Com. v. T.M.F., Sr. ( 2015 )

J-S61032-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
T.M.F., SR., :
:
Appellant : No. 638 MDA 2015
Appeal from the Judgment of Sentence Entered March 11, 2015,
in the Court of Common Pleas of Schuylkill County,
Criminal Division, at No.: CP-54-CR-0001106-2014
BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 12, 2015
T.M.F., Sr., (Appellant) appeals from the judgment of sentence
entered following his convictions for recklessly endangering another person
(REAP) and the summary offense of harassment. In addition, Appellant’s
counsel has filed a petition to withdraw and a brief 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.
On May 1, 2014, Appellant was involved in a physical altercation with
his wife (Grandmother); their son (Father); their grandchild and Father’s
child, A.F.; and A.F.’s mother (Mother). The altercation related to the
custody of A.F., who was approximately 15 months old at the time, and
ultimately resulted in injuries to A.F. On February 5, 2015, Appellant was
*Retired Senior Judge assigned to the Superior Court.
J-S61032-15
convicted by a jury of REAP as to A.F. and by the trial court sitting as fact
finder of harassment as to Mother. Appellant was sentenced to serve 7 to
23 months of incarceration for the REAP conviction and to pay a $100 fine
for the harassment conviction. Appellant timely filed a notice of appeal. The
trial court ordered Appellant to file a concise statement of the errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and one was filed.
Appellant’s counsel then filed with this Court a petition to withdraw his
representation of Appellant and an Anders brief.
The following principles guide our review of this matter.
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. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold that in 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.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.1 Once “counsel has met these
obligations, ‘it then becomes the responsibility of the reviewing court to
make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.”
Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)
(quoting Santiago, 978 A.2d at 354 n.5).
In his Anders brief, counsel presents one issue that could arguably
support an appeal: “Was the evidence sufficient to convict Appellant of
[REAP]?” Anders Brief at 3.
1
Appellant has not responded to counsel’s petition to withdraw.
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The standard we apply in reviewing the sufficiency of
the evidence is 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. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility
of innocence. Any doubts regarding a defendant’s
guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn
from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Further, in viewing the evidence in the light most favorable to
the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation
omitted).
With regard to REAP, the Crimes Code provides that “[a] person
commits a misdemeanor of the second degree if he recklessly engages in
conduct which places or may place another person in danger of death or
serious bodily injury.” 18 Pa.C.S. § 2705.
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We have held that a person is guilty of [REAP] when it is shown
that the person (1) possessed “a mens rea recklessness,” (2)
committed a wrongful deed or guilty act (“actus reus”), and (3)
created by such wrongful deed the danger of death or serious
bodily injury to another person. The element of “mens rea
recklessness” has been defined as “a conscious disregard of a
known risk of death or great bodily harm to another person.”
“Serious bodily injury” is defined as “[b]odily injury which
creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” We have further
held that Section 2705 “was directed against reckless conduct
entailing a serious risk to life or limb out of proportion to any
utility the conduct might have” had. Finally, the perpetrator must
create an actual condition of danger, not merely an
apprehension of danger.
Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006)
(citations and bolding omitted).
In the criminal information, the Commonwealth charged Appellant with
REAP on the basis that he “recklessly engaged in conduct which placed, or
may have placed, [A.F.], age 15 months, in danger of death or serious
bodily injury by engaging in conduct that caused the stroller holding the
victim to fall over, resulting in the said victim striking her head and face on
the ground ….” Criminal Information, 8/25/2014.
Mother testified at Appellant’s trial. She explained that on May 1,
2014, after leaving a medical appointment for A.F., she was walking in a
nearby dollar store parking lot when Appellant sneaked up behind her,
grabbed her by the waist, and pulled her down. N.T., 2/5/2015, at 26-28.
