Com. v. Gonzalez-Iriarte, O. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
OLIVAR GONZALEZ-IRIARTE, : No. 94 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 18, 2014,
in the Court of Common Pleas of McKean County
Criminal Division at No. CP-42-CR-0000272-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 1, 2016
Olivar Gonzalez-Iriarte appeals from the December 18, 2014 judgment
of sentence following his conviction of aggravated assault, endangering the
welfare of children, simple assault, and recklessly endangering another
person (“REAP”).1 The trial court appointed Douglas J. Garber, Esq., as
appellant’s counsel for both the trial and his appeal. Attorney Garber filed a
petition to withdraw on June 2, 2015, alleging that the appeal is frivolous,
accompanied by an Anders brief.2 We will grant counsel’s withdrawal
petition and affirm appellant’s judgment of sentence.
1
18 Pa.C.S.A. §§ 2702, 4304, 2701, and 2705, respectively.
2
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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This case concerns injuries sustained by J.D., a two-year-old child.3
On the morning of March 25, 2014, Daniel Herbert,4 the victim’s
grandfather, drove Amanda Diaz-Polo, the victim’s mother and appellant’s
girlfriend, to work.5 (Id. at 35.) Herbert, suspecting that appellant may be
abusing the victim, activated the recording device on his cell phone and
placed his cell phone under the couch in the living room. (Id. at 31.) Some
30-45 minutes later, Herbert returned home and checked on the victim.6
(Id. at 39.) Herbert found the victim lying in bed staring at the ceiling.
(Id.) Herbert took the victim with him to the living room, so that Herbert
could listen to the recording. (Id. at 37.)
After taking the victim to the couch, Herbert noticed bruising on the
victim, and he noticed that the victim’s eyes were rolling toward the back of
his head. (Id.) After listening to an excerpt of the recording, which Herbert
described as “somebody gasping for their life,” Herbert took the victim to the
emergency room at Bradford Regional Medical Center. (Id. at 37, 40.)
3
It is common practice in this court to identify minors by their initials.
4
Although Daniel Herbert identified himself as such at trial and at the
suppression hearing, he was formerly known as Daniel Tucker. The witness
claims that he “divested” the name “Tucker.” (Notes of testimony, 11/18/14
at 48.)
5
Appellant is not the victim’s father.
6
Herbert moved in with Diaz-Polo, her two children, and appellant in early
March 2014. (Id. at 27-28.)
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Appellant and the victim’s four-year-old sister accompanied Herbert and the
victim to the emergency room. (Id.)
McKean County Children and Youth Services (“CYS”) was called to the
hospital for a possible case of child abuse. (Id. at 63.) Amanda Crowe of
CYS responded to the call, and photographed bruises on the victim’s head,
back, feet, neck, chin, legs, face, and stomach. (Id. at 64-66.) The victim
was diagnosed with blunt force trauma to the abdomen and a concussion.
(Id. at 83.) It was also determined that the victim sustained a broken foot
that was starting to heal. (Id.)
The Bradford Police arrested appellant and charged him with
aggravated assault, simple assault, endangering the welfare of children, and
REAP. Appellant filed a motion to suppress the recording made by Herbert,
which the trial court denied on August 8, 2014. A trial by jury was held on
November 18, 2014, and the jury convicted appellant on all counts. The
trial court sentenced appellant on December 18, 2014, to an aggregate
sentence of no less than 50 months’ imprisonment and no more than
156 months’ imprisonment, with credit for time served.
On January 12, 2015, appellant filed a notice of appeal. The trial court
ordered appellant to produce a concise statement of errors complained of on
appeal on January 23, 2015, pursuant to Pa.R.A.P. 1925(b). On April 24,
2015, Attorney Garber notified the trial court of his intention to file an
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Anders brief. Attorney Garber filed his petition to withdraw and Anders
brief with this court on June 2, 2015.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
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 additional
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points worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to
withdraw ... 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 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
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the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Garber’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) (citation omitted). See Commonwealth v.
Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (“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 Garber has
complied with all of the requirements set forth 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.
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Appellant’s sole issue on appeal is whether the Commonwealth
presented sufficient evidence to warrant convictions for aggravated assault,
endangering the welfare of children, simple assault, and REAP.
