Com. v. Boozer, R. (memorandum)

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J-S36002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RAYMOND BOOZER Appellant No. 1075 EDA 2013 Appeal from the Judgment of Sentence October 26, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003027-2011 BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 01, 2014 Appellant, Raymond Boozer, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his jury trial convictions for robbery, simple assault, and theft by unlawful taking or disposition.1 In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. ____________________________________________ 1 18 Pa.C.S.A. ยงยง 3701, 2701, 3921, respectively. _____________________________ *Former Justice specially assigned to the Superior Court. J-S36002-14 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. with these requirements is sufficient. Substantial compliance Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)). In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation: Neither Anders nor McClendon[2] brief provide an argument of any sort, let alone the type of ____________________________________________ 2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). -2- J-S36002-14 argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal. * * * Under Anders, the right to counsel is vindicated by arguably supports the appeal. Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held: [I]n the Anders brief that accompanies court-appointed 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 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. Id. at 178-79, 978 A.2d at 361. Instantly, counsel filed a petition for leave to withdraw representation. The petition states counsel diligently researched the record and controlling law, and he concluded the appeal would be wholly frivolous. indicates he advised Appellant of the withdrawal request. Counsel Counsel also supplied Appellant with a copy of the withdrawal petition, the brief, and a pro se or with new privately retained counsel to raise any additional points Appellant deems necessary. In his Anders brief, counsel provides a summary of the facts and procedural history of the case with citations to the record. Counsel refers to evidence in -3- J-S36002-14 the record that may arguably support the issues raised on appeal, and he for his conclusion that the appeal is wholly frivolous. Thus, counsel has substantially complied with the requirements of Anders and Santiago. As Appellant has filed neither a pro se brief nor a counseled brief with new privately retained counsel, we review this appeal on the basis of the issues raised in the Anders brief: ROBBERY WITH THREAT OF SERIOUS BODILY INJURY, THEFT, AND SIMPLE ASSAULT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF RECORD? WAS APPELLANT UNABLE TO FORMULATE THE NECESSARY MENS REA TO BE AN ACCOMPLICE IN THE ROBBERY AS A RESULT OF HIS VOLUNTARY INTOXICATION RESULTING FROM HIS SMOKING MARIJUANA? (Anders Brief at 4). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Gary S. comprehensively presented. discusses and properly disposes of the questions (See Trial Court Opinion, filed November 26, 2013, at 5-9) (finding: 1) Appellant drove two cohorts to store where offenses occurred; Appellant parked vehicle in manner to facilitate quick getaway; Appellant -defendant approached with stolen merchandise; Appellant kept trunk unlocked so co- -4- J-S36002-14 defendant could easily insert stolen merchandise; physical evidence recovered from vehicle, including packaging for toy guns used in robbery, presented additional evidence regarding nature of relationship between Appellant and cowere accomplices; although Appellant did not enter store during robbery, his intent and participation in offenses could be inferred from his conduct and convictions as accomplice; 2) Appellant waived claim regarding voluntary intoxication where he did not raise claim at trial or present evidence of intoxication for relevant only to reduce degree of crime in murder cases and cannot negate intent for crimes of which Appellant was convicted). Accordingly, we affirm on the basis of the trial court opinion and gra withdraw. granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/1/2014 -5-

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