Com. v. Furr, G., Jr. ( 2019 )

J. S33031/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GARY RALPH FURR, JR., : No. 1228 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered January 23, 2018,
in the Court of Common Pleas of Union County
Criminal Division at No. CP-60-CR-0000325-2016
BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 28, 2019
Gary Ralph Furr, Jr., appeals from the January 23, 2018 judgment of
sentence1 of two to seven years’ imprisonment entered in the Court of
Common Pleas of Union County after a jury convicted him of aggravated
assault and resisting arrest.2 Trisha Hoover Jasper, Esq. (“Attorney Jasper”),
filed an Anders brief3 and a petition to withdraw, alleging that the appeal is
1We note that the sentencing order was executed on January 22, 2018, but
not entered on the docket until January 23, 2018. The caption has been
corrected to reflect the date the order was docketed.
2 18 Pa.C.S.A. § 2702(a)(6) and § 5104, respectively
3 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
J. S33031/19
frivolous. We grant counsel’s petition to withdraw and affirm the judgment of
sentence.
The record reflects that on August 18, 2016, Agent Susan Stout, an
agent with the Pennsylvania Board of Probation and Parole, went to appellant’s
place of employment to ask appellant about another parolee who was allegedly
staying with appellant. (Notes of testimony, 11/20/17 at 30, 34.) While
waiting to speak with appellant, Agent Stout learned that appellant had fled
his place of employment without speaking to her. (Id. at 35.) Agent Stout
found appellant in a nearby parking lot standing next to his vehicle and
holding, among other things, a utility box cutter knife in his hand. (Id. at 35-
36.) Agent Stout ordered appellant to drop the utility knife, which he initially
did, but then appellant picked the utility knife back up from the ground. (Id.
at 36-37.) After appellant picked the utility knife back up, Agent Stout pointed
her taser at appellant, directed appellant to drop the utility knife, and when
appellant failed to drop the utility knife, Agent Stout deployed her taser on
appellant. (Id. at 37.) When tasering appellant, with the taser cartridge
loaded, had no effect on appellant’s movements, Agent Stout “drive stunned”4
appellant with her taser. (Id. at 38-39.) When the drive stunning did not
work, Agent Stout ordered appellant to place his hands on the roof of his car
4 Agent Stout, in her testimony, described “drive stun” as a pain compliance
technique designed “to get a body part to move the way you want it to move
or to get somebody to back up from you” without the cartridge loaded. (Id.
at 38-39.)
-2-
J. S33031/19
or she was going to shoot appellant. (Id. at 29-40.) Appellant complied and
did not have the utility knife in his hands when he placed his hands on the
roof of his car. (Id.) When Agent Stout tried to handcuff appellant, appellant
turned and faced Agent Stout; at which point Agent Stout wrapped her arms
around appellant’s waist. (Id. at 40-41.) Appellant proceeded to walk away
from his car dragging Agent Stout with him. (Id. at 41-42.) Agent Stout
yelled for bystanders to call the police. (Id. at 42.) Three of the bystanders
became involved in the situation and eventually Agent Stout and the three
bystanders were able to subdue appellant and place him in handcuffs. (Id. at
42-43.)
On November 21, 2017, a jury found appellant guilty of aggravated
assault under 18 Pa.C.S.A. § 2702(a)(6) and resisting arrest but acquitted
appellant on the charges of aggravated assault under Section 2702(a)(3) and
possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). On
December 27, 2017, prior to sentencing and while still represented by trial
counsel, Steven Buttorff, Esq. (“Attorney Buttorff”), appellant filed pro se a
“petition for withdraw [sic] of counsel[,] inter alia[,] ineffective assistance of
counsel” in which appellant alleged there were irreconcilable differences
between himself and trial counsel and that trial counsel was ineffective.
Appellant requested that trial counsel be “withdrawn” and new counsel
appointed. At the sentencing hearing on January 22, 2018, the trial court
-3-
J. S33031/19
denied appellant’s pro se petition requesting new counsel.5 (Sentencing
hearing transcript, 1/22/18 at 8; see also trial court order, 1/23/18.)
