Com. v. Lambadarios, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES LAMBADARIOS,
Appellant No. 2521 EDA 2014
Appeal from the Judgment of Sentence June 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0000920-2007
CP-51-CR-0014269-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 08, 2015
James Lambadarios appeals from the judgment of sentence of two to
four years’ incarceration followed by ten years’ probation, imposed June 10,
2014, following revocation of his probation for two prior convictions.
Additionally, his court-appointed counsel, Stephen T. O’Hanlon, Esq., seeks
to withdraw his representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant
counsel’s petition to withdraw.
In 2013 and 2014, Appellant was on probation for several crimes. At
criminal docket CP-51-CR-000920-2007, following a bench trial, Appellant
was convicted of statutory sexual assault and corruption of minors. He was
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sentenced to eleven-and-one-half to twenty-three months’ incarceration to
be followed by five years’ probation. At docket CP-51-CR-0014269-2012,
Appellant entered a negotiated plea to a charge of theft - receiving stolen
property in exchange for which he received a sentence of six to twenty-three
months’ incarceration to be followed by three years’ probation.
In February 2014, Appellant’s former girlfriend, Jennifer Wenig,
reported to the Philadelphia Probation Department that Appellant assaulted
her, threatened her, and stole money from her. In March 2014, a violation
of probation (VOP) hearing commenced. At the hearing, Ms. Wenig testified
that Appellant twice assaulted her in December 2013, the latter incident
resulting in a broken tooth when Appellant smashed her face into a toilet.
See Notes of Testimony (N.T.), 03/14/2014, at 6-9. On cross-examination,
Ms. Wenig further testified that Appellant stole money from her. Id. at 18.
Following their breakup in January 2014, Appellant repeatedly called and
threatened Ms. Wenig and her family. Id. at 9-10. In response, Appellant
denied Ms. Wenig’s allegations. Id. at 26. However, the VOP court found
her credible and revoked Appellant’s probation. Id. at 27; see also Notes
of Testimony (N.T. Sentencing), 06/10/2014, at 12.
Following a presentence investigation, the VOP court sentenced
Appellant as stated above and denied his motion for reconsideration.
Appellant timely appealed, and Attorney O’Hanlon filed a Pa.R.A.P.
1925(c)(4) statement indicating his intent to file an Anders brief.
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In January 2015, Attorney O’Hanlon filed a petition to withdraw from
representing Appellant. He also filed an Anders brief, asserting that there
are no non-frivolous issues that could be raised in this appeal.
This Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
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, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
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review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
Here, Attorney O’Hanlon’s Anders brief complies with the above-
stated requirements. He includes a summary of the relevant factual and
procedural history; he refers to portions of the record that could arguably
support Appellant’s claims; and he sets forth his conclusion that Appellant’s
appeal is frivolous. He explains his reasons for reaching that determination,
supporting his rationale with citations to the record and pertinent legal
authority. Attorney O’Hanlon also states in his petition to withdraw that he
has supplied Appellant with a copy of his Anders brief, and he attaches a
letter directed to Appellant in which he informs him of the rights enumerated
in Nischan. Accordingly, counsel has complied with the technical
requirements for withdrawal.
We will now independently review the record to determine if
Appellant’s claims are frivolous, and to ascertain whether there are other,
non-frivolous issues Appellant could pursue on appeal. According to
Attorney O’Hanlon, Appellant contends that Ms. Wenig did not testify
credibly at his VOP hearing, and, therefore, there was insufficient evidence
to establish that Appellant violated his probation and was subject to
resentencing. See Appellant’s Anders Brief at 8; see also Pa.R.A.P.
1925(c)(4) Statement, 11/09/2014.
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The decision to revoke probation is a matter vested in the sound
discretion of the VOP court. Commonwealth v. Perreault, 930 A.2d 553,
558 (Pa. Super. 2007). We will not disturb the court’s decision unless we
discern an abuse of that discretion or an error of law. Id.The Commonwealth establishes a probation violation meriting
revocation when it shows, by a preponderance of the evidence,
that the probationer's conduct violated the terms and conditions
of his probation, and that probation has proven an ineffective
rehabilitation tool incapable of deterring probationer from future
antisocial conduct.
Id.Appellant challenges the sufficiency of the evidence against him, which
raises a question of law. Commonwealth v. Colon, 102 A.3d 1033, 1041
(Pa. Super. 2014). We review the evidence in the light most favorable to
the Commonwealth, as the verdict winner, to determine if it supports
revocation. Id. Here, Ms. Wenig testified that Appellant twice assaulted
her, threatened her, and stole money from her. The VOP court found her
testimony to be credible, noting:
Well, I heard from the complainant. And, quite frankly – she’s
here today – she was terrified. And it was a vicious assault.
N.T. Sentencing at 11. Upon review, this evidence was sufficient to support
the VOP court’s decision that Appellant’s probation had proven ineffective.1
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1
Appellant challenges the credibility of Ms. Wenig. A challenge to credibility
is a weight of the evidence claim and is not properly directed to the
sufficiency of the evidence. See Commonwealth v. DeJesus, 860 A.2d
(Footnote Continued Next Page)
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For the above reasons, Appellant’s claim is frivolous. Moreover, our
review of the record reveals no other non-frivolous issues Appellant could
assert on appeal.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
_______________________
(Footnote Continued)
102, 107 (Pa. 2004). Nevertheless, we are not empowered to reweigh the
evidence before the factfinder. See Commonwealth v. Ratsamy, 934
A.2d 1233, 1236 n.2 (Pa. 2007); Colon, 102 A.3d 1041; see also
Commonwaelth v. McDermott, 547 A.2d 1236, 1246 (Pa. Super 1988)
(concluding, in the analogous context of parole revocation proceedings, that
a weight claim may not properly be raised on appeal).
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