advised him of his rights in lieu of counsel's representation. However, counsel has failed to meet the second requirement of Anders. In his brief, appellant's counsel argues that there are no arguably meritorious issues that can be raised on appeal, and that therefore the appeal is frivolous. The argument section of the brief contends that the two issues appellant desired to raise, i.e. sufficiency and weight of evidence, have no merit. Counsel then explains how the evidence was sufficient to support the conviction and that the guilty conviction did not shock the conscience and therefore was not contrary to the weight of the evidence.

A brief pointing out the flaws in the issues presented is not the proper form of an Anders brief, as this approach operates to deny a defendant the ...


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