Com. v. Hammond, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ANTONIO HAMMOND :
:
:
Appellant : No. 1931 MDA 2019
Appeal from the Judgment of Sentence Entered November 4, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000602-2019
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 08, 2020
Antonio Hammond appeals from his November 4, 2019 judgment of
sentence imposed after a jury found him guilty of escape, access device fraud,
and theft of lost property. Appellant’s counsel, Michael Aegbuniwe, Esquire,
has filed a petition to withdraw pursuant to the legal framework of Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009). Following remand to permit Attorney Aegbuniwe to file an
appropriate brief, we affirm Appellant’s judgment of sentence and grant
counsel’s renewed application to withdraw.
Appellant’s underlying conviction stems from a number of fraudulent
purchases that he made using a misappropriated credit card. On December
23, 2018, Appellant obtained the credit card after a patron mistakenly left it
at the Applebee’s where he and his girlfriend, Jenifer Slaughter (collectively,
the “Defendants”), worked as servers. Thereafter, the Defendants went on a
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spending spree at various stores and merchants in the area of the Harrisburg
Mall. The credit card owner reported the unauthorized charges to the Swatara
Township Police Department.
Detective James Moyer reviewed surveillance footage of the purchases
taken from multiple stores, wherein the Defendants were readily identifiable.
On December 29, 2018, Detective Moyer proceeded to the Applebees where
the Defendants worked. He recognized both parties from the aforementioned
surveillance footage, and advised the Defendants that they were under arrest
based on the contents of the security videos. Contemporaneously, Officer
Brett DeGroat responded to the scene in a marked vehicle to assist in placing
the Defendants in physical custody.
Immediately after Officer DeGroat arrived, Detective Moyer seized
Appellant’s arm and explicitly advised him that he was under arrest and was
not free to leave. However, Appellant refused to cooperate. Instead, he broke
free from Detective Moyer and fled on foot. After a chase that lasted
approximately one-quarter of one mile, Appellant was taken into physical
custody without further incident. See N.T. Trial, 12/12/19, at 77-79, 101-02.
Appellant was convicted at a jury trial of the above-referenced offenses.
In addition to various restitution assessments and fines, Appellant was
sentenced to an aggregate term of twenty-one to forty-eight months of
incarceration. Appellant filed a timely notice of appeal. The trial court directed
Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b),
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and Appellant timely filed a one-issue statement challenging the sufficiency of
the Commonwealth’s evidence with respect to escape.
Thereafter, Attorney Aegbuniwe was appointed to take over Appellant’s
case. Counsel elected to file an application to withdraw averring that
Appellant’s potential claims on appeal were wholly frivolous pursuant to
Anders. On July 31, 2020, we filed a judgment order remanding this case to
the trial court. See Commonwealth v. Hammond, 2020 WL 4384227, at
*2 (Pa.Super. July 31, 2020). Specifically, we concluded that the first Anders
brief filed by Attorney Aegbuniwe did not “include any discussion or
justification of counsel’s conclusion that Appellant’s claims are wholly
frivolous,” and was therefore deficient. Id. Accordingly, we remanded the
case for the filing of a compliant brief.
On September 15, 2020, Attorney Aegbuniwe filed a revised Anders
brief containing an appropriate discussion of Appellant’s case and a renewed
application to withdraw. On October 13, 2020, the Commonwealth filed a
letter stating its intent not to file any further response.
On October 20, 2020, we filed an order noting that our review of the
certified record “cannot adequately confirm that Appellant has properly
received a copy of the application to withdraw and brief filed in his case[.]”
Order, 10/20/20, at 1. Therefore, we provided Attorney Aegbuniwe an
additional two weeks in which to serve Appellant with the necessary
documents and file proof of his compliance. Id. at 2.
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On October 30, 2020, Attorney Aegbuniwe filed a response that
included, inter alia, a United States Postal Service certified mail receipt,
indicating that the aforementioned documents were delivered to Appellant on
October 26, 2020. Moreover, Attorney Aegbuniwe also informed Appellant
that he could respond to counsel’s Anders filings within thirty days. Appellant
did not file a response.
Counsel’s revised Anders brief raises a single issue: “Whether there is
a non[-]frivolous issue regarding the sufficiency of the evidence to support
that Appellant was not under official detention, as is required for a conviction
of escape[?]” Revised Anders brief at 8. Ultimately, counsel concludes that
this issue is frivolous. Id. at 17-20 (“[A] jury could have reasonably found
that Appellant was under official detention and that a reasonable person would
not have felt free to leave.”) (citing Commonwealth v. Stewart, 648 A.2d
797, 798-99 (Pa.Super. 1994)).