Attorney Buttorff then made an oral “motion for extraordinary relief”
challenging the weight of the evidence in order to preserve the issue for
appeal. (Sentencing hearing transcript, 1/22/18 at 9.) The trial court denied
Attorney Buttorff’s motion. (Id. at 15.) The trial court sentenced appellant
to an aggregate two to seven years’ incarceration for the aggravated assault
and resisting arrest convictions. (Id. at 16; see also sentencing order,
1/23/18.6) On January 23, 2018, Attorney Buttorff filed a petition to withdraw
as counsel, which the trial court granted that same day. (Trial court order,
1/23/18.) Attorney Jasper was subsequently appointed to represent appellant
on direct appeal. (Id.)
On January 29, 2018, appellant filed pro se a “motion to seek
extraordinary relief/post-sentence” requesting an arrest of judgment or a new
5 The record demonstrates that the trial court noted, “the [trial c]ourt does
not entertain pro se petitions when defendants are represented; however,
I think this is a little different when defendants allege and raise the issue of
ineffective assistance of counsel.” (Sentencing hearing transcript, 1/22/18
at 2.)
6 We note that an amended sentencing order was filed on February 2, 2018,
and again on February 6, 2018, in which the trial court adjusted the number
of days appellant received as credit for time served. (Amended sentencing
order, 2/2/18; see also amended sentencing order, 2/6/18.)
-4-
J. S33031/19
trial.7 On February 2, 2018, Attorney Jasper requested additional time in
which to file counseled post-sentence motions. The trial court granted the
motion for extension of time on February 6, 2018, permitting Attorney Jasper
an additional 20 days to file a post-sentence motion. (Trial court order,
2/6/18.) Attorney Jasper subsequently filed a post-sentence motion on
February 23, 2018. On May 11, 2018, the trial court extended the 120-day
period in which to rule on the post-sentence motion by an additional 30 days,
pursuant to Pa.R.Crim.P. 720(B)(3)(c), in order for appellant to obtain a
psychological evaluation. (Trial court order, 5/11/18.) After conducting a
hearing on appellant’s counseled post-sentence motion, the trial court denied
appellant’s motion on July 17, 2018. (Post-sentence motion hearing
transcript, 7/17/18 at 8; see also trial court order, 7/17/18.)
On July 24, 2018, appellant filed a timely notice of appeal. The trial
court ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial
court subsequently filed its Rule 1925(a) opinion.
Preliminarily, we must address Attorney Jasper’s petition to withdraw
and accompanying Anders brief, both of which allege this appeal is frivolous.
7 We note that appellant’s pro se post-sentence motion was a legal nullity
because appellant was represented by counsel at the time. See
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007), appeal
denied, 936 A.2d 40 (Pa. 2007), citing Commonwealth v. Piscanio, 608
A.2d 1027, 1029 n.3 (Pa. 1992).
-5-
J. S33031/19
“When presented with an Anders brief, this [c]ourt may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.
2010) (citation omitted). In order to withdraw pursuant to Anders, “counsel
must file a brief that meets the requirements established by our Supreme
Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).”
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014) (parallel
citation omitted). Specifically, counsel’s Anders brief must comply with the
following requisites:
(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. (citation omitted).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to [her] client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option to
-6-
J. S33031/19
“(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.” Id.
“Once counsel has satisfied the above requirements, it is then this [c]ourt’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) (citation and internal quotation marks omitted).
Instantly, Attorney Jasper has satisfied the technical requirements of
Anders and Santiago. In her Anders brief, counsel has identified the
pertinent factual and procedural history and made citation to the record.
Counsel raises five claims that could arguably support an appeal, but
ultimately concludes that the appeal is wholly frivolous. Counsel has also
attached to her petition a letter to appellant, which meets the notice
requirements of Millisock.8 Appellant did not file a response to counsel’s
Anders brief or the petition to withdraw. Accordingly, we proceed to conduct
an independent review of the record to determine whether this appeal is
wholly frivolous.
8 We note that although the certificate of service contained in the Anders brief
does not state that a copy of the brief was sent to appellant, the Millisock
letter attached to the petition to withdraw states that a copy of the Anders
brief, as well as the petition to withdraw, were enclosed with the letter.
