Com. v. Liegey, C. ( 2018 )

J-S25038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAD DOUGLAS LIEGEY :
:
Appellant : No. 1741 WDA 2017
Appeal from the Judgment of Sentence October 24, 2017
In the Court of Common Pleas of Elk County
Criminal Division at No(s): CP-24-CR-0000214-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 7, 2018
Chad Douglas Liegey appeals from the judgment of sentence of 90 days
of probation, which was imposed on October 24, 2017, in the Elk County Court
of Common Pleas, following his conviction by the trial court for the summary
charge of harassment – subject other to physical contact.1 On that same day,
a jury acquitted Liegey of the misdemeanor counts of recklessly endangering
another person (“REAP”) and simple assault.2 Contemporaneously with this
appeal, appellate counsel has filed a petition to withdraw and an Anders3
brief, stating the appeal is wholly frivolous. After careful review, we affirm
and grant counsel’s petition to withdraw.
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1 18 Pa.C.S. § 2709(a)(1).
2 18 Pa.C.S. §§ 2705 & 2701(a)(1), respectively.
3 Anders v. California, 386 U.S. 738 (1967).
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On July 24, 2016, in the early morning, at a residence located in
Benezette, Elk County, Liegey hit Sherri McCloskey three times: once on the
left side of her face, once on the right side of her face, and once on her
forehead. Trial Court Opinion, 1/22/2018, at 1-2, citing N.T., 10/24/2017, at
10.
During Liegey’s trial on October 24, 2017, the Commonwealth
introduced seven photographs of McCloskey after the incident. Id. at 2, citing
Commonwealth Exs. 1-7. The photographs depict a wound on McCloskey’s
forehead, bruising around her eyes, and other contusions on her face. Id.,
citing Commonwealth Exs. 1-7. Investigating Pennsylvania State Police
Trooper Tyler J. Thompson testified he observed “a laceration in the middle of
[McCloskey’s] forehead” and “bruising on her forehead” when he “arrived.”
N.T., 10/24/2017, at 49.
Liegey testified in his own defense that, after McCloskey “punched” him
“in the cheek[,]” he “hit her back just out of – defense[.]” N.T., 10/24/2017,
at 80; see also id. at 90 (“She hit me and I hit her back”); Trial Court Opinion,
1/22/2018, at 2. He continued that he “hit her one time.” N.T., 10/24/2017,
at 90; see also id. at 92 (“I hit her one time”; “I hit her once”); Trial Court
Opinion, 1/22/2018, at 2. Liegey also introduced three photographs depicting
scratches and a contusion on his arms following the incident; the photographs
do not show Liegey’s face. Id., citing Def. Exs. A-C.
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Liegey was sentenced immediately after his conviction for harassment.
N.T., 10/24/2017, at 126. No post-sentence motions were filed, but this
appeal followed.4
On February 15, 2018, appellate counsel sent a letter to Liegey,
informing Liegey that he intended to file a petition for leave to withdraw. The
next day, appellate counsel filed an Anders Brief, in which he presented the
following issues:
(1) Whether the trial court erred in finding [Liegey] guilty of the
summary offense of Harassment (18 Pa.C.S.[ §] 2709(a)(1)), as
the verdict was against the weight of the evidence where the jury
found [Liegey] not guilty of all of the misdemeanor offenses?
(2) Whether the evidence was sufficient to support the verdict
of guilty to the charge of Harassment (18
Pa.C.S.[ §] 2709(a)(1))?
Anders Brief at 3. That same day, appellate counsel filed a petition to
withdraw. Liegey did not file a pro se response to that petition. On April 3,
2018, the Commonwealth sent a letter to this Court stating that it did not
intend to file a responsive brief.
When presented with an Anders brief, this court may not review
the merits of the underlying issues without first passing on the
request to withdraw.
In order for counsel to withdraw from an appeal pursuant to
Anders, certain requirements must be met, and counsel must:
____________________________________________
4 On November 17, 2017, the trial court ordered Liegey to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days of the date of the order, and Liegey complied on November 27,
2017. On January 22, 2018, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
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(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.
Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super. 2017) (internal
brackets, citations, and quotation marks omitted; some formatting).
Counsel seeking to withdraw on direct appeal must meet the following
obligations to his or her client:
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. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017)
(citation and internal brackets and quotation marks omitted). “Once counsel
has satisfied the above requirements, it is then this Court’s duty to conduct
its own review of the trial court’s proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en
banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.
2004)). Finally, “[w]e must also conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
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counsel.” In re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017) (citation and
internal quotation marks omitted).
[T]his review does not require this Court to act as counsel or
otherwise advocate on behalf of a party. Rather, it requires us
only to conduct a review of the record to ascertain if on its face,
there are non-frivolous issues that counsel, intentionally or not,
missed or misstated. We need not analyze those issues of
arguable merit; just identify them, deny the motion to withdraw,
and order counsel to analyze them.
Commonwealth v. Yorgey, 2018 Pa. Super. 136 ¶ 25 (en banc).
In this appeal, we observe that appellate counsel’s February 15, 2018,
correspondence to Liegey provided a copy of the Anders Brief to Liegey and
advised Liegey of his right either to retain new counsel or to proceed pro se
on appeal to raise any points he deems worthy of the court’s attention.
Further, appellate counsel’s Anders Brief, at 4-6, complies with prevailing law
in that counsel has provided a procedural and factual summary of the case
with references to the record. Appellate counsel additionally advances
relevant portions of the record that arguably support Liegey’s claims on
appeal. Id. at 7-8. Ultimately, appellate counsel cites his reasons and
conclusion that Liegey’s “appeal is frivolous.” Id. at 8-12. Counsel’s Anders
brief and procedures therefore comply with the requirements of Blauser, 166
A.3d at 431, and Schmidt, 165 A.3d at 1006. We thus proceed to conduct
an independent review to ascertain whether the appeal is indeed wholly
frivolous.
