Com. v. Cameron, M.

• Court: Superior Court of Pennsylvania
• Decided: March 8, 2016
• Docket: 2010 EDA 2014
• Status: Unpublished

Opinion

J-S01011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MALIK CAMERON, : : Appellant : No. 2010 EDA 2014

Appeal from the Judgment of Sentence June 4, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0002970-2013; MC-51-CR-0001492-2013

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

JUDGMENT ORDER BY MUSMANNO, J.: FILED MARCH 08, 2016

Malik Cameron (“Cameron”) appeals from the judgment of sentence

entered following his conviction of aggravated assault, possession of an

instrument of crime (“PIC”), and possession of a firearm by a prohibited

person. Counsel for Cameron has filed an appellate brief that includes the

following statement:

Counsel initially asserted four claims of error on appeal[,] but contends that particular attention must be focused on the issue presented in this brief under question “4” (regarding the [trial] court’s alleged improper consideration of impermissible sentencing factors). However, upon review of the [trial] court’s [O]pinion and upon further review of the case law and the record, counsel has concluded that all questions present wholly meritless claims. Accordingly, counsel has briefed all questions …. Counsel often refers to the [trial] court’s Opinion (the Rule 1925(a) Opinion) which is accurate and dispositive of [Cameron’s] claims and, therefore, files this Anders[1] brief on behalf of [Cameron’s] claims and, therefore, files this Anders brief on behalf of [Cameron].

1 Anders v. California, 386 U.S. 738 (1967). J-S01011-16

Brief for Appellant at 8 n.1 (footnote added).

“When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). The procedural requirements for withdrawal

require counsel to (1) petition for leave to withdraw and state that, after

making a conscientious examination of the record, counsel has concluded

that the appeal is frivolous; (2) provide a copy of the Anders brief to the

defendant; and (3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court’s attention.2 Commonwealth v. Zeigler, 112

A.3d 656, 659 (Pa. Super. 2015).

Our review of the record discloses that counsel has not filed with this

Court a petition for leave to withdraw, and we find no notation on the docket

of such a filing. The Reproduced Record includes a copy of a letter

purportedly sent by counsel to Cameron advising him of counsel’s belief that

2 This Court’s decision in Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) and its progeny require that “[c]ounsel also must provide a copy of the Anders brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation omitted). The brief must be accompanied by a letter that advises the client of the option to “(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[‘]s attention in addition to the points raised by counsel in the Anders brief.” Id.

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the appeal is frivolous, and advising Cameron of his right to proceed pro se

or to retain private counsel, and to raise any additional issues that Cameron

deems worthy of the Court’s attention. There is no petition to withdraw

included in the Reproduced Record.

“Appellate courts may only consider facts which have been duly

certified in the record on appeal. An item does not become part of the

certified record by simply copying it and including it in the reproduced

record.” Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995).

As such, we cannot conclude that counsel has not complied with the

appropriate procedure by which to withdraw from representation.

Accordingly, we hereby order counsel to file with this Court, within

thirty days from the filing of this Order, a petition to withdraw from

representation and the appropriate documentation evidencing counsel’s

compliance with Millisock. Panel jurisdiction is retained.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/8/2016

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