-7-
J. S33031/19
In her Anders brief, counsel raises the following issues on appellant’s
behalf:
[I.] Whether the [trial] court erred in denying
appellant’s request for a psychological
evaluation both at the time of the
post[-]sentence motion hearing for sentencing
purposes and at the time of trial and erred by
denying appellant’s request for a continuance in
order to obtain such an evaluation[?]
[II.] Whether the [trial] court erred in denying
[appellant’s] and [trial counsel’s] request for
new counsel when the relationship between
[appellant] and [trial counsel] was so
deteriorated that [trial counsel] could not
effectively represent [appellant] and for
denying [appellant’s] request for a continuance
to obtain new counsel[?]
[III.] Whether the [trial] court erred in denying
appellant’s motion for extraordinary
relief/judgment of acquittal made at the time of
trial when the verdict was against the weight of
the evidence and there was insufficient evidence
to establish the elements of the charges of
aggravated assault and resisting arrest[?]
[IV.] Whether the [trial] court erred in denying
appellant’s omnibus pre-trial motion[?]
V. Whether the [trial] court erred in denying
appellant’s request for the production of [Agent]
Stout’s disciplinary records when such records
were properly subpoenaed but never provided
to the defense[?]
Anders brief at 6 (extraneous capitalization omitted).9
9For ease of disposition, we have reordered and renumbered the issues raised
by counsel on appellant’s behalf.
-8-
J. S33031/19
Appellant first contends the trial court erred in denying his requests for
a psychological evaluation and a continuance to obtain such an evaluation.
(Id. at 13-15.)
Under Pennsylvania Rule of Criminal Procedure 578, all pre-trial
requests for relief, including requests for a psychiatric examination, shall be
included in one omnibus motion unless the interest of justice requires
otherwise. Pa.R.Crim.P. 578 and comment. “The denial of a continuance by
the trial judge constitutes reversible error only if there has been an abuse of
discretion.” Commonwealth v. Koehler, 737 A.2d 225, 236 (Pa. 1999).
Furthermore, the denial of a request for a psychological examination made on
the “eve-of-trial” does not amount to an abuse of discretion by the trial court.
Commonwealth v. Blakeney, 946 A.2d 645, 658-659 (Pa. 2008).
Here, a review of the record reveals that appellant failed to request a
psychological examination in his omnibus pre-trial motion. As the trial court
noted, “[t]he first mention of the request for a psychological evaluation was
made by [appellant] at jury selection.” (Trial court opinion, 12/7/18 at 3.)
The trial court concluded that appellant waived his request for a psychological
examination and further explained that it would “not delay the trial for a
request made the date of trial.” (Id.) At the post-sentence motion hearing,
the trial court further noted that based upon its own interaction with and
observations of appellant, appellant was competent and the evaluation
request was frivolous. (Id.; see also post-sentence motion hearing
-9-
J. S33031/19
transcript, 7/17/18 at 6.) Attorney Jasper also acknowledged that appellant’s
competency was “not an issue at all.” (Post-sentence motion hearing
transcript, 7/17/18 at 6.) Therefore, appellant’s claim that the trial court
erred in denying the requests for a psychological evaluation and a continuance
to obtain such an evaluation prior to trial is without merit.
Appellant also contends that the trial court erred in denying appellant’s
oral request to amend his post-sentence motion to include a claim of
ineffective assistance of trial counsel for failure to request a psychological
evaluation prior to sentencing. (Anders brief at 13.) Absent extraordinary
circumstances, not present here, claims of ineffective assistance of trial
counsel are to be deferred until collateral review. Commonwealth v.
Holmes, 79 A.3d 562, 576-577 (Pa. 2013). We nevertheless note that
because the record demonstrates that the trial court properly exercised its
discretion in denying appellant’s request for a psychological exam, finding
appellant to be competent, an ineffectiveness claim would fail.
Appellant next claims the trial court erred in denying appellant’s request
for new counsel when the attorney-client relationship had allegedly
deteriorated such that trial counsel could no longer effectively represent
appellant. (Anders brief at 15-17.)
