Commonwealth v. Burwell

42 A.3d 1077

2012 PA Super 55

COMMONWEALTH of Pennsylvania, Appellee

v.Ronald BURWELL, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 8, 2010.

Filed March 1, 2012.

Nicole D. Sloane, Public Defender, Erie, for appellant.

Robert A. Sambroak, Jr., Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: PANELLA, ALLEN, and LAZARUS, JJ.

OPINION BY LAZARUS, J.:

Ronald Burwell appeals from his judgment of sentence imposed after a jury found him guilty of aggravated assault ¹ (causes serious bodily injury) for twice striking the victim, a caretaker at the Erie County Amtrak station, in the face and wrist with an electric guitar.² The victim suffered a broken wrist and cracked eye socket; he required seven stitches as a result of the incident and suffered numbness on the left side of his face for two months following the assault. At the time of trial he was still suffering facial tenderness.

The Honorable Shad Connelly applied the deadly weapon enhancement ³ and sentenced Burwell to a high-end standard-range sentence of 120–240 months' ⁴ imprisonment (with credit for time served), with costs and restitution to the victim in the amount of $2,800 for lost wages.⁵ Burwell filed a post-sentence motion asking the court to reconsider/reduce his sentence. Burwell filed post-sentence motions which were denied on June 8, 2009, without a hearing or accompanying Rule 1925(a) opinion, by the trial court.

On July 1, 2009, Burwell filed a timely notice of appeal; at the same time counsel filed a statement of intent to file an Anders/McClendon⁶ brief, in lieu of a Pa.R.A.P. 1925(b) statement, declaring his intent to withdraw on direct appeal after finding there were no non-frivolous issues. SeePa.R.A.P. 1925(c)(4). Burwell has filed a supplemental pro se appellate brief raising five issues.⁷ Judge Connelly indicated that “No Memorandum Opinion [would] be filed” for purposes of appeal in contravention of our Rules of Appellate Procedure. SeePa.R.A.P. 1925(a)(1) (requiring trial judges to “forthwith file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.”).

Because we conclude that non-frivolous issues have been raised on appeal, we remand again for counsel to prepare an advocate's brief, in accordance with the dictates of this decision, and deny her petition to withdraw.

Discussion

This case presents a tortured appellate procedural history. In a prior memorandum decision, our Court remanded this case to Judge Connelly for the preparation of a Pa.R.A.P. 1925(a) opinion ⁸ to explain, among other things, his explanation for imposing Burwell's sentence and to address Burwell's multiple claims of trial court error with regard to denial of due process (failure to give a jury charge for simple assault; failure to participate in jury selection; failure to depose opposing parties). Commonwealth v. Burwell, 1111 WDA 2009, 996 A.2d 536 (Pa.Super.) (unpublished memorandum decision) (filed March 4, 2010). Finally, and most importantly, we specifically instructed Judge Connelly to address Burwell's weight of the evidence claim, a claim which this Court may not decide based upon the cold record. Id. at 2.

The trial court then returned the record to this Court, indicating that it is “unnecessary and would be an exercise in futility for [it] to file an Opinion in this case as to the fifteen (15) issues which appellate counsel has conceded lack merit and are frivolous.” Trial Court Opinion, 3/10/2010. In addition, the trial judge instructed us that it is “ incumbent upon the appellate court to review [counsel's Anders/McClendon]⁹brief and, then and only then if it believes there are arguably meritorious issues, remand for a 1925(b) Statement and lower court Opinion.” Id. (emphasis in original).¹⁰

In response to the trial court's opinion, our Court issued a memorandum decision, which ultimately remanded the matter once again, stating:

In fact, “once counsel has satisfied the first two requirements to withdraw under Anders, it is then this Court's duty to conduct its own review of the trial court's proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Wright, 846 A.2d 730, 736 (Pa.Super.2004) (emphasis added).