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As a preliminary matter, generally, a challenge to the weight of the
evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.
The Rule provides:
(A) A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004).
The fact that [an a]ppellant included an issue challenging the
verdict on weight of the evidence grounds in his 1925(b)
statement and the trial court addressed [the a]ppellant’s weight
claim in its Pa.R.A.P 1925(a) opinion d[oes] not preserve his
weight of the evidence claim for appellate review in the absence
of an earlier motion.
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009); accord In
re Estate of Smaling, 80 A.3d 485, 491 n.2 (Pa. Super. 2013) (en banc)
(“the inclusion of a weight claim in an appellant’s Rule 1925(b) statement did
not preserve his weight of the evidence claim for appellate review in the
absence of an earlier motion, even where the trial court addressed the
appellant’s weight claim in its Pa.R.A.P. 1925(a) opinion”).
Instantly, Liegey failed to challenge the weight of the evidence before
the trial court in a motion for a new trial. See Pa.R.Crim.P. 607. Rather,
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Liegey raised his weight claim for the first time in his concise statement. See
Sherwood, 982 A.2d at 494; Smaling, 80 A.3d at 491 n.2. Thus, his first
issue on appeal is waived. See Pa.R.Crim.P. 607; Sherwood, 982 A.2d at
494; Smaling, 80 A.3d 485, 491 n.2.
With respect to Liegey’s challenge to the sufficiency of the evidence,
Liegey contends that his testimony – i.e., he hit McCloskey only once after she
hit him on the cheek -- should have been sufficient to establish self-defense.
Anders Brief at 8; see also N.T., 10/24/2017, at 80, 90, 92; Trial Court
Opinion, 1/22/2018, at 2.
Our standard of review is as follows:
Whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. . . .
Finally, the trier of fact while passing upon the credibility of
witnesses . . . , is free to believe all, part or none of the evidence.
Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and
internal brackets omitted), appeal denied, 174 A.3d 558 (Pa. 2017).
Liegey was convicted of harassment pursuant to 18 Pa.C.S.
§ 2709(a)(1): “A person commits the crime of harassment when, with intent
to harass, annoy or alarm another, the person strikes, shoves, kicks or
otherwise subjects the other person to physical contact, or attempts or
threatens to do the same[.]” “An intent to harass may be inferred from the
totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721
(Pa. Super. 2013).
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With respect to Liegey’s claim of self-defense, “[t]he use of force upon
or toward another person is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion.” 18 Pa.C.S.
§ 505(a).
When a defendant raises the issue of self-defense, the
Commonwealth bears the burden to disprove such a defense
beyond a reasonable doubt. While there is no burden on a
defendant to prove the claim, before the defense is properly at
issue at trial, there must be some evidence, from whatever
source, to justify a finding of self-defense.
Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa. Super. 2006) (citation
omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable
Richard A. Masson, we conclude that Liegey’s second issue merits no relief.
The trial court opinion comprehensively discusses and properly disposes of
that question, as follows:
In the case at bar, there is no reasonable doubt that [Liegey]
struck McCloskey as both she and [he] testified to him striking
her, albeit a different number of times. McCloskey testified to
being struck in the face three times and [Liegey] acknowledged
striking her once in the face in reaction to his purportedly having
been struck first by her. In addition to their testimony, Trooper
Thompson testified to his observation of the wound and blood on
McCloskey. The wound to McCloskey’s forehead is obvious as are
her blackened eyes and general facial contusions as depicted in
Commonwealth Exhibits 1 through 7. These photos corroborate
McCloskey’s testimony that Liegey hit her three times, including
once on the left side of her face, once on the right side of her face,
and once in the forehead[. N.T.,] 10/24/[20]17[, at] 10[]). The
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aforesaid Commonwealth photograph exhibits also discredit the
testimony of Liegey that he only struck McCloskey once[. N.T.,]
10/24/[20]17[, at] 80[,] 90[,] 92[].
The assertion of [Liegey that he] struck McCloskey once in self-
defense after she purportedly hit him on the cheek was simply not
believed by the Court, which had the opportunity to observe the
demeanor and countenance of the witnesses and attribute the
weight it deemed appropriate to the evidence. The testimony of
McCloskey that was supported by the other evidence, including
the demonstrative evidence in the nature of the photographs
introduced as Commonwealth Exhibits 1 through 7, was found to
be credible and competent both as to establishing the elements of
harassment and to demonstrate that [Liegey] did not engage in
self-defense. The testimony of Liegey was undermined by the
Defendant Exhibit A, B and C photographs as well, which at best
depict scratches and a contusion on his arms, but do not show his
face, let alone any physical evidence that he was struck in the
face. . . . Any use of force that McCloskey may have employed
which resulted in marks on the [Liegey]’s arms was provoked by
[Liegey] by engaging in conduct that showed he intended to cause
her to be subjected to unlawful force and thus his conduct was not
justified.
Trial Court Opinion, 1/22/2018, at 2-3. Based on the foregoing, we agree
with the trial court and appellate counsel that the Liegey’s challenge to the
sufficiency of the evidence lacks merit.
In addition, we have reviewed the certified record consistent with
J.D.H., 171 A.3d at 908, and have discovered no additional arguably
meritorious issues. Therefore, we grant appellate counsel’s petition to
withdraw and affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judge Panella joins this memorandum.
President Judge Gantman concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2018
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