Opinion
J-S71041-16 No. 2759 EDA 2015
10-26-2016
COMMONWEALTH OF PENNSYLVANIA v. DARLA GREEN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 27, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002034-2015 BEFORE: BOWES, PANELLA, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Darla Green, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas after her bench trial conviction of retail theft. Appellant's counsel has filed a petition to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). Counsel's brief presents the sole issue of whether there was insufficient evidence to support Appellant's conviction. We grant counsel's petition to withdraw and affirm the judgment of sentence.
We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 1/7/16, at 1-3. Counsel identified the following issue in the Anders brief:
Was the evidence insufficient to support [A]ppellant's conviction for retail theft, graded as a misdemeanor of the first degree?Anders Brief at 3.
As a prefatory matter, we review counsel's petition to withdraw.
This Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under Anders , counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief 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 reasons for concluding 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. Orellana , 86 A.3d 877, 879-80 (Pa. Super. 2014) (some citations omitted). If counsel complies with these requirements, "we will make a full examination of the proceedings in the lower court and render an independent judgment [as to] whether the appeal is in fact 'frivolous.'" Id. at 882 n.7 (citation omitted).
Santiago , 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right 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."
Instantly, counsel provided a factual and procedural summary of the case with citations to the record. Anders Brief at 4-6. Counsel explained the relevant law and discussed why Appellant's issue is meritless, noted that counsel made a conscientious examination of the record, and determined the appeal is wholly frivolous. Id. at 9-14. Counsel for Appellant provided her with a copy of the Anders brief and a letter advising Appellant of her rights. Counsel's Pet. to Withdraw, 4/18/16. In light of the foregoing, we hold counsel has complied with the requirements of Santiago. See Orellana , 86 A.3d at 879-80. Appellant has not filed a pro se or counseled brief. We now examine the record to determine whether the appeal is wholly frivolous. See id. at 882 n.7.
After careful consideration of the Anders brief, the record, and the decision of the trial court, we affirm on the basis of the trial court's opinion. See Trial Ct. Op. at 3-5 (summarizing evidence as follows: Appellant intended to carry away the sneakers from Macy's when she left the store's shoe department with the sneakers on her feet, passed ten to fifteen cash registers without paying for the shoes, and attempted to exit the door when security staff stopped her; Appellant's actions constituted the requisite taking possession of and carrying away of retail merchandise; Appellant's claim that there was no indication of the shoes' ownership because of a lack of a price tag was not credible, as the shoes had a store tag and a SKU number; even if the shoes did not have a price tag, Appellant's allegation that new shoes in a store's shoe department without a price tag are free to be taken is not a cognizable defense; the value of the shoes was $195 and, thus, exceeded $150 to be graded as a first-degree misdemeanor). Our independent review of the record reveals no other issues of arguable merit. See Orellana , 86 A.3d at 882 n.7. Accordingly, we grant counsel's petition to withdraw and affirm the judgment of sentence.
The Commonwealth did not file a brief in this appeal.
Counsel's petition to withdraw granted. Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/26/2016
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