Com. v. Walker, K. (memorandum)

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J-S78042-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. KEITH A. WALKER, JR. Appellant No. 1952 EDA 2013 Appeal from the Judgment of Sentence June 26, 2013 in the Court of Common Pleas of Chester County Criminal Division at Nos.: CP-15-SA-0000377-2012; CP-15-SA-0000378-2012 BEFORE: SHOGAN, J., OTT, J., and PLATT, J.* MEMORANDUM BY PLATT, J. FILED JANUARY 31, 2014 Appellant, Keith A. Walker, Jr., appeals from the judgment of sentence imposed after his conviction of driving while operating privilege is suspended or revoked and theft of services.1 from representation pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We withdraw. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 75 Pa.C.S.A. § 1543(b) and 18 Pa.C.S.A. § 3926, respectively. J-S78042-13 The background of this case follows. In the early morning hours of June 24, 2012, Officer William Vibbahn of the West Chester Police Department observed Appellant and a second individual on motorcycles, attempting to exit a parking garage without paying. The officer detained the second motorcyclist. Meanwhile, Officer David Hammond stopped Appellant when he observed him drive the wrong way down a nearby one-way street. A certified driving record disclosed that Appellant was driving with a suspended license. Officer Hammond issued citations to Appellant for driving while operating privilege is suspended and theft of services. On August 21, 2012, Appellant, who was represented by counsel, proceeded to a summary trial before a magisterial district judge (MDJ). The MDJ found Appellant guilty of the above charges the same day. trial court, which held a de novo trial on June 26, 2013. Officers Vibbahn and Hammond testified on the Commo the cross-examination of Officer Hammond, the following exchange occurred: Q: And was [Appellant] the sole rider on the motorcycle? A: Yes, he was. Q: Did you testify in this matter at the summary trial level? [Assistant District Attorney]: Objection. Relevancy, your Honor. -2- J-S78042-13 inquiring. good faith basis for inquiring. I just want to ask a question with regards to something I believe might have been stated at the summary trial level. problematic. Is there a transcript as to what was said or done? due to a technical issue. the objection. (N.T. Trial, 6/26/13, at 35-36). At the conclusion of the trial, the court convicted Appellant of the and a fifty dollar fine. Appellant timely appealed.2 On September 16, 2013, counsel filed a petition to withdraw and an Anders brief on the basis that the appeal is frivolous. The standard of review for an Anders brief is well-settled. Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must: ____________________________________________ 2 statement, counsel filed notice of his intent to file an Anders brief pursuant to Rule 1925(c)(4). See Pa.R.A.P. 1925(b), (c)(4). The court filed a Rule 1925(a) opinion on August 1, 2013. See Pa.R.A.P. 1925(a). -3- J-S78042-13 (1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the appeal but w letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the cou [T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations and some quotation marks omitted). Further, our Supreme Court ruled in Santiago, supra, that Anders Santiago, supra at 360. Anders brief and petition to withdraw comply with conscientious examination of the record [and] determined that the appeal Lilley, supra at 997. Additionally, the record establishes that counsel served Appellant with a copy of the Anders brief and petition to withdraw, which advised Appellant of his right to retain new counsel, or to proceed pro se and raise additional issues to this Court. See id.; (see also Petition to Withdraw as Attorney of Record, 9/16/13, Exhibit 1, at 1). support the appeal to anything that arguably might Lilley, supra at 997; (see also Anders Brief, at 9-4- J-S78042-13 11). As noted by our Supreme Court in Santiago, the fact that some of tements arguably support the frivolity of the appeal does not violate the requirements of Anders. See Santiago, supra at 360-61. technical Anders requirements, we next will conduct our own independent review to determine whether the appeal is wholly frivolous. The Anders court abuse its discretion when it precluded specific testimony from a Commonwealth witness during cross examination? (Anders Brief, at 4). Hammond], during cross examination, to testify about his prior testimony in the matter at the [m]agisterial [c]ourt, was an abuse of discretion. Id. at 7). We disagree. scope and limits of cross-examination and that [an appellate] Court cannot Commonwealth v. Rivera, 983 A.2d 1211, 1230 (Pa. 2009), cert. denied, 560 U.S. 909 (2010) (citation and internal quotation marks omitted). the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, Commonwealth v. King, 959 A.2d 405, 411 (Pa. Super. -5- J-S78042-13 2008) (citation omitted). Our independent review of the record reveals that the trial court did not abuse its discretion or commit an error of law in this case. - hearing on the basis of relevance. (See N.T. Trial, 6/26/13, at 35-36). Specifically, the court explained: Unfortunately, all the court heard was that defense counsel wanted to ask a question with regard to something he believed It was not clear to the [court] that counsel wanted to show a prior inconsistent statement. Nor did defense counsel make any offer of proof for the record which would have allowed the court to further evaluate the proposed evidence and the basis on which it could be admitted. (Trial Court Opinion, 8/01/13, at unnumbered pages 1-2). Indeed, the Anders brief completely fails to explain the relevance of the proposed cross examination. (See Anders Brief, at 10-11). Ha Instead, Id. at 10). We disagree. Appellant has utterly failed to provide any pertinent citation to authority or to the record to support these conclusory arguments. (See id. at 10-11); see also Pa.R.A.P. 2119(a)-(c). -6- J-S78042-13 Further, our review of the record reveals that, while cross-examining summary trial testimony. (See N.T. Trial, 6/26/13, at 35). The Commonwealth objected to this question on the basis of relevance and something I believe might have been stated (Id.) (emphasis added). Not only did trial counsel not identify the substance of the alleged prior testimony, he failed to identify exactly how it was relevant. (See id. at 35-36). Hence, Appellant utterly fails to demonstrate that the trial court abused its discretion or committed an error of law when it limited his co -examination of Officer Hammond. See Rivera, supra at 1230; King, supra at 411. Therefore, based on our own independent review of the record, we relief. See See Rivera, supra at 1230; King, supra at 411. Additionally, we find no other non-frivolous issues that would merit relief. granted. -7- J-S78042-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/31/2014 -8-

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