Com. v. Lee, S. ( 2021 )

J-S47038-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SERENA ALICE NICOLE LEE, :
:
Appellant : No. 909 MDA 2020
Appeal from the Judgment of Sentence Entered January 15, 2020
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001237-2019
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 12, 2021
Serena Alice Nicole Lee (Appellant) appeals from the January 15, 2020
judgment of sentence imposed after a jury found her guilty of fleeing or
attempting to elude a police officer and recklessly endangering another
person (REAP). Appellant’s prior counsel, Enoch H. Jones, IV, Esquire, 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). In response, Appellant retained new counsel, Todd Mosser, Esquire,
who filed an advocate’s brief,1 raising a new claim. Upon review, we affirm
Appellant’s judgment of sentence and grant Attorney Jones’ petition to
withdraw.
1 We grant Appellant’s October 16, 2020 application for post-submission
communication.
*Retired Senior Judge assigned to the Superior Court.
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We glean the following from the record. Appellant’s charges stem from
a high-speed chase. On July 6, 2019, Pennsylvania State Police Troopers
Benjamin Forsythe and Brandon Olewine were on stationary patrol in a lot
adjacent to Buchanan Trail West, a roadway with a posted speed limit of 55
miles per hour in the area being patrolled. At approximately 6:00 p.m., the
troopers observed a black Chevrolet Camaro, driven by Appellant, traveling
towards them at a high rate of speed. According to radar, Appellant was
traveling 110 miles per hour. The troopers activated their lights and sirens.
Appellant passed without stopping, and the troopers pulled behind Appellant
onto Buchanan Trail West to initiate a traffic stop. Appellant slowed briefly
and then continued to accelerate to approximately 150 miles per hour.
During the ensuing chase, Appellant drove on the wrong side of the road and
forced a vehicle to maneuver away to avoid being struck. The troopers
reported the pursuit over radio. Trooper Christie Sages, who was in the area,
responded and parked along Buchanan Trail West with her lights on. As
Appellant approached Trooper Sages, Appellant turned off Buchanan Trail
West and onto Lemar Road, a residential street. Troopers Forsythe and
Olewine were unable to make the turn, so Trooper Sages continued the
pursuit onto Lemar Road. At that point, Trooper Sages activated her sirens.
As Trooper Sages followed Appellant around a curve on Lemar Road,
Trooper Sages lost sight of Appellant for a second. As Trooper Sages
continued to give chase, she passed Appellant who had stopped the Camaro
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in the front yard of a residence. Trooper Sages reversed her vehicle to
approach Appellant, but slid into a ditch on the side of the road in the
process. At that point, Troopers Forsythe and Olewine approached and found
Appellant’s vehicle in the yard. As Appellant exited the Camaro, the troopers
took Appellant into custody without incident.
Based on the foregoing, Appellant was charged with, inter alia, fleeing,
REAP, reckless driving, and trespass by motor vehicle. On November 14,
2019, Appellant proceeded to a jury trial on the first two counts and a
simultaneous bench trial on the two summary counts. The Commonwealth
presented testimony from Troopers Forsythe, Olewine, and Sages, and
showed the dash-cam video recording from Trooper Olewine’s vehicle.
Appellant testified in her defense. According to Appellant, she did not
normally drive the Camaro, which belonged to her father, and she was
speeding because she was late for work. According to Appellant, Lemar Road
was her “fun route when [] running late” because it has no traffic and she
can “go fast.” N.T., 11/14/2019, at 93. Appellant testified that she was
listening to “very loud” music while she drove and had forgotten to adjust
the rearview mirror. Id. at 93. Appellant further testified that she did not
see the troopers, and that she stopped in the front yard because the rotors
were malfunctioning, causing the Camaro to shake when braking at high
speeds. On cross-examination, Appellant agreed that her behavior
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endangered herself and others. Id. at 104-05. At the conclusion of the trial,
Appellant was found guilty as charged.
On January 15, 2020, the trial court sentenced Appellant on the
fleeing charge to 6 to 23 months’ imprisonment in the Franklin
County Jail, with parole at the expiration of the minimum,
provided Appellant had a home plan. On the [REAP] charge,
Appellant was sentenced to 24 months’ probation. The sentences
were ordered to run concurrently.[2]
On January 24, 2020, Appellant filed a post-sentence
motion, [challenging the sufficiency and weight of the evidence
and the discretionary aspects of her sentence]. On the same
date, Appellant filed a motion for bail pending appeal. After a
hearing on both motions on January 31, 2020, the trial court
granted Appellant’s motion for bail pending appeal and directed
Appellant to file an amended post-sentence motion within
fourteen days of the date of the order.
