Com. v. Frazier, R. ( 2018 )

J-S73006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUDY FRAZIER :
:
Appellant : No. 1115 MDA 2017
Appeal from the Judgment of Sentence June 15, 2017
In the Court of Common Pleas of Northumberland County Criminal Division
at No(s): CP-49-MD-0000240-2017
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 2018
Appellant, Rudy Frazier, appeals from the judgment of sentence
entered on June 15, 2017, after the trial court found him in indirect criminal
contempt for violating a protection from abuse order. On this direct appeal,
Appellant’s court-appointed counsel filed both a petition to withdraw as
counsel and an accompanying brief pursuant to Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), and its federal predecessor, Anders
v. California, 386 U.S. 738 (1967). We conclude that Appellant’s counsel
complied with the procedural requirements necessary to withdraw.
Furthermore, after independently reviewing the record, we conclude that the
appeal is wholly frivolous. We therefore grant counsel’s motion to withdraw
and affirm Appellant’s judgment of sentence.
We quote the trial court’s summary of the facts and procedural history
in this case.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S73006-17
By [c]riminal [c]omplaint dated May 26, 2017 [Appellant] was
charged [with i]ndirect [c]riminal [c]ontempt pursuant to [23
Pa.C.S.A. § 6114]. The [c]omplaint charged [Appellant] with
violating a [p]rotection from [a]buse [o]rder filed to [d]ocket
[n]umber CV-15-1013. Specifically, it was charged that
[Appellant] on May 25, 2017 at 7:34 a.m. [called] the [victim]
by cell phone and stated[,] “get yourself ready, I’m taking your
fat ass to court.”
A hearing was held before th[e trial c]ourt on June 15, 2017.
Both parties testified. The [victim] testified that the parties have
a nine-year-old child together. She further testified that she had
an active [p]rotection from [a]buse [o]rder in effect against
[Appellant].
On the date in question, the victim testified that she received a
phone call around 7:30 in the morning. At the time[,] she was
taking her two children to school. The phone number came up
restricted and she believed the call may have been from her
employer. Upon answering the phone and saying hello, she
recognized [Appellant’s] voice and he said[,] “Get ready. I am
taking your fat ass to court.” She immediately closed her phone
and called the Sunbury Police Department.
She further testified that the current order prohibits [Appellant]
from having any contact with her by phone. She knew it was
[Appellant] on the phone as she has known [Appellant] for ten
years. She showed the police officer that she had received a
restricted call at the time in question. Finally, on
cross-examination when asked if the only way she was
identifying the call as being from [Appellant] was because of his
voice, the victim testified “Yes. And he also had done a drive-by
that morning with his bucket truck which can be verified by my
son and daughter.”
Thereafter, Officer Mazzeo testified that he asked the victim to
come to the police department on the morning in question
[where] she showed the officer her phone indicating the
restricted call coming in at [7:34 a.m]. Following the testimony
of Officer Mazzeo[,] the Commonwealth asked the [trial c]ourt to
take [j]udicial [n]otice of the final [p]rotection from [a]buse
[o]rder at docket [n]umber CV-15-1013, which [the court] did.
[Appellant] also testified at the hearing. He denied ever making
the phone call to the victim and further testified that he [hadn’t]
seen the victim in years.
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Trial Court Opinion, 8/14/17, at 1-2. This timely appeal resulted.
On appeal, the Anders brief raises the following issue of arguable
merit for our review:
Whether the trial court erred and/or abused its discretion in
finding that there was sufficient evidence to find [Appellant] in
indirect criminal contempt for violating a protection from abuse
order.
Anders Brief at 4.
Before reviewing the merits of this appeal, we must first determine
whether counsel has fulfilled the necessary procedural requirements for
withdrawing as counsel. See Commonwealth v. Flowers, 113 A.3d 1246,
1248-1249 (Pa. Super. 2015) (citation omitted). To withdraw under
Anders, court-appointed counsel must satisfy certain technical
requirements. “First, counsel must petition the court for leave to withdraw
and state that after making a conscientious examination of the record, he
has determined that the appeal is frivolous.” Commonwealth v.
Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016), quoting
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second,
counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts,
with citations to the record; (2) refer[s] to anything in the record
that counsel believes arguably supports the appeal; (3) set[s]
forth counsel’s conclusion that the appeal is frivolous; and (4)
state[s] counsel’s reasons for concluding that the appeal is
frivolous.
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Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015),
quoting Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[] him of his right to retain new counsel, proceed pro se[,] or
raise any additional points that he deems worthy of the court’s attention,
and attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
If counsel meets all of the above 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.” Santiago, 978 A.2d at 355 n.5, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw. In the case at bar, counsel has met all of the above procedural
obligations. We now turn to whether this appeal is wholly frivolous.1
Here, Appellant contends that the Commonwealth failed to present
sufficient evidence that he violated the protection from abuse order and
committed the offense of indirect criminal contempt. In Commonwealth v.
Baker, 766 A.2d 328, 331 (Pa. 2001), our Supreme Court set forth the four
____________________________________________
1 Appellant did not file a response to counsel’s Anders brief.
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elements necessary to establish a claim of indirect criminal contempt.
Specially, the Court held:
In order to establish a claim of indirect criminal contempt, the
evidence must be sufficient to establish the following four
elements:
1) The order must be definite, clear, specific and leave no
doubt or uncertainty in the mind of the person to whom it
was addressed of the conduct prohibited;
2) The contemnor must have had notice of the specific order
or decree;
3) The act constituting the violation must have been
volitional;
4) The contemnor must have acted with wrongful intent.
* * *
A trial court’s finding of contempt will not be disturbed absent an
abuse of discretion. An appellate court cannot find an abuse of
discretion merely for an error of judgment unless, in reaching a
conclusion, the trial court overrides or misapplies the law, or its
judgment is manifestly unreasonable[.]
Id.
After careful review of the certified record, we agree with the trial
court that the Commonwealth introduced sufficient evidence that Appellant
willfully, and with the intent to harass the victim, violated the provisions of a
protection from abuse order of which he had ample notice. Thus, we
conclude that the lone issue raised in counsel’s Anders brief is wholly
frivolous. Furthermore, after an independent review of the entire record, we
conclude that no other issue of arguable merit exists. Therefore, we grant
counsel’s request to withdraw and affirm Appellant’s judgment of sentence.
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J-S73006-17
Motion to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2018
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