J-S23006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAUL SOTO                                  :
                                               :
                       Appellant               :   No. 356 EDA 2017

           Appeal from the Judgment of Sentence December 15, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0013896-2014


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                                 FILED JUNE 26, 2018

        Appellant Raul Soto appeals from the judgment of sentence following

his guilty plea to aggravated assault, criminal conspiracy, firearms not to be

carried without a license, carrying firearms on a public street in Philadelphia,

and his nolo contendere plea to robbery.1 Appellant’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and its Pennsylvania

counterpart, Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

remand with instructions.

        The trial court set forth the facts of this case as follows:

        A summary of the facts admitted into evidence, and stipulated to
        by Appellant, during the guilty plea colloquy is as follows: On
        October 3, 2014, at around 3:08 a.m., the complaining witness,
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2702(a), 903, 6106(a)(1), 6108, and 3701(a)(1)(ii),
respectively.
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        Joseph Siriani, dropped off a friend at 1016 West Tioga Street in
        Philadelphia. As the friend went into a house, he waited outside
        in his vehicle. He then observed a white or Hispanic male, wearing
        a skeleton mask, approach his passenger vehicle window. The
        male, who was later identified as Appellant, pointed “a long
        shotgun type gun into his truck” and said, “Give me your money.”
        The Appellant then started going through the complainant’s center
        console and tried to grab the complainant’s car keys. The
        complainant responded and pushed the Appellant away. The
        complainant told the Appellant he did not have anything. Before
        the complainant drove away, the Appellant was able to grab the
        complainant’s cell phone from the center console.

        The complainant made a U-turn and watched the Appellant run
        into 1014 West Tioga Street. The complainant exited his vehicle,
        banged on the door of that property, and saw the Appellant look
        out the second floor window without any mask obstructing his
        face. Appellant proceeded to the first floor of the property and
        opened the front door. The complainant lunged at the Appellant
        and in turn the Appellant fired two shots in the complainant’s right
        leg. An unknown individual also began firing at the complainant
        from a second floor window.

        The complainant ran to his car and attempted to drive himself to
        Temple University Hospital.       Due to his injuries, he lost
        consciousness at Germantown Avenue and Ontario Street. Police
        Officers from the 25th District responded to the incident and
        observed the complainant bleeding profusely from the gunshot
        wound. The complainant was non-responsive so officers escorted
        him to the hospital for treatment.

        Video recovered from 1014 West Tioga Street revealed that the
        Appellant resides at that location. It was later confirmed that
        Appellant’s girlfriend, Yamarys Ramirez was also at the property
        that day. She later told the police that Appellant had fired a gun
        on that date. Following this incident, she stated Appellant took
        “both guns” from 1014 West Tioga Street, dropped her off at her
        home, and drove away.

        While at Temple Hospital, the complainant was interviewed by
        Detective Dusak[2] and shown a photo array. He identified the
        Appellant as the man who shot him. A search warrant was
        executed at 1014 West Tioga Street for the front second floor
____________________________________________


2   Detective Dusak’s first name is not in the certified record.

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       bedroom. No firearms were recovered but “94 live rounds of 7.62
       by 95 caliber along with an ammo drum and a banana magazine
       clip” were discovered. The complainant’s cell phone was also not
       recovered during the investigation. Based upon video surveillance
       submitted into evidence, it was stipulated between the
       Commonwealth and defense counsel that the Appellant appeared
       to pick up something the complainant had dropped.

Trial. Ct. Op., 9/14/17, at 1-3 (citations omitted).

       On April 4, 2016, Appellant pled guilty to aggravated assault, conspiracy

to commit aggravated assault, firearms not to be carried without a license,

and carrying firearms on a public street in Philadelphia. N.T., 4/4/16, at 3.

Appellant also pled nolo contendere to robbery and the trial court found him

guilty. Id. at 3, 17.