Despite the trial court's belief that it is incumbent upon this Court to first review all claims raised by counsel and Burwell and then find that there are any “arguably meritorious issues” before we may return this case to the trial court, the court's stated standard is, in fact, incorrect. Much has been said regarding the distinction between the standard applied when withdrawing under Anders (on direct appeal) and withdrawing under Turner/Finley (on collateral appeal). The main difference being that a defendant is entitled to counsel on direct appeal; as a result the standard to withdraw is more stringent. See Commonwealth v. Wrecks, 931 A.2d 717 (Pa.Super.2007). It requires that counsel and the reviewing court determine that the issues raised are “wholly frivolous.” Wright, supra. This is a higher standard to prove than showing that something has no merit. Commonwealth v. Harris , 553 A.2d 428 (Pa.Super.1989) (“the ‘no-merit letter’ requirements are clearly intended to be less arduous and formalistic than the Anders brief requirements[.]”).

Therefore, in light of the correct standard, and mindful of our role to review the issues raised on appeal, we remain compelled to deny counsel's petition and remand. We cannot say with certainty that there are no non-frivolous issues raised by Burwell or counsel. Wrecks, supra. Because of that finding, we remand this case for counsel to prepare a Rule 1925(b) statement of matters complained of on appeal and an advocate's brief and for the trial court to prepare a thorough Rule 1925(a) opinion addressing the issues counsel raises in his Rule 1925(b) statement.

Motion to withdraw denied. Case remanded with instructions. Jurisdiction relinquished.

Commonwealth v. Burwell, 1111 WDA 2009, 4 A.3d 701 (filed June 28, 2010) (Pa.Super.2010).

Subsequently, the Public Defender filed an “Application for Relief Invoking Plenary Jurisdiction” with the Pennsylvania Supreme Court seeking that the Supreme Court remand the case to our Court “to satisfy the panel's responsibility of making a full examination of the proceedings and an independent judgment as to whether the appeal is in fact wholly frivolous.” The Supreme Court denied the application on August 5, 2011. On November 7, 2011, defense counsel filed a Pa.R.A.P. 1925(b) statement of matters complained of on appeal in compliance with our prior memorandum decision. In the Rule 1925(b) statement, counsel raised 17 issues.¹¹ Subsequently, the trial court issued a one-paragraph “Memorandum Opinion” stating:

As to defense counsel's Statement of Matters Complained of on Appeal ¹ which the Pennsylvania Superior Court ordered her to advance in its Memorandum filed June 8, 2010, all of these issues were appropriately, cogently, and accurately addressed with cites to the record and law in the Anders Brief for appellant filed by defense counsel on August 31, 2009.

n.1 These are the issues the Defendant raised pro se on appeal even though he was represented by counsel, and the Pennsylvania Superior Court, in clear contravention of the Pennsylvania Supreme Court's holding in Commonwealth v. Devine as to hybrid representation and pro se filings by a defendant, directed defense counsel to advance those pro se issues against her informed judgment.

Trial Court Memorandum Opinion, 11/10/2011.

Needless to say, after this protracted procedural history, spanning more than two and one-half years, we have no more support from the trial court for Burwell's sentence or explanation regarding the issues of error raised on appeal than we did in 2009. Judge Connelly's reliance, after our second remand, on the arguments set forth in counsel's Anders brief suggests nothing less than an unacceptable shirking of his judicial obligations. The rules of appellate procedure do not direct trial courts to submit opinions simply as an exercise in expository writing. Rather, the trial court opinion is a necessary component of appellate review, providing the reviewing court with a reasoned basis for the lower court's decisions and enabling it to engage in a thorough consideration of the issues raised by an appellant. Here, Judge Connelly's refusal to comply with our directives has made the resolution of this case unnecessarily difficult and protracted.

The only guidance we have for Judge Connelly's sentence in this matter is contained in the notes of testimony from Burwell's sentencing hearing. See N.T. Sentencing, 4/29/2009, at 8–10.¹² However, even with the trial court's on-the-record explanation for Burwell's sentence at his hearing, we have many unexplained non-sentencing issues that have been raised on appeal. ¹³ We shall, however, do our best to assess counsel's request to withdraw and determine the merits of Burwell's claims.

Anders Request

Under Anders and its Pennsylvania progeny, in order to withdraw, counsel must (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court's attention. Commonwealth v. McFarland , 562 A.2d 369 (Pa.Super.1989). The determination of whether the appeal is frivolous remains with the court. McClendon, supra, at 1186.

Commonwealth v. Gee, 394 Pa.Super. 277, 575 A.2d 628, 629 (1990).

In this case, counsel has complied with the Anders requirements. S...