In reviewing the sufficiency of the evidence,
we view all evidence admitted at trial in the light
most favorable to the Commonwealth, as verdict
winner, to see whether there is sufficient evidence to
enable [the fact-finder] to find every element of the
crime beyond a reasonable doubt. This standard is
equally applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to a
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of
the evidence, the Court may not substitute its
judgment for that of the fact finder; if the record
contains support for the convictions, they may not
be disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted).
Moreover, when applying the above test, the
entire record must be evaluated and all evidence
actually received must be considered. Finally, the
finder of fact, while passing upon the credibility of
the witnesses and the weight of the evidence
produced, is free to believe all, part, or none of the
evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted); appeal dismissed, 54 A.3d 22 (Pa. 2012).
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We first review appellant’s aggravated assault conviction. The statute
defines aggravated assault as when a person “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to a child less than
six years of age, by a person 18 years of age or older.” 18 Pa.C.S.A.
§ 2702(a)(8).
The Commonwealth introduced photographic evidence of the victim’s
injuries taken by Amanda Crowe, a CYS employee. (Notes of testimony,
11/18/14 at 63.) Crowe took the photographs as part of her response to a
report of possible child abuse. (Id.) According to Crowe’s testimony, the
photographs depicted bruising on the victim’s head, back, feet, neck, chin,
legs, face, and stomach. (Id. at 64-66.) The jury also heard testimony
from Diaz-Polo and Herbert indicating that when Diaz-Polo and Herbert left
the house on the morning of March 25, 2014, the victim did not have any
visible injuries. (Id. at 11; 34.) Both Diaz-Polo and Herbert testified that,
upon leaving the house, appellant was the only adult in the house with the
victim and the victim’s four-year-old sister. The Commonwealth also played
Herbert’s tape recording of appellant’s interaction with the victim. Herbert
described the sounds heard on the tape as “more than cries. It sounded like
somebody gasping for their life.” (Id. at 37.) Through the testimony of
Crowe, Diaz-Polo, and Herbert, the Commonwealth sufficiently proved
beyond a reasonable doubt that appellant caused bodily injury to the victim.
Due to the fact that appellant was over 18 years of age and the victim was
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two years old at the time of the assault, the Commonwealth presented
sufficient evidence to warrant a conviction of aggravated assault.
We next review the sufficiency of the evidence of appellant’s conviction
of endangering the welfare of children. Endangering the welfare of children
is defined as, “[a] parent, guardian, or other person supervising the welfare
of a child under 18 years of age . . . commits an offense if he knowingly
endangers the welfare of the child by violating a duty of care, protection, or
support.” 18 Pa.C.S.A. § 4304(a)(1). This court established a three-part
test for determining whether the elements of endangering the welfare of
children have been met:
(1) the accused was aware of his duty to protect the
child; (2) the accused was aware that the child was
in circumstances that could threaten the child’s
physical or psychological welfare; and (3) the
accused has either failed to act or has taken action
so lame or meager that such actions cannot
reasonably be expected to protect the child’s
welfare.
Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations
omitted).
In the instant case, the Commonwealth proved all three elements of
endangering the welfare of children beyond a reasonable doubt. The record
indicates that appellant was the only adult present in the home at the time
the victim was assaulted and appellant was aware of this fact. The record
further indicates that appellant violated his duty to the victim when appellant
assaulted the victim, thereby placing the victim in circumstances that could
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endanger his physical and psychological wellbeing. See id. at 199.
Therefore, the Commonwealth has sufficiently proven, beyond a reasonable
doubt, the elements required to warrant a conviction of endangering the
welfare of children.
A review of the Commonwealth’s evidence for simple assault and REAP
is not necessary, as both offenses are lesser-included offenses of aggravated
assault. Commonwealth v. Brown, 605 A.2d 429, 432 (Pa.Super. 1992)
(finding that the elements of simple assault are met with a conviction for
aggravated assault); Commonwealth v. Smith, 956 A.2d 1029, 1036
(Pa.Super. 2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010)
(“Reckless endangerment is a lesser included offense of aggravated assault
and where the evidence is sufficient to support a claim of aggravated assault
it is also sufficient to support a claim of recklessly endangering another
person.”), quoting Commonwealth v. Thompson, 739 A.2d 1023,
1028 n.13 (Pa. 1999), cert. denied, 531 U.S. 829 (2000).
In sum, we find this appeal to be wholly frivolous, and our
independent review of the 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.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2016
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