[Appellant sought and was granted an extension of time to
file the amended motion.] On March 6, 2020, Appellant filed an
amended post-sentence motion, withdrawing her claims with
regard to the sufficiency of the evidence and the weight of the
evidence. On April 6, 2020, the Commonwealth filed a
response[]. By opinion and order of court filed April 28, 2020,
the trial court denied Appellant’s motion.
Trial Court Opinion, 7/8/2020, at 1-2 (party designations altered; footnotes
and unnecessary capitalization omitted). This appeal followed.3
2 Attorney Jones represented Appellant at trial and at her sentencing
hearing. Following Appellant’s sentencing hearing, she retained Erich E.
Hawbaker, Esquire, as counsel.
3 Appellant pro se filed a notice of appeal. Thereafter, Attorney Hawbaker
was granted leave to withdraw and Attorney Jones was again appointed to
represent Appellant.
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We must first address the request to withdraw by Attorney Jones, with
the following principles guiding our review.
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.
Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa. Super.
2007) (citations omitted). Our Supreme Court has clarified
portions of the Anders procedure:
[I]n 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
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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.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017).
Although the Anders brief does not include citations to the record in
the statement of the case, we conclude that Attorney Jones has complied
substantially with the technical requirements set forth above. See
Commonwealth v. Prieto, 206 A.3d 529, 533 (Pa. Super. 2019) (citation
omitted) (“Substantial compliance with [Anders/Santiago] requirements is
sufficient.”). As discussed supra, Attorney Mosser has filed an advocate’s
brief on Appellant’s behalf, raising a new claim. Accordingly, “our
independent review is limited to those issues raised in the Anders brief. We
then review the subsequent [] counseled filing as we do any advocate’s
brief.” Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015).
The first two issues identified in the Anders brief challenge the
sufficiency of the evidence supporting Appellant’s convictions for fleeing and
REAP. Anders Brief at 13-15. Our standard of review for a challenge to the
sufficiency of the evidence is well-settled. “Whether sufficient evidence
exists to support the verdict is a question of law; our standard of review
is de novo and our scope of review is plenary.” Commonwealth v. Giron,
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155 A.3d 635, 638 (Pa. Super. 2017) (citation and quotation marks
omitted).
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom are sufficient for the trier of fact
to find that each element of the crimes charged is established
beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt
raised as to the accused’s guilt is to be resolved by the fact-
finder. As an appellate court, we do not assess credibility nor do
we assign weight to any of the testimony of record. Therefore,
we will not disturb the verdict 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.
Commonwealth v. Akhmedov, 216 A.3d 307, 322 (Pa. Super. 2019) (en
banc) (citations, quotation marks, and original brackets omitted). Fleeing or
attempting to elude a police officer is defined as “[a]ny driver of a motor
vehicle who willfully fails or refuses to bring his vehicle to a stop, or who
otherwise flees or attempts to elude a pursuing police officer, when given a
visual and audible signal to bring the vehicle to a stop[.]” 75 Pa.C.S. § 3733.
An individual commits REAP if she “recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705.
As detailed supra, the jury heard testimony from the three troopers
and Appellant, and observed a video of the pursuit. Upon review, we
conclude that the evidence, especially of Appellant’s high rate of speed, her
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failure to stop for the troopers, and her driving on the wrong side of the
road, was sufficient to establish the elements of fleeing and REAP. The jury
clearly found Appellant’s testimony that she was unaware of the pursuing
troopers to be incredible, and we will not disturb that credibility
determination. Accordingly, we agree with Attorney Jones that Appellant’s
sufficiency claims are frivolous.
The third and final claim raised in the Anders brief challenges the
discretionary aspects of Appellant’s sentence. Anders Brief at 16-18. We
consider this mindful of the following.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant has satisfied the first three requirements. However, in
the Pa.R.A.P. 2119(f) statement contained in the Anders brief, Attorney
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Jones avers that because “Appellant received a sentence that was squarely
within the standard range of sentences,” Appellant “is unable to put forth a
colorable argument that her sentence was inconsistent with a specific
provision of the Sentencing Code, or contrary to the fundamental norms
which underlie the sentencing process[.]” Anders Brief at 12 (citation
omitted). In Appellant’s amended post-sentence motion, she contended that
the sentence was unduly harsh because she will be unable to care for her
daughter and father while in jail, and the trial court failed to consider the
protection of the public, the gravity of the offense, and Appellant’s
rehabilitative needs. Amended Post-Sentence Motion, 3/6/2020.
This Court has held on numerous occasions that a claim of
inadequate consideration of rehabilitative needs does not raise
a substantial question for our review. Similarly, an allegation
that a sentencing court failed to consider or did not adequately
consider certain mitigating factors does not raise a substantial
question that the sentence was inappropriate.
