The opinion
J-S38007-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH WILLIAM BECOTE :
:
Appellant : No. 3216 EDA 2023
Appeal from the Judgment of Sentence Entered November 9, 2023
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0002029-2022
BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MARCH 24, 2025
Appellant, Joseph William Becote, appeals from the judgment of
sentence imposed on November 9, 2023, in the Court of Common Pleas of
Delaware County. Appellant challenges the sufficiency and the weight of the
evidence supporting his conviction. Before this Court, Stefanie McArdle,
Esquire, has petitioned to withdraw as Appellant’s counsel and filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
deny counsel’s application to withdraw and direct counsel to file either a
compliant Anders/Santiago brief or an advocate’s brief.
The underlying factual and procedural background can be summarized
as follows.
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* Former Justice specially assigned to the Superior Court.
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[O]n February 8, 2022, around four o’clock in the morning, Officer
Elijah Brown of the Upper Darby Township Police Department was
dispatched to a call for the ongoing problem of a trespasser
sleeping in the stairwell of the apartment building. As Officer
Brown tried to approach [Appellant] to contact him, he ran away.
Officer Brown ran after him, and after verbal commands, he was
finally able to stop [Appellant]. Officer Brown told [Appellant] he
was not permitted to be on the premises. When Officer Brown got
back to the station, he searched the police department records
and found two prior incident reports where [Appellant] was
apprehended at the same apartment building and advised each
time that he was not permitted to be on the premises.
Trial Court Opinion, 1/31/24, at 4-5.
On October 17, 2023, after a bench trial, Appellant was found guilty of
being a defiant trespasser, 18 Pa.C.S.A. § 3503(b)(1)(i). On the same day,
the trial court sentenced Appellant to 90 days confinement with credit for time
served and that he would be released once his address was verified.
Appellant timely filed a post-sentence motion, challenging the weight of
the evidence and the legality of his sentence. Following a hearing on
November 9, 2023, the trial court amended Appellant’s sentence to note that
his address was verified in open court. Thereafter, on November 17, 2023,
the trial court denied Appellant’s post-sentence motion without reference to
or explanation for the amended sentence.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925. In his Rule 1925(b) statement, Appellant raised two issues
(sufficiency and weight) pertaining to his defiant trespasser conviction. See
Statement of Errors Complained of on Appeal, 1/11/24, at 4-5.
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On appeal, Appellant alleges that the evidence was insufficient to convict
him of disorderly conduct and that the verdict was against the weight of the
evidence.
Before addressing the merits of the claims, we must address counsel’s
application to withdraw. In doing so, we are guided by the following principles.
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof. . . . .
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate’s brief on
Appellant’s behalf). By contrast, if counsel’s petition and brief
satisfy Anders, we will then undertake our own review of the
appeal to determine if it is wholly frivolous.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has further detailed counsel’s duties as follows:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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
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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; see also Commonwealth v. Dempster, 187
A.3d 266, 270 (Pa. Super. 2018) (en banc). Once we conclude that counsel
fulfilled all these requirements, we proceed to examine the record to
determine whether the case is wholly frivolous. See Commonwealth v.
Yorgey, 188 A.3d 1190, 1196 (Pa. Super. 2018) (en banc).
The analysis counsel offers to show that the appeal is wholly frivolous
pertains to a charge/conviction (disorderly conduct) that is not at issue in the
instant appeal. See Anders Brief at 11.
The instant appeal involves docket number 2029-2022, which pertains
to Appellant’s defiant trespass conviction. Appellant’s disorderly conduct
charge/conviction is part of a different docket, namely 3807-2023, which is
not included in the instant appeal.
Regarding docket number 2029-2022, a review of the notes of
testimony of the October 17, 2023, proceeding reveals that, after extensive
discussion, the Commonwealth agreed to withdraw Count 1, amend Count 2
to defiant trespass charged as a summary offense, and proceed to a bench
trial on the defiant trespass charge only. N.T. 10/17/23, at 20-21. Following
the bench trial, the trial court found Appellant guilty of defiant trespass. Id.
at 73.
At the proceeding, there also was some discussion about docket number
3807-2023, a related but distinct matter. Id. at 21. In this regard, the
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Commonwealth announced that it would amend the pertinent information to
add one count (disorderly conduct, charged as a summary offense). Id.
Because the Commonwealth was not ready to proceed, the parties agreed that
there will be a jury trial regarding docket 3807-2023 to be held at later time,
possibly January/February 2024. Id. at 42, 45-47.
As noted above, the instant appeal pertains to the defiant trespass
conviction. Thus, any discussion about the disorderly conduct
charge/conviction for purposes of withdrawing from the instant matter is not
relevant here.
We understand that Appellant was a fugitive, that he has been difficult
to interact with, that he might be suffering from some major mental illness,
and that the analysis about the two crimes (defiant trespass/disorderly
conduct) overlap to some extent. We also appreciate counsel’s argument that
it is in Appellant’s interest not to challenge his conviction, and counsel’s
inability to formulate any cogent argument that could reasonably support this
appeal. However, we cannot let counsel withdraw from the instant appeal, as
it appears it is based on a misconstruction of the relevant procedural
background.
Accordingly, we deny counsel’s application to withdraw as counsel and
instruct counsel to file either a compliant Anders brief or an advocate’s brief
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within 30 days of the date of this memorandum. 1 Appellant and the
Commonwealth may respond within 30 days of counsel’s filing of her brief.
Application to withdraw as counsel denied. Jurisdiction retained.
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1 In her brief, counsel should include some discussion on the propriety of the
sentence imposed here (seemingly a flat 90 days with credit for time served).
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