Com. v. Cook, A. (memorandum)

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J-S36006-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ACQUIL COOK Appellant No. 802 EDA 2013 Appeal from the Judgment of Sentence March 8, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003961-2011 BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 09, 2014 Appellant, Acquil Cook, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for three (3) counts of robbery and one (1) count of 1 We affirm and grant 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 has filed a petition to withdraw his representation pursuant to Anders v. California, 386 U.S. ____________________________________________ 1 18 Pa.C.S.A. §§ 3701, 907, respectively. _____________________________ *Former Justice specially assigned to the Superior Court. J-S36006-14 738, 87 S.Ct. 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. compliance with these requirements is sufficient. Substantial Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in 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 argument that counsel develops in a merits brief. To ____________________________________________ 2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). -2- J-S36006-14 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 extensively reviewed the record, his previous conversations with trial counsel, police paperwork, and notes of testimony. Counsel indicated in a letter he sent to Appellant that counsel had filed a petition to withdraw as counsel and provided Appellant with a copy of the Anders pro se additional points deemed worthy of consideration. Counsel further informed -3- J-S36006-14 Appellant that he must act promptly. Counsel also provided Appellant with case discovery and a copy of the notes of testimony. 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 the record that may arguably support the issues raised on appeal, and he provides citations 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 issue raised in the Anders brief: IS THE RECORD DEVOID OF ANY ISSUE HAVING ARGUABLE MERIT THAT COULD BE RAISED ON DIRECT (Anders Brief at 6).3 After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Michael comprehensively discusses and properly disposes of the question presented. (See Trial Court Opinion, filed July 11, 2013, at 2-4) (finding: (1) Appellant ____________________________________________ 3 In the argument section of the brief, counsel frames the issue Appellant Anders Brief at 10). -4- J-S36006-14 and cohort entere bedroom, and Appellant demanded valuables after drawing BB gun; Appellant began to place items belonging to victims into backpack; when victims realized weapon was not actual firearm, they subdued Appellant and called police; by brandishing simulated gun that appeared to be real, Appellant initially instilled in victims fear of serious bodily harm; law does not require victims to know if gun used in robbery was real or operable to sustain conviction of first-degree robbery; evidence was sufficient to convict Appellant of firstrobbery involving replica firearm triggers mandatory minimum sentence per 42 Pa.C.S.A. § 9712).4 Accordingly, we affirm on the basis of the trial court ____________________________________________ 4 Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in which the Court expressly held that any fact increasing the mandatory minimum sentence for a crime is considered an element of the crime to be submitted to the fact-finder and found beyond a reasonable doubt. Here, the court imposed the mandatory minimum sentence on g minimum five (5) year sentence for robbery conviction where defendant visibly possessed firearm or replica of firearm that placed victim in reasonable fear of death or serious bodily injury). Under Section 9712(b), the court determines applicability of the mandatory minimum at sentencing by a preponderance of the evidence (arguably in violation of Alleyne). In the present case, however, the court found Appellant guilty of robbery by means of threatening another with or intentionally putting another in fear of immediate serious bodily injury. See 18 Pa.C.S.A. § 3701(a)(1)(ii). The only evidence of record indicating Appellant threatened the victims with a handgun. Accordingly, by virtue of convicting Appellant of robbery under Section 3701(a)(1)(ii), the court found beyond a reasonable doubt that Appellant visibly possessed a replica of a firearm during the commission of a (Footnote Continued Next Page) -5- J-S36006-14 granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 (Footnote Continued) _______________________ crime of violence that placed the victims in fear of immediate serious bodily sentence. See Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of mandatory minimum sentence per 42 Pa.C.S.A. § 9712.1 mandating five year minimum sentence for defendant convicted of possession with intent to deliver when at time of offense defendant was in physical possession or control of firearm was proper, where jury determined beyond reasonable doubt that appellant possessed firearms in connection with drugs); Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (explaining challenge to application of mandatory minimum sentence is non-waivable challenge to legality of sentence which, assuming proper jurisdiction, this Court can raise sua sponte). -6-

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