It is within the trial court’s discretion to grant or deny a defendant’s
petition to replace court-appointed counsel. Commonwealth v. Floyd, 937
A.2d 494, 497 (Pa.Super. 2007), citing Commonwealth v. Grazier, 570 A.2d
- 10 -
J. S33031/19
1054, 1055 (Pa.Super. 1990). A defendant must establish irreconcilable
differences or substantial reasons that warrant the appointment of new
counsel. Floyd, 937 A.2d at 497; see also Pa.R.Crim.P. (stating, “[a] motion
for change of counsel by a defendant for whom counsel has been appointed
shall not be granted except for substantial reasons.”). It is not sufficient for
a defendant to merely allege a strained relationship, difference of opinion in
trial strategy, lack of confidence, or brevity of pretrial communications.
Floyd, 937 A.2d 497 (citation omitted).
Here, appellant makes the bald assertions that he was entitled to new
counsel because trial counsel failed to take an interlocutory appeal of the
denial of the omnibus pre-trial motion; trial counsel previously represented
appellant’s cousin; trial counsel did not request a psychological evaluation
until the day of trial; and appellant had contacted other private counsel. (Trial
transcript, 11/20/17 at 17-18; see also Anders brief at 16.) The trial court,
upon being presented with appellant’s request for new counsel on the day of
trial, stated, “I haven’t heard anything to indicate that the relationship has
deteriorated to the point that counsel cannot conduct the jury trial within the
limits of his rules of professional conduct.” (Trial transcript, 11/20/17 at 19.)
Upon review of the record, we discern no abuse of discretion on the part of
the trial court in denying appellant’s request for new counsel. Therefore,
appellant’s claim is without merit.
- 11 -
J. S33031/19
Next, appellant contends the trial court erred in denying his oral motion
for extraordinary relief made at the conclusion of the trial in which appellant
challenged the sufficiency of the evidence and argued the verdict was against
the weight of the evidence. (Anders brief at 18-21; see also trial transcript,
11/20/17 at 146-147.)
In addressing the sufficiency claim10 first, our standard and scope of
review is well settled.
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 proof or proving every element
of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying
10 We note that a sufficiency claim is waived when appellant fails to set forth
in his Rule 1925(b) statement the specific element or elements upon which
the evidence is insufficient. Commonwealth v. Williams, 959 A.2d 1252,
1257 (Pa.Super. 2008). Here, a review of appellant’s Rule 1925(b) statement
demonstrates appellant failed to set forth the specific element or elements of
the crime upon which appellant contends the evidence is insufficient, and
therefore, this claim is waived. (Appellant’s Rule 1925(b) statement, 8/9/18
at 2 ¶ 7.) Whenever the issue is raised in the context of an Anders brief,
however, we will consider this issue to determine its merit. Commonwealth
v. Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001) (holding that Anders
requires review of issues otherwise waived on appeal).
- 12 -
J. S33031/19
the above test, the entire record must be evaluated
and all the evidence actually received must be
considered. Finally, the trier 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.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).
A person is guilty of aggravated assault if he “attempts by physical
menace to put any of the officers, agents, employees or other persons
enumerated in subsection (c), while in the performance of duty, in fear of
imminent serious bodily injury.” 18 Pa.C.S.A. § 2702(a)(6). Agents of the
Pennsylvania Board of Probation and Parole are included in the protected class
of “other persons” enumerated in Section 2702(c). Id. at § 2702(c)(5). A
person is “menacing” for purposes of an aggravated assault conviction if,
based upon a totality of the circumstances, the behavior is “frightening
activity.” Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.Super.
2003), relying on Commonwealth v. Little, 614 A.2d 1146, 1151-1155
(Pa.Super. 1992).
A person is guilty of resisting arrest or other law enforcement “if, with
the intent of preventing a public servant from effecting a lawful arrest or
discharging any other duty, the person creates a substantial risk of bodily
injury to the public servant or anyone else, or employs means justifying or
requiring substantial force to overcome the resistance.” 18 Pa.C.S.A. § 5104.
A public servant is “discharging any other duty” for purposes of a conviction
- 13 -
J. S33031/19
of resisting arrest, if the public servant is discharging a legal duty, other than
an arrest, which is part of that person’s public service duties.
