Com. v. Astillero, T. ( 2020 )

J-S42043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD ASTILLERO :
:
Appellant : No. 1355 EDA 2018
Appeal from the Judgment of Sentence October 12, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009058-2016,
CP-51-CR-0009059-2016
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
JUDGMENT ORDER BY MUSMANNO, J.: FILED DECEMBER 8, 2020
Todd Astillero (“Astillero”) appeals from the judgment of sentence
imposed following his convictions, at docket number CP-51-CR-0009058-
2016, of robbery, persons not to possess firearms, criminal mischief,
firearms not to be carried without a license, carrying firearms on public
streets in Philadelphia, possessing instruments of crime, terroristic threats,
simple assault, and recklessly endangering another person,1 and at docket
number CP-51-CR-0009059-2016, of persons not to possess firearms,
firearms not to be carried without a license, and carrying firearms on public
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1 See 18 Pa.C.S.A. §§ 3701(a)(1), 6105(a)(1), 3304(a)(2), 6106(a)(1),
6108, 907(a), 2706(a)(1), 2701(a), 2705.
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streets in Philadelphia.2 Additionally, Astillero’s counsel, John Belli, Esquire
(“Attorney Belli”), has filed a brief pursuant to Anders v. California, 386
U.S. 738, 744 (1967). However, Attorney Belli has not filed a separate
petition to withdraw with this Court. Thus, we direct Attorney Belli to either
file an advocate’s brief or fulfill all of the requirements of Anders.
Pursuant to Anders, when counsel believes that an appeal is frivolous
and wishes to withdraw from representation, he 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. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted); see also Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009) (addressing the requisite contents of an Anders brief).
Here, Attorney Belli has filed a purported Anders Brief, and concludes
that the claims raised by Astillero are frivolous. See Anders Brief at 46.
However, Attorney Belli did not file a separate petition to withdraw as
counsel with this Court. See Burwell, supra. Accordingly, since Attorney
Belli failed to either file a proper advocate’s brief or fulfill the requirements
set forth in Anders, we cannot address Astillero’s appeal.
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2 See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108.
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Based upon the foregoing, we direct Attorney Belli to either file an
advocate’s brief or fulfill all of the requirements of Anders within thirty days
of the filing of this Order. The Commonwealth shall have thirty days
thereafter to file a responsive brief.
Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2020
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