       At the sentencing hearing, on September 12, 2016, Appellant argued

that he did not intend to rob the complainant but was only attempting to scare

him.    The trial court requested additional information and continued the

sentencing hearing. N.T., 9/12/16, at 14-20. On December 15, 2016, the

court reconvened the sentencing hearing and sentenced Appellant to an

aggregate term of nine to twenty years’ incarceration.3 Sentencing Order,

12/15/16.
____________________________________________


3 The trial court sentenced Appellant to five to ten years’ incarceration for
aggravated assault, four to ten years’ incarceration for conspiracy, one year
and six months to 3 years’ incarceration for firearms not to be carried without
a license, one to two years’ incarceration for carrying firearms on public street
in Philadelphia, and five to ten years’ incarceration for robbery. All sentences
were to run concurrently, except for the conspiracy and aggravated assault
sentences, which were to run consecutively.

The trial court found that Appellant had violated his probation on a separate
case and imposed a concurrent one to two years’ incarceration on that case.
See Docket No. CP-51-CR-9275-2011.

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       On December 23, 2016, Appellant filed a timely post-sentence motion

stating “Your Honor sentenced [Appellant] on a violation of probation (CP-

9275-2011) to one—two years SCI concurrently with the sentence of 9-20

years SCI imposed on the above captioned matter. . . . The sentence imposed

was an abuse of the [c]ourt’s discretion and illegal.”      Post Sentence Mot.,

12/23/16, at ¶¶ 1-2. The trial court denied Appellant’s motion on January 4,

2017. Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.4

    Counsel has submitted an Anders/Santiago brief in this appeal, which

identifies the following issue on appeal:

       1. Whether there are any issues of arguable merit that could be
          raised on direct appeal presently before this Court and whether
          the appeal is wholly frivolous[.]

Anders/Santiago Brief at 4 (full capitalization omitted). Appellant has not

filed a pro se brief or a counseled brief with new, privately-retained counsel.

       Because counsel has filed an Anders/Santiago brief, we must first

address counsel’s request to withdraw before reviewing the merits of the

appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)

(en banc). To be permitted to withdraw, counsel must:

          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)
____________________________________________


4 In his Rule 1925(b) statement, Appellant raises one issue: “The sentence
was excessive and the [t]rial [c]ourt abused discretionary aspects of
sentencing.” Statement of Errors Complained of on Appeal, 3/24/17.

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          furnish a copy of the brief to the defendant; and 3) advise
          the defendant that he or she has the right to retain private
          counsel or raise additional arguments that the defendant
          deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted).

       Here, counsel has not complied with the procedural requirements of

Anders/Santiago. While counsel attached to his brief a motion to withdraw

as counsel and a letter addressed to the Appellant, these documents have not

been filed with this Court.5 See Anders/Santiago Brief at Appendix D; see

also Commonwealth v. Nischan, 928 A.2d 349, 352 (Pa. Super. 2007)

(“The first . . . requirement[] is that counsel file with this Court a petition

for leave to withdraw averring that, after making a conscientious

examination of the record, counsel finds the appeal to be wholly frivolous.”)

(citation omitted; emphasis added).

       Accordingly, because counsel has failed to meet the first requirement of

Anders, we remand this matter with instructions. Upon remand, counsel for

Appellant may file either a proper petition to withdraw from representation or

an advocate’s brief, if he so desires. Should counsel decide to file a petition

to withdraw, he must comply with the procedural requirements for seeking

leave to withdraw by attaching to his petition to withdraw a copy of a letter

advising Appellant of counsel’s intent to withdraw and Appellant’s rights to

____________________________________________


5 We further note that although Appellant attached a motion to withdraw and
the letter to Appellant, they do not contain a time stamp or a certificate of
service. See Anders/Santiago Brief at Appendix D.

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proceed pro se or with private counsel.         Counsel shall also ensure that

Appellant has been furnished a copy of counsel’s Anders/Santiago brief.

Counsel must file his petition to withdraw or advocate’s brief no later than

thirty days of the date of this decision. In the event that counsel files a petition

to withdraw, Appellant shall have thirty days to file a response in this Court

after service of the petition to withdraw, letter, and brief.

      Case remanded with instructions. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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