Before we address the merits of this appeal, we must determine whether
counsel has complied with the technical procedures provided in Anders and
its progeny. See Commonwealth v. Yorgey, 188 A.3d 1190, 1195
(Pa.Super. 2018) (en banc). Counsel seeking to withdraw under Anders
must: (1) file a petition to withdraw stating that he or she has made a
conscientious examination of the record and determined that the appeal would
be frivolous; (2) 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;” (3) provide a copy of the Anders petition and
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brief to the defendant; and (4) advise the defendant of their right to “retain
new counsel, proceed pro se or raise any additional points worthy of this
Court’s attention.” Commonwealth v. Flowers, 113 A.3d 1246, 1248
(Pa.Super. 2015).
At a minimum, an Anders 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 counsel’s
reasons for so concluding. See Commonwealth v. Yorgey, 188 A.3d 1190,
1196 (Pa.Super. 2018) (en banc) (citing Santiago, supra at 361). In
particular, the brief “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.
Following remand and the entry of our October 20, 2020 order, we
discern that counsel has adequately satisfied the technical requirements of
Anders. On September 15, 2020, counsel filed an Anders-compliant petition
to withdraw and brief. Additionally, counsel has served a copy of the petition
and brief upon Appellant. Contemporaneously, counsel also forwarded a letter
to Appellant advising him of his rights to retain new counsel, proceed pro se
or raise additional points with this Court.
Counsel’s revised Anders brief is also compliant with the technical
requirements of Santiago. Specifically, the revised brief adequately
summarizes the relevant factual and procedural history of this case, and refers
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to the portions of the record that fail to support Appellant’s issue with
persuasive citations and discussion of pertinent case law. Accordingly, we
now proceed “‘to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Flowers, supra at 1249 (quoting Santiago, supra at 354 n.5).
The only potential appellate issue discussed in counsel’s Anders brief
concerns the sufficiency of the evidence underlying Appellant’s conviction for
escape at 18 Pa.C.S. § 5121(a) (“A person commits an offense if he unlawfully
removes himself from official detention . . . .”). As used in this section, the
phrase “official detention” has been defined to include being placed under
arrest. See 18 Pa.C.S. § 5121(e). Consistent with this definition, this Court
has construed the crime of escape to be applicable in certain situations where
law enforcement has made a “show of authority,” but has not yet taken a
defendant into physical custody. See Commonwealth v. Stewart, 648 A.2d
797, 798 (Pa.Super. 1994) (“It is not necessary that the suspect be physically
restricted by bars, handcuffs, or locked doors. Escape encompasses more
than the traditional notion of a person scaling a prison wall.”).
Specifically, this Court has held that the determination of whether a
defendant was subjected to an official detention by law enforcement requires
an objective examination of the surrounding circumstances:
Not all interactions between the police and citizens involve seizure
of persons. Only when the police have restrained the liberty
of a person by show of authority or physical force may we
conclude that a seizure has occurred. “An evaluation as to
whether a seizure has occurred must be viewed in the light of all
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the circumstances and whether a reasonable person would
have believed he or she was free to leave.”
Commonwealth v. Woody, 939 A.2d 359, 363 (Pa.Super. 2007) (quoting
Stewart, supra at 629-30) (emphasis added)).
Our holding in Stewart is particularly instructive on this inquiry. In that
case, this Court concluded that Stewart was subjected to an official detention
for the purposes of § 5121, when an officer approached Stewart’s stopped
vehicle with his weapon drawn and instructed him to turn off the ignition and
place his hands on the dashboard. Stewart, supra at 797-98. Stewart
disregarded this instruction, fled from his vehicle on foot, and was
apprehended following a brief footchase. He was charged and convicted of,
inter alia, escape. On appeal to this Court, he argued that he was never
subject to an official detention under § 5121.
We rejected Stewart’s argument, and affirmed his judgment of
sentence. Id. at 798-99 (holding that the above-described “show of authority
was sufficient to place Stewart in official detention as described in 18 Pa.C.S.
§ 5121”). Subsequent holdings have affirmed Stewart for the proposition
that an official detention may exist where “there existed a momentary period
in which the officer was able to demonstrate a show of authority to the
appellant[.]” Woody, supra at 362-63.
At trial, Detective Moyer and Officer DeGroat collectively and
consistently testified that Detective Moyer: (1) informed Appellant that he was
under arrest; and (2) attempted to place him in physical custody. See N.T.
Trial, 12/12/19, at 77-79, 101-02. Under the circumstances of this case, we
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believe that Detective Moyers’s actions were a sufficient “show of authority,”
such that a reasonable person would have believed that they were not free to
leave. Accord Stewart, supra at 797-98. Accordingly, we agree with
counsel’s conclusion that any challenge to the sufficiency of the evidence on
these grounds would be meritless.
Moreover, our “simple review of the record to ascertain if there appear
on its face to be arguably meritorious issues that counsel, intentionally or not,
missed or misstated[,]” has uncovered no additional potential issues.
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.Super. 2018) (en
banc). Therefore, we affirm Appellant’s sentence and grant counsel’s petition
to withdraw pursuant to Anders.
Petition of Michael Aegbuniwe, Esquire, to withdraw granted. Judgment
of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2020
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