Com. v. Dolente, 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
JOSEPH GEORGE DOLENTE, : No. 3275 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, September 30, 2014,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0003886-2014
BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 17, 2015
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Delaware County following appellant’s conviction of
simple assault and harassment. Appointed counsel, Patrick J. Connors, Esq.,
has filed a petition to withdraw, alleging that the appeal is wholly frivolous,
accompanied by an Anders brief.1 We grant counsel’s withdrawal petition
and affirm.
The facts giving rise to this matter are as follows. On May 13, 2014,
at approximately 10:00 p.m., appellant’s wife and two of their daughters
returned home after having dinner out. (Notes of testimony, 9/30/14 at
12.) When they arrived, they found appellant sitting on a couch in the living
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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room, drunk and agitated. (Id.) Appellant yelled and cursed at his wife and
daughters, and they immediately went to wife’s bedroom on the second floor
and closed the door. (Id. at 13-14.) Appellant followed and flung the
bedroom door open so hard it smashed a hole in the wall. (Id. at 14-15.)
Appellant proceeded to throw everything that was on the dressers, as well as
clothes, all over the bedroom while he continued to scream at his wife and
daughters. (Id. at 15-16.)
Wife testified she had a brass headboard and footboard that were
leaning against her new bed. (Id. at 15.) Appellant picked up a brass
footboard and threw it at his wife and daughters, who were on the bed. (Id.
at 15-17.) The footboard hit all three. (Id. at 19.) The leg of the brass
footboard hit appellant’s wife’s right ankle which caused the ankle to swell
immediately. (Id. at 19-20.) Wife testified she experienced pain, and it felt
like “somebody kicked me with steel tipped boots on.” (Id. at 20.) During
this episode, one of appellant’s daughters telephoned the police. (Id. at
21.) The police arrived within minutes of the call and arrested appellant.
(Id. at 28.)
Following a bench trial on September 30, 2014, appellant was found
guilty of simple assault along with the summary offense of harassment.
Appellant was sentenced to two years of probation. A timely notice of
appeal was filed on October 27, 2014. In response to the trial court’s order
to file a statement of errors complained of on appeal, appellant’s counsel
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filed a statement of intent to file an Anders brief under
Pa.R.A.P. 1925(c)(4).2 Consequently, the trial court declined to issue a
Pa.R.A.P. 1925(a) opinion and had the record certified for transmittal to this
court.
On February 26, 2015, appellant’s counsel filed in this court a motion
to withdraw as counsel and an Anders brief, wherein counsel states there
are no non-frivolous issues preserved for our review. “When presented with
an Anders brief, this Court may not review the merits of the underlying
issues without first examining counsel’s petition to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
2
Rule 1925(c)(4) provides:
In a criminal case, counsel may file of record and
serve on the judge a statement of intent to file an
[Anders] brief in lieu of filing a Statement. If, upon
review of the [Anders] 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. Upon remand, the trial court
may, but is not required to, replace appellant’s
counsel.
Pa.R.A.P. 1925(c)(4).
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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.
Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Our review of Attorney Connors’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
court’s attention, and attached to the Anders petition a copy of the letter
sent to appellant as required under Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the
Supreme Court in Santiago set forth the new requirements for an Anders
brief, which are quoted above, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.”).
As Attorney Connors has complied with all of the requirements set forth
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above, we conclude that counsel has satisfied the procedural requirements
of Anders.
Once counsel has met his 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. Thus,
we now turn to the merits of appellant’s appeal.
Instantly, appellant testified he picked up the ten pound footboard,
and when he went to throw it down, it bounced and then made contact with
the lower part of his wife’s foot. (Notes of testimony, 9/30/14 at 64-65.)
Appellant claimed it was an accident. (Id. at 67.) Appellant’s contention
will not afford him any relief.
In reviewing a challenge to the sufficiency of the evidence, we
evaluate the record “in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa.Super.
2009), appeal denied, 982 A.2d 1227 (Pa. 2009), (citation omitted).
Evidence will be deemed sufficient to support the
verdict when it established each element of the
crime charged and the commission thereof by the
accused, beyond a reasonable doubt. Nevertheless,
the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden
by means of wholly circumstantial evidence.
Significantly, [we] may not substitute [our]
judgment for that of the factfinder; if the record
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contains support for the convictions they may not be
disturbed.
Id. (citation and quotation marks omitted). “Any doubt about the
defendant’s guilt is to be resolved by the factfinder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Commonwealth v. Scott, 967
A.2d 995, 998 (Pa.Super. 2009), appeal denied, 983 A.2d 1248 (Pa.
2009).
A person is guilty of simple assault if he “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another[.]” 18
Pa.C.S.A. § 2701(a)(1). Appellant’s intentional act of picking up the
footboard and recklessly throwing it at the bed where his wife and two
daughters were located is sufficient to find appellant guilty of the crime of
simple assault. Clearly, throwing a brass footboard at the bed created a
significant risk that the people on the bed could be struck by the footboard
and injured. Whether the footboard bounced and hit his wife’s ankle or
directly hit wife’s ankle is of no moment. Appellant is responsible for the
consequences of his actions. See Commonwealth v. Klein, 795 A.2d 424,
428 (Pa.Super. 2002) (a person acts intentionally with respect to a material
element of an offense if it is his conscious object to engage in conduct of
that nature or to cause such a result); Commonwealth v. Richardson,
636 A.2d 1195, 1196 (Pa.Super. 1994) (same).
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The appeal is wholly frivolous, and our independent review of the
entire record has not disclosed any other potentially non-frivolous issues.
Consequently, we grant counsel’s petition to withdraw, and we affirm the
judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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