Com. v. Hammond, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
ANTONIO HAMMOND :
:
:
Appellant : No. 1931 MDA 2019
Appeal from the Judgment of Sentence Entered November 4, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000602-2019
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY BOWES, J.: FILED JULY 31, 2020
Antonio Hammond appeals from his November 4, 2019 judgment of
sentence imposed after a jury found him guilty of escape, access device fraud,
and theft of lost property. Appellant’s counsel, Michael Aegbuniwe, Esquire,
has filed a petition to withdraw pursuant to the legal framework of Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009). As we find that counsel has failed to comply with the
requirements of withdrawal under Anders/Santiago, we deny counsel’s
petition to withdraw and remand with instructions.
Appellant’s conviction stems from a number of fraudulent purchases that
he made using a misappropriated credit card. Specifically, Appellant obtained
the credit card after a patron left it in a wallet at the Applebee’s where his
girlfriend, Jenifer Slaughter, worked at as a server. Thereafter, Appellant and
Ms. Slaughter went on a spending spree at various stores and merchants in
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the Harrisburg Mall. The owner of the card quickly reported the unauthorized
charges to police, who reviewed surveillance footage of the purchases taken
from multiple stores. Both Appellant and Ms. Slaughter were readily
identifiable. Police then proceeded to the Applebees, where officers
recognized both parties from the surveillance footage. Officers placed both
Appellant and Ms. Slaughter under arrest. Despite being advised three
separate times that he was under arrest, Appellant broke free from police and
fled. After a foot chase that lasted approximately one-quarter of one mile,
Appellant was recaptured and taken into custody.
Appellant was convicted at a jury trial of the above-referenced offenses.
In addition to various restitution assessments and fines, Appellant was
sentenced to an aggregate term of twenty-one to forty-eight months of
incarceration. Appellant filed a timely notice of appeal. The trial court directed
Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b),
and Appellant timely filed a one-issue statement challenging the sufficiency of
the Commonwealth’s evidence with respect to escape.
Thereafter, Attorney Aegbuniwe was appointed to take over Appellant’s
case. Ultimately, counsel elected to file an application to withdraw averring
that Appellant’s potential claims on appeal were wholly frivolous. Counsel has
also filed an Anders brief, wherein he raised a single issue: “Whether the
evidence was insufficient to support a conviction of escape pursuant to 18
Pa.C.S. § 5121(A)?” Anders brief at 8. As of the filing of this memorandum,
Appellant has neither filed a pro se response, nor retained new counsel.
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Before we address the merits of this appeal, we must determine whether
counsel has complied with the procedures provided in Anders and its progeny.
See Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018) (en
banc). “Counsel who wishes to withdraw must file a petition to withdraw
stating that he or she has made a conscientious examination of the record and
determined that the appeal would be frivolous.” Id. At a minimum, the
Anders 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) state counsel’s reasons for concluding that the
appeal is frivolous. Id. at 1196. In particular, it “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.” Id.
Unfortunately, counsel’s Anders brief does not satisfy these mandates.
While counsel has provided an adequate discussion of the history underlying
Appellant’s case and the arguments that favor Appellant’s appellate claim, the
brief does not include any discussion or justification of counsel’s conclusion
that Appellant’s claims are wholly frivolous. Cf. Santiago, supra at 360-61
(“[A] discussion of counsel’s reasons for believing that the client’s appeal is
frivolous is mandatory and must be included in counsel’s brief.”). Although
counsel has styled this filing as an Anders brief, it reads much more like a
cursory advocate’s brief.
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This is a significant oversight given counsel’s stated intent to withdraw
his representation, as our Supreme Court has enunciated that requiring
counsel to articulate the basis for a conclusion of frivolity assists appellate
courts in confirming that counsel has conducted a “thorough and diligent
review,” as well as establishing the lack of merit in Appellant’s potential
appellate claims. Id. Moreover, we are particularly mindful that these
requirements are “stringent, and with good reason.” Commonwealth v.
Orellana, 86 A.3d 877, 881 (Pa.Super. 2014) (discussing defendants’
constitutional right to representation by counsel on direct appeal).
Accordingly, we deny counsel’s motion to withdraw without prejudice,
and remand so that counsel may either file a new petition to withdraw and a
fully compliant Anders brief, or an advocate’s brief.1 Accord Santiago,
supra at 360-61. Counsel shall have sixty days from the entry of this
judgment order to file a new brief. The Commonwealth shall have thirty days
thereafter to file a response.
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1 Due to the nature of our holding, we may make no comment on the eventual
merits of Appellant’s appellate claims. See Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (“When faced with a purported
Anders brief, this Court may not review the merits of any possible underlying
issues without first examining counsel’s request to withdraw.”). Given the
inconsistency in counsel’s briefing, we emphasize that it remains entirely
within counsel’s ken to file an advocate’s brief if he does not believe
Appellant’s claims are frivolous. Regardless of his chosen tact, we note that
“[t]he universe of potential claims is not limited to those claims and testimony
that counsel’s unschooled client believes the court should consider.”
Commonwealth v. Santiago, 978 A.2d 349, 360 (Pa. 2009).
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Petition of Michael Aegbuniwe, Esquire, to withdraw denied. Case
remanded with instructions. Jurisdiction retained.
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