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Mother explained that she was holding onto A.F.’s stroller,2 so both Mother
and A.F. “went back” and that Appellant pushed her down “really hard.” Id.
at 28-29. Mother testified that, when she went down, Grandmother was on
top of her and A.F. and that both Appellant and Grandmother were hitting
her and A.F. Id. at 29. Mother also testified that she was holding onto A.F.
the whole time they were down but A.F. “must have went [sic] onto the
sidewalk,” which was made out of cement. Id. at 29. Mother explained that
Father also appeared during the incident and “was pulling at [A.F.].” Id. at
30. Mother testified that the police eventually separated everyone and, as a
result of the incident, A.F. “had a big black and blue on her cheek” and the
stroller was bent. Id. at 30-32.
Pennsylvania State Trooper Michael V. Ryan also testified at trial.
Trooper Ryan explained that, on the day of the incident, he was driving
southbound on Route 61 in Pottsville, heading in for duty, when he
witnessed Mother3 pushing a stroller with a young child in it and Appellant
“sneaking up behind [Mother], grabbing [Mother] by the waist, and pulling
her backwards.” Id. at 52-53. Trooper Ryan explained that Grandmother
then came from the front and grabbed Mother around the chest and pulled
2
Mother described the stroller as a “summer stroller.” N.T., 2/5/2015, at
29. By way of further explanation, Father confirmed that the stroller was of
the type that had “handles that almost look like canes” and “a cloth pouch
for the child to sit in.” Id. at 138.
3
Trooper Ryan refers to Mother as “the victim” throughout his testimony.
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her down. Id. at 54. Trooper Ryan stated that “they went down to the
ground, the stroller tips to the right (indicating); and then [Appellant] is
digging in, like the arms are going down. What he was doing, I couldn’t see,
but was going down … towards the baby and towards [Mother].” Id.
Trooper Ryan further explained that he could not tell whether Appellant’s
movements were “punches or grabbing for the child.” Id. Trooper Ryan
testified that he pulled into the parking lot, at which point Father became
involved and began “digging at the child.” Id. at 55. Trooper Ryan stated
that he explained to the individuals that he was a trooper with the state
police and that he took control of A.F. Id. at 56. At that time, Trooper Ryan
saw a bruise on A.F.’s right cheek. Id.
The Commonwealth also presented the testimony of Patrolman Paul
Olson of the Pottsville Bureau of Police. Patrolman Olson explained that he
was summoned to the scene and, upon arriving, aided in separating the
parties involved. Id. at 84-85. He stated that he spoke with the individuals
involved in the altercation and Trooper Ryan, and he observed that A.F. had
some bruising on her cheek area and a few minor scratches. Id. at 88-89.
When asked what the reckless behavior was that Appellant engaged in to
cause a danger of death to the child, Patrolman Olson stated that “an infant
has a very soft skull. … If the child would hit the ground violently enough,
that could cause serious bodily injury to the child’s head and/or brain.” Id.
at 99.
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The above evidence, viewed in the light most favorable to the
Commonwealth, is sufficient to support Appellant’s REAP conviction as to
A.F. That is, in grabbing Mother and pulling her to the ground while she was
pushing her young child in a stroller, Appellant recklessly engaged in
conduct which placed or may have placed that child in danger of death or
serious bodily injury. Although Father, Grandmother, and Appellant all
testified that the altercation began between Mother and Grandmother and
that Appellant’s physical involvement was limited to an initial (and
unsuccessful) attempt to remove A.F. from her stroller and the situation,4 it
is clear that the jury did not credit this testimony. See Harden, 103 A.3d at
111 (“[T]he [finder] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all, part or none
of the evidence.”).
Based on the foregoing, we conclude that Appellant’s issue challenging
the sufficiency of the evidence is frivolous. Moreover, we have conducted “a
full examination of the proceedings” and conclude that “the appeal is in fact
wholly frivolous.” Flowers, 113 A.3d at 1248. Thus, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
4
See N.T., 2/5/2015, at 135-44, 160-65, 191-201.
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Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2015
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