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[U] Commonwealth v. Sowell

Superior Court of Pennsylvania

November 26, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MARKALE ALSAMAD SOWELL Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MARKALE ALSAMAD SOWELL Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Denial of Post-Sentence Motions March 29, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001643-2010

Appeal from the Judgment of Sentence November 30, 2011 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001643-2010

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J. [*]

MEMORANDUM

PANELLA, J.

Appellant, Markale Sowell, appeals from the judgment of sentence entered November 30, 2011. Additionally, Appellant's court-appointed counsel, Julian G. Allatt, Esq., has petitioned to withdraw and has submitted an Anders [1] brief in support thereof, contending that Appellant's appeal is frivolous. After careful review, we grant Attorney Allatt's petition to withdraw as counsel and we affirm Appellant's judgment of sentence.

The trial court summarized the relevant facts as follows.
On September 26, 2010, at approximately 1:00 p.m. Tamika Moore and some of her female relatives were fighting with some other females, including one or more of [Appellant's] female relatives. The fight broke up and the group of females dispersed. [Appellant], who resided in Harrisburg, came to Williamsport in his aunt's vehicle, arriving in the [late] afternoon....
Ms. Moore was in a residence cooking dinner when her son ran into the house and said, "Ma, Aunt Fe is getting jumped." As Ms. Moore went to go outside to see what was going on, she was met at her front screen door by [Appellant], who had a gun in the front of his waistband. [Appellant] pulled a revolver with brown grips from his waistband, pointed it as Ms. Moore's hip and said[, ] "[b]itch, you are coming to the other side." Ms. Moore took this to mean that [Appellant] wanted her to fight on the side of his wife and relatives, instead of with her relatives, who were now engaged in a second fight. Ms. Moore grabbed her eleven year old son who was standing near her, and slammed the front door shut. She called the police, and then she went outside. She saw [Appellant] leaving in a silver sedan just as a police officer was arriving in the area in an unmarked maroon police vehicle. She recognized the vehicle and began yelling and gesturing to the officer that [Appellant] was leaving in the silver sedan. The officer activated his lights and sirens, but [Appellant] sped off.
[Appellant] took the police on a high speed chase through busy intersections in the City of Williamsport. He ran numerous red lights and stop signs. When he attempted to turn left from Fourth Street onto Campbell Street, [Appellant] lost control of the silver sedan, striking a tree and the Weightman apartment building. Two pedestrians, Emily Moon and Alicia Binado, had to jump out of the way to avoid being hit by the vehicle. Although the vehicle was disabled, [Appellant] continued to flee from the police. He jumped out of the vehicle and ran away on foot. The police yelled for him to stop, but [Appellant] did not. The police chased him on foot, and ultimately apprehended him by utilizing their tasers.
The police received consent from the owner of the vehicle and searched the vehicle. They found a .22 caliber H&R revolver with brown grips wrapped in a gold scarf. The police ran the serial number on the gun and discovered that it had been reported stolen. The police also ran a criminal history check on [Appellant] and discovered that he had a robbery conviction in New Jersey, which made it unlawful for him to possess a firearm and rendered him ineligible to obtain a license to do so.

Trial Court 1925(a) Opinion, 11/30/12 at 1-2.

Following a jury trial, Appellant was convicted of Fleeing or Attempting to Elude a Police Officer (75 Pa. Cons. Stat. Ann. § 3733), Persons Not to Possess or Control Firearms (18 Pa. Cons. Stat. Ann. § 6105), Firearms Not be to Carried Without a License (18 Pa. Cons. Stat. Ann. § 6106), two (2) counts of Recklessly Endangering Another Person (18 Pa. Cons. Stat. Ann. § 2705), Simple Assault by Physical Menace (18 Pa. Cons. Stat. Ann. § 2701), Reckless Driving (75 Pa. Cons. Stat. Ann. § 3736), and Driving Without a License (75 Pa. Cons. Stat. Ann. § 1501). On November 30, 2011, the trial court imposed an aggregate sentence of 8 Vi to 17 years incarceration.

On December 1, 2011, Appellant filed post sentence motions, which the trial court denied in an opinion and order entered on March 29, 2012. Appellant subsequently filed a timely pro se notice of appeal, a statement of errors complained of on appeal, and a request for the appointment of counsel.[2] The trial court appointed appellate counsel who filed a brief in this Court pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), with a separate petition seeking to withdraw as counsel on March 18, 2013.

Preliminarily, we note that the appeal docketed at number 832 MDA 2012 appeals the order filed March 29, 2012, denying Appellant's post-sentence motions. "An appeal from an order denying a post-[sentence] motion is procedurally improper because a direct appeal in a criminal proceeding lies from the judgment of sentence." Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.l (Pa.Super. 2007) (citation omitted). Further, the appeal does not fall within any of the exceptions to this rule. See id. Accordingly, we dismiss the appeal docketed at 832 MDA 2012 since it lies from the post-trial order and not from the judgment of sentence. The dismissal does not preclude our analysis of the merits since the appeal docketed at 845 MDA 2012 is taken from the judgment of sentence entered on November 30, 2011. We proceed to the merits.

We begin by addressing counsel's petition to withdraw pursuant to Anders and its progeny. If counsel believes an appeal is frivolous and wishes to withdraw representation on appeal, he must follow the following steps.

First, counsel must petition the court for leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolous; second, he must file a brief referring to any issues in the record of arguable merit; and third, he must furnish a copy of the brief to the defendant and advise him of his right to retain new ...

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