Com. v. Powell, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JEFFREY POWELL
Appellant No. 1969 EDA 2017
Appeal from the Judgment of Sentence imposed January 20, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0010588-2014
BEFORE: OTT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 09, 2018
Appellant, Jeffrey Powell, appeals from the judgment of sentence
imposed on January 20, 2017 in the Court of Common Pleas of Philadelphia
County following his convictions of unlawful contact with a minor, endangering
the welfare of a child as a course of conduct, corrupting the morals of a minor,
and indecent assault.1 Appellant’s counsel filed a brief citing Anders v.
California, 386 U.S. 738 (1969) and Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981),2 noting that Appellant preserved three issues for
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1 18 Pa.C.S.A. §§ 6318(a)(1), 4304(a)(1), 6301(a)(1)(ii), and 3126(a)(1),
respectively.
2In his brief, counsel endeavors to satisfy the requirements of Anders and
McClendon. However, our Supreme Court abrogated McClendon in
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appeal, including weight of the evidence, discretionary aspects of sentence,
and a challenge to jury selection. Counsel concurrently filed a motion for leave
to withdraw. By order entered May 4, 2018, we directed counsel to file an
amended brief complying in all respects with Anders as refined by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Counsel complied
with the directive and we are now in a position to consider his request to
withdraw and the issues raised on behalf of Appellant.3 For the reasons
explained below, we grant counsel’s petition for leave to withdraw and affirm
Appellant’s judgment of sentence.
We must address the request to withdraw before reviewing the merits
of Appellant’s issue. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005). As this Court recognized in Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago did
not change the procedural requirements for requesting withdrawal from
representation.
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;
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Santiago, requiring that counsel state the reasons for concluding the appeal
is frivolous, rather than comply with the standard set forth in McClendon. As
indicated herein, counsel did include in Appellant’s amended brief the reasons
for concluding the appeal is frivolous. Therefore, we shall consider it despite
the erroneous reference to, and seeming reliance on, McClendon.
3 In our Order, we offered the Commonwealth the opportunity to file a
response to Appellant’s amended brief. The Commonwealth did not file a
response.
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2) 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.
Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)).
Counsel’s motion to withdraw did not comply with the second and third
procedural requirements listed above. As a result, this Court issued an order
on December 12, 2017, directing counsel to comply with those requirements,
as outlined in Cartrette. Counsel was also directed to file proof of service of
his Anders brief along with a copy of the trial court’s Rule 1925(a) opinion
and Appellant’s Rule 1925(b) statement of errors complained of on appeal.
Order, 12/11/17, at 1.
On December 28, 2017, counsel filed a copy of his November 18, 2017
letter to Appellant, indicating his research regarding the issues preserved for
appeal had failed to uncover any grounds for relief, and reflecting that a copy
of Appellant’s brief and counsel’s motion to withdraw were provided to
Appellant. Counsel also advised Appellant of his right to represent himself or
retain other counsel.
While counsel’s letter did not mention either the trial court’s Rule
1925(a) opinion or Appellant’s Rule 1925(b) statement, the record does reflect
that Appellant’s counsel filed a statement of intent to file “an
Anders/McClendon brief” on July 20, 2017 and the trial court responded by
entering an order to transmit the record, citing Commonwealth v. McBride,
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957 A.2d 752, 758 (Pa. Super. 2008) (“If counsel files a statement of intent
to file an Anders/McClendon brief pursuant to Rule 1925(c)(4), a trial court
opinion is not necessary and the trial court record shall be certified . . . to this
Court.”). Trial Court Order to Transmit Record, 7/29/17, at 1.4
On January 12, 2018, this Court issued a second order, this time
directing counsel to advise Appellant, within 14 days of the order, of “his
immediate right to retain new counsel, proceed pro se or raise any additional
points that he deems worthy of this Court’s attention.” Order, 1/12, 18, at 1
(citing Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa. Super.
2005) (emphasis in original)). By letter filed with this Court on January 29,
2018, counsel complied with the directive.
