In re BB..

• Decision Date: 24 February 2015
• Docket Number: No. 22 EDA 2014,J-S06012-15,22 EDA 2014
• Parties: IN RE: B.B., A MINOR APPEAL OF: B.B., A MINOR
• Court: Pennsylvania Superior Court

IN RE: B.B., A MINOR

APPEAL OF: B.B., A MINOR

J-S06012-15
No. 22 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 24, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Dispositional Order Entered December 12, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): 2013-304

BEFORE: BENDER, P.J.E., LAZARUS, J. and FITZGERALD, J.^*

MEMORANDUM BY BENDER, P.J.E.:

Appellant, B.B., appeals from the December 12, 2013 dispositional order committing him to a juvenile detention facility, following the court's adjudicating him delinquent of the offenses of rape, aggravated indecent assault, and aggravated assault. Appellant seeks to raise a multitude of claims on appeal. Additionally, his counsel, Timothy Peter Wile, Esq., has filed a petition to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we agree with counsel that Appellant's claims are frivolous. Accordingly, we affirm Appellant's dispositional order and grant counsel's petition to withdraw.

Appellant was adjudicated delinquent of the above-stated offenses based on the following facts:

C.P. and [Appellant] were students at Wissahickon High School, Montgomery County, PA, and had been acquainted for approximately three or four years at the time the subject incident occurred. Their relationship was characterized as one of

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friends. On the afternoon of April 29, 2013, the students were both in art class when [Appellant] asked C.P. if she wanted to go for a walk. C.P. admitted that she asked her teacher for a note to use the bathroom in order to leave class, and the two walked to the audion, a small auditorium, at the school. In the few minutes it took to walk from the classroom to the audion, C.P. testified that [Appellant's] speech turned "mumbly" and his eyes were "red." [Appellant] pushed C.P. onto the steps at the stage, pulled down her pants, pulled down his pants, and raped and sexually assaulted her. C.P. tried to get away, but [Appellant] held her. This incident lasted approximately five [to] six minutes, after which [Appellant] "ran away." C.P. immediately went to the school nurse's office, where she ultimately told the nurse of her rape by [Appellant].

Juvenile Court Opinion (JCO), 6/12/14, at 5 (citations to the record omitted).

After reporting the rape to the school nurse, C.P. "was taken to a hospital where her injuries were determined [to be] severe, some of the wors[t] the hospital doctor on duty and staff had ever seen, and required an epidural (typically used for childbirth) so as to perform an examination." JCO at 15 (citations to the record omitted). Ultimately, C.P. required sutures to repair the injuries to her vagina. See N.T. Adjudication Hearing, 10/8/13, at 14.

Based on these facts, the juvenile court adjudicated Appellant delinquent of the above-stated offenses. Prior to Appellant's dispositional hearing, he retained new counsel, Paul Tressler, Esq.¹ Following that proceeding, a dispositional order was entered committing Appellant to the

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Northwestern Academy's Safety, Empathy, Treatment (SET) program. On Appellant's behalf, Attorney Tressler filed both a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Therein, Attorney Tressler raised 22 distinct claims. On June 12, 2014, the juvenile court issued a Rule 1925(a) opinion. On July 24, 2014, Attorney Tressler petitioned to withdraw from representing Appellant, which the juvenile court granted. Attorney Wile of the Montgomery County Office of the Public Defender then entered his appearance for Appellant on July 17, 2014. On October 15, 2014, Attorney Wile filed a petition to withdraw and a lengthy Anders brief. Attorney Wile also filed with this Court copies of letters he sent to both Appellant and Appellant's mother, informing them that he was seeking to withdraw and advising them that Appellant could proceed pro se on appeal or retain private counsel. On October 24, 2014, Appellant's mother and father filed a document entitled "'Urgent' Petition for Reconsideration of Additional Facts Filed by Prior Counsel." Therein, Appellant's parents asked that this Court "reconsider" the issues raised in Appellant's Rule 1925(b) statement and reject Attorney Wile's petition to withdraw.

"When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)).

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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 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.

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." Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014). After confirming that counsel has satisfied these requirements, this Court must then conduct its own review of the record and independently determine whether the appeal is, in fact, wholly frivolous. Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).

Instantly, Attorney Wile's Anders brief provides a detailed summary of the procedural history and facts of Appellant's case with citations to the record. It also includes a discussion of each of the 22 issues Appellant presented in his Rule 1925(b) statement, and an explanation of Attorney

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Wile's conclusion that an appeal on Appellant's behalf would be wholly frivolous. Attorney Wile supports his rationale with citations to the record, as well as relevant case law. He has also certified in his petition to withdraw that he sent a copy of his Anders brief to Appellant, along with letters advising both Appellant and his mother of the rights enumerated in Nischan, 928 A.2d at 353. Therefore, we conclude that Attorney Wile has complied with the requirements for withdrawal. Accordingly, we will now independently review the merits of Appellant's assertions, and also determine whether there are any other issues he could arguably present on appeal.

In Attorney Wile's Anders brief, he divides the 22 claims presented in Attorney Tressler's Rule 1925(b) statement into the following four general issues:

[(I)] Is [Appellant's] adjudication of delinquency for the offences [sic] of rape, aggravated indecent assault, and aggravated assault supported by legally sufficient evidence of record?

[(II)] Did the Commonwealth's attorney engage in prosecutorial misconduct?

[(III)] Did the juvenile court's errors deprive the juvenile of a fair trial?

[(IV)] Was [Appellant's] adjudication counsel ineffective, thus entitling [Appellant] to a new adjudication hearing on all of the charges?

Anders Brief at 5. We will address each of these issues in turn.

I. Sufficiency of the Evidence

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After carefully reviewing the certified record, Attorney Wile's Anders brief,² the juvenile court's opinion, and the applicable law, we conclude that the decision of the Honorable R. Stephen Barrett of the Court of Common Pleas of Montgomery County accurately disposes of Appellant's challenge to the sufficiency of the evidence. See JCO at 14-17. Accordingly, we adopt Judge Barrett's rationale as our own in concluding that Appellant's challenge to the sufficiency of the evidence is frivolous.

II. Prosecutorial Misconduct

Appellant's general claim of prosecutorial misconduct encompasses the following six discrete claims:

1. The Commonwealth withheld materials related to scientific analysis of evidence submitted to a laboratory via a "Rape Kit, which, upon information and belief, was exculpatory;["]

2. The Commonwealth provided inaccurate video representations of the physical actions of [Appellant] and the alleged Victim immediately following the alleged incident, which were misleading in that these representations were in "slow motion" and as such it was impossible to determine whether the person[s] depicted were engaged in normal ambulation, slow walking, accelerated walking, running or some combination thereof;

3. The Commonwealth failed to preserve and then produce the alleged Victim's school "Agenda Book[,"] knowing [the] same to be a critical piece of potentially exculpatory evidence as to the alleged Victim's departure time from a classroom immediately prior to the alleged incident, her reason for leaving, and her truthfulness. Further, knowing the existence of said Agenda

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Book, and its import, the Commonwealth failed to take the necessary precautions to preserve the evidence for trial. Instead, critical pages were removed from the book, specific to the time in question. Upon discovery of the missing pages [by] the defence [sic], copies of the pages were obtained, however, the[y] were excluded as evidence at trial because the "Agenda Book" from which they had been torn had been

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