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[U] Commonwealth v. Richards

Superior Court of Pennsylvania

December 10, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CORNELL RICHARDS, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CORNELL RICHARDS, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CORNELL RICHARDS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 30, 2013 In the Court of Common Pleas of Delaware County Criminal Division No(s).: CP-23-CR-0003093-2012, CP-23-CR-0005615-2012, CP-23-CR-0005616-2012.

BEFORE: BOWES, PANELLA, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Cornell Richards, appeals from the judgments of sentence entered in the Delaware County Court of Common Pleas following a consolidated nonjury trial on charges listed in three criminal cases. Concomitant with this appeal, counsel for Appellant has filed a petition to withdraw and an Anders[1] brief indicating that Appellant wishes to challenge the sufficiency of the evidence underlying his conviction for intimidation of a witness or victim, graded as a second-degree misdemeanor.[2] We affirm and grant counsel's petition to withdraw.

The underlying three criminal cases involved the same complainant, Appellant's former girlfriend. In CR-3093-2012, the Commonwealth charged Appellant with, inter alia, simple assault and criminal mischief[3] after police officers responded to a domestic dispute on January 24, 2012. In CR-5616-2012, Appellant was charged with, inter alia, simple assault, theft by unlawful taking, and robbery[4] after an officer observed a domestic dispute on April 28, 2012.[5] In CR-5615-2012, Appellant was charged with, inter alia, intimidation of a witness or victim after the complainant, on July 2, 2012, told officers that Appellant called and sent her text messages asking her to drop the charges against him.

Appellant obtained private counsel, Kevin Wray, Esq. ("trial counsel") and proceeded to a consolidated nonjury trial on November 20, 2012. The following day, the trial court found him guilty in CR-3093-2012 of simple assault, in CR-5616-2012 of simple assault, theft by unlawful taking, and robbery, and in CR-5615-2012 of intimidation of a witness or victim, which the court graded as a second-degree misdemeanor.[6] On January 30, 2013, the court sentenced Appellant to six to twenty-four months' imprisonment for robbery, [7] a consecutive six to twenty-four months' imprisonment for intimidation of a witness or victim, and a consecutive two years' probation for simple assault. The aggregate sentence for the three cases was one to four years' imprisonment followed by two years' probation.

Appellant, acting pro se, sent to the trial court motions to reconsider the sentences on February 4, 2013, although the court did not grant trial counsel leave to withdraw.[8] No counseled post-sentence motions were filed on behalf of Appellant. However, the court denied the pro se post-sentence motions on February 14th. Counsel from the Office of the Public Defender entered an appearance on February 28th and, that same day, filed the instant notices of appeal in each of the three underlying cases. Another attorney from the Office of the Public Defender ("present counsel") entered his appearance and filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders brief. This Court granted Appellant's petition to consolidate the appeals.

Present counsel for Appellant has filed in this Court a petition to withdraw accompanied by an Anders brief raising a challenge the sufficiency of the evidence underlying Appellant's conviction for intimidation of a witness or victim. Anders Brief at 5. Appellant did not respond to counsel's filing of the petition to withdraw and the Anders brief. Following our review, we affirm and grant present counsel's petition to withdraw.

Initially, we must consider present counsel's petition to withdraw. Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012).

Before counsel is permitted to withdraw, he or she must meet the following requirements:

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 counsel or to himself raise any additional points he deems worthy of the Superior Court's attention.

Id. (citing Santiago, 978 A.2d at 361). Moreover, when seeking withdrawal, counsel's brief 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) ...

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