Although counsel’s initial failures to satisfy the procedural requirements
necessitated the issuance of two orders from this Court, counsel ultimately
satisfied the procedural requirements set forth in Anders, as refined by
Santiago. The record now includes counsel’s conclusion, based on a review
of the case, that there are no meritorious issues to be raised on Appellant’s
behalf and that proceeding with the case would be frivolous. In addition, the
record now reflects that counsel furnished a copy of the appellate brief to
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4 Pa.R.A.P. 1925(c)(4) provides that, “[i]f upon review of the
Anders/McClendon brief, the appellate court believes that there are arguably
meritorious issues for review, those issues will not be waived; instead, the
appellate court may remand for the filing of a Statement, a supplemental
opinion pursuant to Rule 1925(a), or both.”
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Appellant and properly advised Appellant of his right to retain new counsel or
act on his own behalf to raise additional arguments or points for this Court’s
consideration.
With the procedural requirements of Anders satisfied, this Court must
next ascertain whether the brief satisfies the substantive mandates prescribed
in Santiago. In Santiago, our Supreme Court announced:
[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
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.
As noted above, by order entered May 4, 2018, we advised counsel that
while he had satisfied the procedural requirements of Anders, his brief did
not comply with the substantive requirements. In response, counsel filed an
amended brief that includes a statement of the case setting forth the
procedural history of the case. Appellant’s Amended Brief at 4-7. Counsel
has satisfied the first requirement.
The second required element of an Anders brief is reference to anything
in the record that counsel believes arguably supports the appeal. Here,
counsel refers to testimony that arguably supports the appeal, including
testimony of the complainant, her adult sister, and her mother, noting that
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the testimony of all three individuals was challenged on cross-examination.
In addition, counsel refers to Appellant’s own testimony and that of two of his
children as well as stipulated testimony concerning Appellant’s good character.
Appellant’s Amended Brief at 4-14. We find counsel has complied with the
second requirement.
Counsel has satisfied the third element of Anders, stating his conclusion
that the appeal is frivolous. Id. at 7, 14. Finally, counsel provided his reasons
for concluding the appeal is frivolous. Id. at 8-14. Thus, counsel has satisfied
the fourth and final element of the Anders test.
Having determined the procedural and substantive requirements of
Anders are satisfied, we must conduct our own independent review of the
record to determine if the issues identified in this appeal are, as counsel
asserts, wholly frivolous, or if there are any other meritorious issues present
in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)
(“[T]he court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds, it
may grant counsel’s request to withdraw.”).
In his first issue, Appellant contends the verdict is against the weight of
the evidence. Our Supreme Court has explained:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. Commonwealth v. Widmer, 744 A.2d 745, 751–52
(Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189
(Pa. 1994). A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
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would have arrived at a different conclusion. Widmer, 744 A.2d
at 752. Rather, “the role of the trial judge is to determine that
‘notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.’” Id. at 752 (citation omitted). It has
often been stated that “a new trial should be awarded when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.” Brown, 648
A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Brown, 648
A.2d at 1189. Because the trial judge has had the
opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is
against the weight of the evidence. Commonwealth v.
Farquharson, 354 A.2d 545 (Pa. 1976). One of the least
assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not
against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Widmer, 744 A.2d at 753 (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations
modified).
Here, the trial court denied Appellant’s post-sentence motion by order
entered May 16, 2017. The trial court did not provide any findings or offer
any reasons for its conclusions in that order and, as noted above, did not file
a Rule 1925(a) opinion in light of counsel’s indication he would be filing an
Anders brief. However, the trial court did make a statement at the time of
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the sentencing that provides insight into the denial of Appellant’s motion. The
trial court explained to Appellant:
[Trial counsel] is going to file a post-sentence motion for you. He’s
going to raise two issues that he’s required to raise or they’d be
waived. He just has to put a sentence down, because he’s not
going to do the brief. He’ll say that the verdict was against the
weight of the evidence, and he’ll say that the [j]udge abused his
discretion at sentencing. I think those are probably frivolous
claims, because the jury was absolutely entitled to believe the
testimony of the complainant, who was credible, and her sister,
and to disbelieve your testimony, which was not credible, in my
view. It certainly doesn’t shock my conscience, which is what the
standard is for weight of the evidence.