See Commonwealth v. Pacheco, 227 A.3d 358, 375, (Pa. Super. 2020)
(citations omitted), appeal granted in part on other grounds, 237 A.3d 396(Pa. 2020). Appellant was sentenced within the standard range of the
sentencing guidelines. The trial court had the benefit of a pre-sentence
report, as well as letters from Appellant and her father. It is evident from
the record that the trial court considered at length all relevant factors,
including the effect of a jail sentence on Appellant’s daughter and father, but
ultimately concluded that Appellant’s conduct warranted a standard-range
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jail sentence on the fleeing charge. See Trial Court Opinion, 3/28/2020, at
4-7; N.T., 1/15/2020, at 3-9. Thus, we agree with counsel that Appellant
cannot put forth a substantial question that the sentence appealed from is
not appropriate, and that a discretionary-aspects-of-sentencing claim is
therefore frivolous.
Having reviewed the claims raised in the Anders brief, we now turn
our review to the single claim raised in Appellant’s brief: whether the trial
court erred in giving a jury instruction on consciousness of guilt “where there
was no factual evidence to support the issuance of that charge[.]”
Appellant’s Brief at 4.
We review this claim mindful of the following. “When reviewing the
propriety of a jury charge, an appellate court examines the charge as a
whole. The trial court has broad discretion in formulating jury instructions,
as long as the law is presented to the jury in a clear, adequate, and accurate
manner.” Commonwealth v. Lukowich, 875 A.2d 1169, 1174 (Pa. Super.
2005) (citations omitted). “Our Supreme Court has noted that [w]hen a
person commits a crime, knows that he is wanted therefor, and flees or
conceals himself, such conduct is evidence of consciousness of guilt, and
may form the basis in connection with other proof from which guilt may be
inferred.” Commonwealth v. Barnes, 593 A.2d 868, 869 (Pa. Super. 1991)
(citation and quotation marks omitted).
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By way of background, the Commonwealth proposed a consciousness
of guilt instruction based upon Appellant’s driving onto the yard as an
attempt to hide from the troopers. Appellant objected on the basis that
whether Appellant was hiding was a credibility issue for the jury to
determine, and that there was no evidence offered that indicated she was
hiding. N.T., 11/14/2019, at 108-09. The trial court overruled the objection,
finding that precluding the instruction was improper where “there are two
different versions of the evidence” and it was up to the jury to decide how to
apply the evidence. Id. at 109. Thereafter, the trial court provided the
following instruction to the jury.
Now, there was evidence that tended to show that
[Appellant] hid from the police by parking her vehicle [in the
yard,] an address where she did not have permission to be, in an
attempt to conceal herself from the police. [Appellant] maintains
that she parked [there] because she was fearful to continue
driving her shaking vehicle. The credibility, weight, and effect of
this evidence is for you to decide.
Generally speaking, when a crime has been committed and
a person thinks he or she may be accused of committing it and
he or she flees or conceals himself or herself, such flight or
concealment is a circumstance tending to prove the person is
conscious of guilt. Such flight or concealment does not
necessarily show consciousness of guilt in every case. A person
may flee or hide for some other motive and may do so even
though innocent.
Whether the evidence of flight or concealment in this case
should be looked at as tending to prove guilt depends on the
facts and circumstances of this case, especially upon the motive
that may have prompted the flight or concealment. And you may
not find [Appellant] guilty solely on the basis of evidence of
concealment.
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Id. at 135.
On appeal, Appellant argues that the evidence presented at trial
indicated Appellant “stopped her car in plain view. She did not try to drive
around to the back of the house nor did she attempt to flee the vehicle. It
was simply impossible for her to ‘conceal’ herself from several troopers who
were chasing her[.]” Appellant’s Brief at 8 (unnecessary capitalization
omitted).
Upon review, the evidence supported the inference that Appellant was
attempting to flee from the troopers when she turned onto Lemar Road and,
after losing sight of Trooper Sages’ vehicle around a bend, drove onto
someone’s front yard and began to exit her vehicle. The fact that she was
unsuccessful in her attempt to flee and/or conceal herself does not preclude
the trial court from offering the instruction and allowing the jury to
determine whether it believed Appellant’s explanations for her driving
pattern, or whether it believed the evidence presented supported Appellant
being conscious of her guilt. Accordingly, we discern no abuse of discretion
in the trial court’s consciousness-of-guilt charge.
Based upon the foregoing, Appellant is not entitled to relief.
Accordingly, we affirm Appellant’s judgment of sentence and grant Attorney
Jones’ petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/12/2021
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