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[U] In re Z.R.

Superior Court of Pennsylvania

February 26, 2014

IN THE INTEREST OF Z.R., a minor APPEAL OF Z.R.

NON-PRECEDENTIAL DECISION

Appeal from the Dispositional Order of October 31, 2012 In the Court of Common Pleas of Delaware County Juvenile Division at No: CP-23-JU-1140-2012

BEFORE: PANELLA, OLSON and PLATT, [*] JJ.

MEMORANDUM

OLSON, J.

Appellant, Z.R., appeals from the order of disposition entered on October 31, 2012 in the Juvenile Division of the Court of Common Pleas of Delaware County in which the court adjudicated Z.R. delinquent on the charges of aggravated assault, [1] possessing instrument of crime, [2] recklessly endangering another person, [3] and disorderly conduct.[4] On appeal, counsel for Appellant seeks to withdraw from representation pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and its federal precursor, Anders v. California, 386 U.S. 738 (1968). We grant the petition to withdraw and affirm.

The juvenile court summarized the facts of this case as follows:

Stated in a summary fashion, we offer the rendition of the events of approximately 8:20 in the evening of August 16, 2012. Z.R.[, ] a twelve year-old, resides with his mother in the 400 block of Highland Avenue, Chester City, Delaware County, Pennsylvania. When the victim's paramour arrived home from a shopping trip, she exchanged words with her next-door neighbor, Z.R.'s mother. The verbal skirmish erupted into a full blown melee including the hurling of objects and the involvement of other family members. Items were tossed between the porches of the homes of those involved. Some were thrown across the narrow alley between the properties, others woundup in the street.
The police were summoned by the victim's family. While the police were enroute, the victim stood on his porch, anxious for their arrival. As the victim waited, Z.R. approached from ground level, reached up through the spindles of the victim's porch and plunged a steak knife into the upper portion of the victim's leg.

Juvenile Court Opinion, 3/11/13, at 1-2.

On October 31, 2012, the juvenile court held a hearing at which it adjudicated Appellant delinquent on the charges of aggravated assault, possessing instrument of crime, recklessly endangering another person, and disorderly conduct and sentenced him, inter alia, to probation and 40 hours of community service. On November 21, 2012, the Office of the Public Defender of Delaware County, which had represented Appellant to that point, filed a conflict petition, requesting appointment of substitute counsel for appeal because Appellant's mother was interested in alleging ineffective assistance of counsel. On November 30, 2012, the Public Defender of Delaware County filed a notice of appeal to preserve Appellant's right to appeal. That same day, the juvenile court appointed substitute counsel to represent Appellant.

On November 30, 2012, the juvenile court entered an order pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) directing Appellant to file a concise statement of errors complaint of on appeal ("concise statement") within 21 days. Appellant failed to file a concise statement and, on March 11, 2013, the juvenile court filed an opinion addressing certain issues raised at trial. We previously remanded this case for the filing of a concise statement nunc pro tunc. In the Interest of Z.R., 3336 EDA 2012 (Pa.Super. Oct. 11, 2013) (unpublished memorandum). Counsel subsequently filed a concise statement in the juvenile court and the juvenile court issued a supplemental Rule 1925(a) opinion. On November 20, 2013, we ordered Appellant to file his brief on or before December 30, 2013. Counsel failed to comply with our order. Thereafter, on January 9, 2014, we again ordered counsel to file either an advocate's brief or a petition to withdraw as counsel and an Anders brief on or before January 16, 2014. On January 15, 2014, counsel filed a petition to withdraw as counsel and an accompanying Anders brief.

Counsel's Anders brief presents one issue for our review:

Whether the [juvenile] court clearly abused its discretion in admitting evidence of the use of a knife at trial when the Commonwealth failed to produce the knife on the day of trial for the defendant to inspect[?]

Anders Brief at 4.

Before reviewing the merits of this appeal, however, this Court must first determine whether counsel has fulfilled the necessary procedural requirements for withdrawing as counsel. Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.Super. 2013). To withdraw under Anders, court-appointed counsel must satisfy certain technical 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." Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012), quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an Anders brief, in which counsel:

(1) provide[s] a summary of the procedural history and facts, with citations to the record;
(2) refer[s] to anything in the record that counsel believes arguably supports the appeal;
(3) set[s] forth counsel's conclusion that the appeal is frivolous; and
(4) state[s] 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.

Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.

Finally, counsel must furnish a copy of the Anders brief to his client and "advise[] him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention, and attach[] to the Anders petition a copy of the letter sent to the client." Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (citation omitted).[5]

If counsel meets all of the above obligations, "it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Santiago, 978 A.2d at 355 n.5, quoting McClendon, 434 A.2d at 1187. It is only when both the procedural and substantive requirements are satisfied that counsel will be permitted to withdraw. In the case at bar, counsel has met all of the above procedural obligations.[6] We now turn to the issues raised in counsel's Anders brief.

Appellant contends that admission of evidence regarding the use of a knife violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), which "requires the prosecution to turn over, if requested, any evidence which is exculpatory and material to guilt or punishment." Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011). Appellant preserved this issue for appellate review by objecting at trial to the introduction of evidence regarding the use of the knife. See N.T., 10/31/12, at 7-8. We review the trial court's determination regarding a Brady violation for an abuse of discretion, Commonwealth v. Robinson, 834 A.2d 1160, 1166 (Pa.Super. 2003), appeal denied, 849 A.2d 241 (Pa. 2004), and our scope of review is plenary. Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa.Super. 2012) (citation omitted).

"To establish a violation of Brady, a defendant is required to demonstrate: (1) evidence was suppressed by the Commonwealth, either willfully or inadvertently; (2) the evidence was favorable to the defendant; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant." Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa. 2011) (citations omitted). Appellant cannot satisfy the first or second elements of a Brady violation. As to the first element, the evidence presented at trial showed that Appellant was aware of the existence of the knife prior to trial as it was included in the police report that was turned over to Appellant as part of discovery. See N.T., 10/31/12, at 7-8. However, there is no evidence that Appellant requested that the knife be turned over for fingerprint testing or any other type of analysis. There is no evidence that the Commonwealth refused to turn the knife over to the defense. Thus, the Commonwealth did not suppress any evidence. To the contrary, it made Appellant aware of the evidence and Appellant chose not to pursue that evidence further. As to the second element, there is no evidence that the knife would have been favorable to the defendant. To the contrary, the evidence presented at trial shows that the knife would have been inculpatory as several eyewitnesses testified that Appellant used the knife to attack the victim. E.g., N.T., 10/31/13, at 16.

Accordingly, we conclude that the issue raised in counsel's Anders brief is frivolous as there was no Brady violation. Furthermore, after an independent review of the entire record, we conclude that no other issue of arguable merit exists. Therefore, we will grant counsel's request to withdraw. Having determined that the issue raised on appeal is frivolous, we will affirm the dispositional order.

Application to withdraw as counsel granted. Dispositional order affirmed.

Judgment Entered.


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