Notes of Testimony, Sentencing, 1/20/17 at 34-35. Based on our review of
the record and the trial court’s comments at sentencing, we find no abuse of
discretion on the part of the trial court in rejecting Appellant’s weight of the
evidence claim.
The second claim preserved for appeal related to discretionary aspects
of sentence. In his post-sentence motion, Appellant asserted simply that his
sentence was excessive. Appellant’s Post-Sentence Motion, 1/26/17, at ¶ 3.
Appellant is not entitled to relief.
“In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court’s decision under an abuse of discretion standard.
Additionally, this Court’s review of the discretionary aspects of a sentence is
confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).”
Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (quotation
marks and citations omitted).
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In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this Court
reiterated:
Appellant is not entitled as of right to a review of such a challenge.
Our jurisdiction over a claim regarding the discretionary aspects
of sentence must be established as follows:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S. § 9781(b).
Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (internal quotation marks, citations and modifications omitted)).
A review of the record reveals that Appellant has satisfied the first two
elements of the test. However, his brief does not include a statement in
accordance with Pa.R.A.P. 2119(f). Even if it did include a Rule 2119(f)
statement, it is clear Appellant has not raised a substantial question under
42 Pa.C.S.A. § 9781(b) that the sentence appealed from is not appropriate.5
See Commonwealth v. Griffin, 65 A,3d 932, 936-37 (Pa. Super. 2013),
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5 “A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. Super.
2005).
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appeal denied, 76 A.3d 538 (Pa. 2013), (citing Commonwealth v. Coss, 695
A.2d 831, 833 (Pa. Super. 1997) (when the sentence imposed falls within the
statutory limits, an appellant’s claim that a sentence is manifestly excessive
fails to raise a substantial question)).
At sentencing, the trial court addressed the potential discretionary
aspects of sentence claim and explained:
In terms of a discretionary sentence, I gave you a standard range
guideline sentence. So unless a Court is going to find that to be
unreasonable, clearly unreasonable, because it’s within the
guidelines, you got a break. You got a sentence within the
guidelines when the Commonwealth asked me to give you four to
eight years. Okay? And I think some [j]udges would have done
that.
Notes of Testimony, Sentencing, 1/20/17, at 35. Appellant has failed to raise
a substantial question regarding his sentence and has failed to show that the
sentencing court abused its discretion in fashioning a sentence within the
guidelines. His claim of an excessive sentence is devoid of merit.
The third issue raised on appeal relates to a juror who failed to disclose
a prior employment relationship with Appellant. As Appellant concedes, it is
the duty of the parties to ascertain, by proper examination at the time the
jury is impaneled, the existence of any reasons for objection to the jurors.
Appellant’s Amended Brief at 13 (citing Commonwealth v. Aljoe, 216 A.2d
50 (Pa. 1966)). As our Supreme Court recognized in Aljoe, a challenge to a
juror “cannot be successfully raised after a jury has been sworn except in
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those cases where a defendant has been intentionally misled or deceived by
the juror or by the opposite party.” Aljoe, 216 A.2d at 54.
As acknowledged in Appellant’s brief:
In this case, Appellant informed the court that he did not recognize
the juror until he saw the juror in the hallway. Moreover, the juror
did not indicate a familiarity with Appellant. Together these facts
arguably could indicate that the panelist intentionally misled the
court and the defendant during general voir dire as to whether he
was familiar with Appellant. However, Appellant voluntarily
excused himself from individual voir dire. In so doing, Appellant
deprived himself of the opportunity [to] more closely view
potential jurors and to hear their answers to [the court’s inquiry]
into topics such as employment history. By depriving himself of
this opportunity, Appellant deprived himself [of] an opportunity to
discover whether the juror was actually the person Appellant
believed him to be and whether their ostensible relationship would
be helpful, hurtful, or harmless at trial. An appeal as to the
selection of the jury under such circumstances would be frivolous.
Appellant’s Amended Brief at 13-14. We agree. Appellant’s third issue lacks
merit.
In summary, our independent review of the record does not reveal any
non-frivolous arguments available to Appellant. Therefore, we grant counsel’s
motion to withdraw and affirm the judgment of sentence.
Motion for leave to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/18
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