Commonwealth v. Washington

63 A.3d 797, 2013 Pa. Super. 51, 2013 WL 936216, 2013 Pa. Super. LEXIS 139
CourtSuperior Court of Pennsylvania
DecidedMarch 12, 2013
StatusPublished
Cited by128 cases

This text of 63 A.3d 797 (Commonwealth v. Washington) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Washington, 63 A.3d 797, 2013 Pa. Super. 51, 2013 WL 936216, 2013 Pa. Super. LEXIS 139 (Pa. Ct. App. 2013).

Opinion

OPINION BY

STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Montgomery County following Appellant’s conviction on the charges of possession with the intent to deliver a controlled substance, possession of a controlled substance, firearms not to be carried without a license, and felon not to possess a firearm.1 In addition to this appeal, appellate counsel has filed a petition seeking to withdraw his representation and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (Pa. 2009), which govern a withdrawal from representation on direct appeal. After a careful review, we affirm and grant appellate counsel’s petition to withdraw.

The trial court has aptly set forth the relevant facts and procedural history, in part, as follows:

On August 6, 2010, at approximately 2:45 p.m., Norristown police officers were dispatched to the area of Oak and Green Streets, Montgomery County, for an armed suspect. According to dispatch, the subject was wearing a blue shirt, tan shorts and had a beard and racked a round into the chamber of a gun before getting into a green Volvo. This information was called into dispatch by Detective Michael Fedak, a Montgomery County detective. Detective Fedak had received the information from a reliable confidential informant. County dispatch also advised that Nor-ristown Police Department vehicle 5233, which was being driving by Officer Kathleen Kelly, was driving behind the green Volvo before the suspect got into the vehicle. Officer Kelly drove away before the call was dispatched.
Officer Kelly advised other Norris-town police officers that the windows on the green Volvo had a medium tint and that the driver was a black male with facial hair on his chin. He was also wearing a white tee shirt.
Eleven minutes after the call was dispatched, Officer Gerald DelGrosso observed the green Volvo matching the description provided through dispatch. Officer DelGrosso conducted a vehicle stop.
There were three subjects in the vehicle and all were searched, including Appellant. The search of Appellant’s person revealed that he had a Luger P85 firearm in his waistband, which was concealed by his shirt. The gun had one 9 millimeter round in the chamber and 14 in the magazine. A sandwich bag containing five baggies of suspected cocaine was found in his right, front pocket. Subsequently, prior to placing Appellant into a holding cell, Officer Kelly recovered $1,374 from his front, left pocket.
On November 3, 2010, defense counsel filed an Omnibus Pre-Trial Motion, including a Motion to Suppress. On December 14, 2010, counsel also filed a Motion to Compel Disclosure of Confi[800]*800dential Informant. On February 22, 2011, a Suppression Hearing was held at which time all pretrial motions were heard. After the [lower court] put its findings of fact on the record and announced its conclusions of law, both the Motion to Suppress and the Motion to Compel Disclosure of Confidential Informant were denied.
On March 23, 2011, a Stipulated Bench Trial, [at which the affidavit of probable cause was admitted into evidence,] was conducted, at the conclusion of which Appellant was found guilty of the aforementioned charges and sentenced to an aggregate of 5 to 10 years’ imprisonment.

Trial Court Opinion filed 6/15/11 at 1-3 (citations to record omitted) (footnote omitted).

Appellant did not file post-sentence motions; however, on April 21, 2011, he filed a timely, counseled notice of appeal. The trial court directed Appellant to file a Pa. R.A.P. 1925(b) statement, Appellant complied, and the trial court filed an opinion.

On July 13, 2011, Appellant’s attorney discontinued Appellant’s direct appeal; however, on July 20, 2011, after new counsel, Assistant Public Defender Timothy Peter Wile, was appointed, Appellant filed a counseled motion seeking the reinstatement of his direct appeal, which this Court granted on November 23, 2011. Thereafter, as indicated swpra, Assistant Public Defender Wile filed a petition to withdraw and submitted an Anders/Santiago brief.

Preliminarily, we must address counsel’s petition to withdraw. Court-appointed counsel who seeks to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous 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. 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.

Commonwealth v. Santiago, 602 Pa. at 178-179, 978 A.2d at 361. Our Court must then conduct its own review of the proceedings and make an independent judgment to decide whether the appeal is, in fact, wholly frivolous. Id. at 359 (citation omitted).

In the case sub judice, counsel has complied with the dictates of Anders and Santiago, having made a conscientious examination of the record, controlling case law, and applicable statutes. Counsel has also identified for our Court the issues and supporting testimony that may arguably be raised on appeal. Furthermore, counsel has notified Appellant of his request to withdraw, furnished him with a copy of the Anders/Santiago brief, and advised him that he may retain new counsel, proceed pro se, or raise any additional points that he deems worthy of our consideration.2 We will now conduct our independent review of the issues raised by counsel and determine, using our own judgment, whether the appeal is wholly frivolous.

Appellant first claims the trial court abused its discretion in denying his motion to compel disclosure of the confidential informant, who informed Detective [801]*801Fedak that Appellant was armed with a loaded handgun and had entered the green Volvo.

“Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant’s identity is confined to abuse of discretion.” Commonwealth v. Withrow, 932 A.2d 138, 140 (Pa.Super.2007).

Indeed, where the informant was an eyewitness to the [crimes] in question, the role of the trial judge’s discretion is established by rule of court. See Pa. R.Crim.P. 573(B)(2)(a)(i).3 Where the informant was not an eyewitness, the extent of the court’s discretion is specified more broadly by case law. As noted by [this Court]:
We believe that no fixed rule with respect to disclosure [of the confidential informant’s identity] is justifiable.

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Cite This Page — Counsel Stack

Bluebook (online)
63 A.3d 797, 2013 Pa. Super. 51, 2013 WL 936216, 2013 Pa. Super. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-washington-pasuperct-2013.