Commonwealth v. Karl, 476 A.2d 908 (Pa.Super. 1984) (stating that
examples of a public servant’s discharging legal duties other than arrest
include a police officer executing a search warrant or a fireman putting out a
fire).
Here, appellant argues that there was insufficient evidence to establish
that he was menacing towards Agent Stout, to support a conviction for
aggravated assault, and that he prevented Agent Stout from discharging any
other duty, to support a conviction of resisting arrest. (Anders brief at
18-21.) In viewing all of the evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner, we find that appellant was
menacing towards Agent Stout and that he prevented Agent Stout from
discharging her other duty. Specifically, Agent Stout tasered appellant, then
drive-stunned him, and finally threatened to shoot him after appellant was
found with a utility knife in his hand, placed it on the ground after being
ordered to do so, and then picked it right back up. (Notes of testimony,
11/20/17 at 36-40.) The record also reveals that Agent Stout, at the time of
her encounter with appellant, was investigating another parolee and that
appellant’s actions prevented her from conducting the investigation. (Id. at
- 14 -
J. S33031/19
34-45.) Therefore, appellant’s claim that there was insufficient evidence to
convict him of aggravated assault and resisting arrest is without merit.11
Appellant also contends that the verdict was against the weight of the
evidence. (Anders brief at 18-21; see also trial transcript, 11/20/17 at 147.)
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the evidence.
One of the least assailable reasons for granting or
denying a new trial is the [trial] court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Horne, 89 A.3d 277, 285 (Pa.Super. 2014), citing
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). The trial court
abuses its discretion “where the course pursued represents not merely an
error of judgment, but where the judgment is manifestly unreasonable or
11 We note that appellant also challenges the trial court’s denial of his
omnibus pre-trial motion that asserted there was insufficient evidence to
support each of his charges. (Anders brief at 10-12.) A determination that
there was sufficient evidence to support appellant’s convictions renders moot
any challenges as to whether there was sufficient evidence to support the
Commonwealth’s prima facie case against appellant. Commonwealth v.
Lee, 662 A.2d 645, 651 (Pa. 1995) (holding that a conviction renders moot
any allegations that the Commonwealth failed to establish its prima facie
case with respect to the charges filed against the accused). Consequently,
appellant’s challenge of the trial court’s denial of his omnibus pre-trial motion
is moot.
- 15 -
J. S33031/19
where the law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill-will.” Horne, 89 A.3d at 285-286
(citation omitted).
Here, a review of appellant’s argument reveals that appellant invites this
court to do nothing more than reassess the witnesses’ credibility and reweigh
the evidence in an attempt to convince us to reach a result different than the
one reached by the jury, as finder-of-fact. We decline appellant’s invitation.
Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013) (holding that the
role of the appellate court when addressing a weight claim is to determine if
the trial court exceeded its limit of judicial discretion or invaded the province
of the jury). Based upon the record before us, we discern no abuse of
discretion on the part of the trial court in denying appellant’s request for a
new trial because the verdict was against the weight of the evidence.
Finally, appellant claims the trial court erred in denying appellant’s
request for a continuance on the grounds that Agent Stout’s disciplinary
records were properly subpoenaed but never produced by the Commonwealth.
(Anders brief at 21-23.) We review the denial of a motion for a continuance
for an abuse of discretion. Koehler, 737 A.2d at 236.
Here, the record reflects that the trial court denied appellant’s motion
for a continuance because Agent Stout testified there was nothing in her
disciplinary file, and an email from the Williamsport District Director of the
Pennsylvania Board of Probation and Parole where Agent Stout worked
- 16 -
J. S33031/19
confirmed the same. (Trial court order, 11/20/17 at 10; see also trial
transcript, 11/20/17 at 14; Commonwealth Exhibit 4.) We discern no abuse
of discretion on the part of the trial court in denying appellant’s motion for a
continuance based upon the Commonwealth’s failure to produce non-existent
disciplinary records.
Upon review of the record, we conclude it supports Attorney Jasper’s
assessment that appellant’s appeal is wholly frivolous. Moreover, our
independent review of the entire record reveals no additional, non-frivolous
claims. Therefore, we grant counsel’s petition to withdraw and affirm the
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2019
- 17 -