Com. v. Roach, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANIEL JAMES ROACH
Appellant No. 2005 WDA 2013
Appeal from the Judgment of Sentence November 22, 2013
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000351-2013
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 09, 2014
A jury found Daniel Roach guilty of flight to avoid apprehension1, and
the trial court sentenced him to 36-72 months’ imprisonment. Roach filed a
timely notice of appeal, but his counsel advised that he would file an
Anders2 brief stating that there were no non-frivolous issues to raise on
appeal. Counsel subsequently filed an Anders brief in this Court along with
a motion to withdraw as counsel. We affirm, and we grant counsel’s motion
to withdraw.
While on parole from a New York felony conviction, Roach left New
York and traveled to Bradford, Pennsylvania. A New York court issued an
arrest warrant for Roach for leaving New York while on parole. New York
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1
18 Pa.C.S. § 5126.
2
Anders v. California, 386 U.S. 738 (1967).
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parole authorities transmitted the warrant to Bradford police, who arrested
Roach with the assistance of a Pennsylvania parole officer. A jury found
Roach guilty of flight to avoid apprehension. Certified Record, Item 13
(verdict slip). The verdict slip also inquired whether Roach’s crime in New
York was a felony or a misdemeanor. The jury answered that it was a
felony. Id.On November 22, 2013, the trial court imposed sentence. On
December 16, 2013, Roach filed a timely notice of appeal. On December 30,
2013, Roach’s counsel filed a Pa.R.A.P. 1925(c)(4) statement that he
intended to file an Anders brief.
In this court, Roach’s counsel filed an Anders brief and an application
to withdraw from representation pursuant to Anders and its Pennsylvania
counterpart, Commonwealth v. Santiago.3 Before addressing Roach’s
brief, we will first pass on the application to withdraw. 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
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3
978 A.2d 349 (Pa.2009).
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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 must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
appellant of his or her 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). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super.2007). “After establishing that the antecedent requirements have
been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).
Here, counsel stated in his motion to withdraw that he reviewed the
record and determined there were no non-frivolous issues to raise on appeal.
He explained that he notified Roach of his withdrawal request, supplied him
with a copy of the Anders brief, and sent him a letter explaining his rights
to proceed pro se or with substitute counsel and to raise any additional
points worthy of the court’s attention. See Letter to Roach, April 11, 2014,
attached as Appendix to the Motion to Withdraw as Counsel. The Anders
brief itself summarizes the facts and procedural history of the case with
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citations to the record, refers to evidence of record that might arguably
support the issue raised on appeal, analyzes the evidence in light of
Pennsylvania law, and concludes that the appeal lacks arguable merit.
Accordingly, counsel has substantially complied with the procedural
requisites of Anders and Santiago.
Counsel’s Anders brief identifies one issue for consideration: “Was the
evidence sufficient to support the jury’s verdict?” Anders Brief, pp. 3-6.
We agree with counsel that it was.
The following evidence was adduced during Roach’s jury trial. On April
15, 2013, Agent Powers of the New York State Division of Parole advised
Bradford Assistant Chief Michael Ward that New York authorities had issued
an arrest warrant for Roach based on Roach’s violation of New York parole.
Roach was on parole from a New York conviction for a class C felony. Agent
Powers advised that Roach would be found at 40 Pleasant Street in Bradford.
N.T., 11/13/13 (“Tr.”), pp. 6-11.
The trial court admitted into evidence a certificate of conviction from
New York stating that Roach had a Class C felony conviction “from the
Allegheny County Court[,] Belmont, New York.” Tr., pp. 10-11.
Agent Powers faxed the arrest warrant to Assistant Chief Ward.
Assistant Chief Ward and Officer David Feely, both of whom were in full
uniform, drove a marked police car to 40 Pleasant Street. Tr., pp. 6-11.
Two other officers also visited this address: Pennsylvania Parole Officer
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Hartman, who wore plain clothes with a badge hanging on a chain around
his neck and a bright yellow taser on his belt, and Bradford Police Officer
Lama, who wore plain clothes and a badge and also had a firearm and vest.
Tr., pp. 11-13.
Assistant Chief Ward and Officer Lama knocked on the door and
announced “police”, while Officer Feely and Agent Hartman covered the front
and back of the residence. After knocking, Assistant Chief Ward and Officer
Lama heard a loud banging sound inside the residence for about 30 seconds
which sounded like someone banging into an interior wall and/or crawling in
between the floors. When the noise subsided, Roach’s wife, Jennifer Dinch,
opened the door, and the officers stated that they had a warrant for Roach.
Dinch permitted them to enter and search the house, but the officers could
not find Roach. Tr., pp. 13-17, 32-35.
During the house search, Parole Agent Hartman, who was still outside
the house, observed Roach burst out of the basement door. Agent Hartman
yelled at Roach to stop, chased him across Pleasant Street into a yard, and
tackled him as other officers converged to help. Roach attempted to run
around Officer Feely during the chase. Feely struck Roach with his taser and
yelled that he was under arrest, but the taser wires did not penetrate him.
After Roach was tackled, he said "I'm done" and added that he was not
ready to go back. Tr, pp. 17-21. When Assistant Chief Ward arrived at the
scene, he recognized Roach from prior meetings. Tr., pp. 28, 43-53, 63-70.
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Roach testified that he had not been living at 40 Pleasant Street prior
to the incident in question but returned there because of death threats
against his wife and her son. Tr., pp. 78-79. Roach’s wife, Dinch, testified
that she had received threats and had notified the police, but that to her
knowledge, the police had not investigated the matter. Tr., p. 103. Roach
claimed that he thought the police officers were actually men coming to kill
his wife, so he ran away from the house to deflect the mens’ attention from
his wife. He admitted that he was in violation of New York parole by being in
Pennsylvania.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
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 [trier] of fact
while passing upon the credibility of witnesses and the
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weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
18 Pa.C.S. § 5126, entitled “Flight To Avoid Apprehension,” provides in
relevant part:
A person who willfully conceals himself or moves or
travels within or outside this Commonwealth with the
intent to avoid apprehension, trial or punishment
commits a felony of the third degree when the crime
which he has been charged with or has been
convicted of is a felony and commits a misdemeanor
of the second degree when the crime which he has
been charged with or has been convicted of is a
misdemeanor.
Id. The evidence demonstrates that (1) Roach was convicted of a felony in
New York; (2) he traveled to this Commonwealth from New York while on
parole for this felony; (3) he concealed himself in his wife’s residence in this
Commonwealth to avoid punishment or apprehension relating to his New
York conviction; and (4) he attempted to escape, i.e., “move or travel”
within this Commonwealth by fleeing from his wife’s residence when
Bradford police arrived. Thus, the evidence is sufficient to sustain Roach’s
conviction under section 5126.
Finally, our independent review of the record has revealed no non-
frivolous claims that Roach could have raised, and we agree with counsel
that this appeal is wholly frivolous. Accordingly, we affirm the judgment of
sentence.
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Judgment of sentence affirmed. Counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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