Com. v. Hayes, W. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM HAYES :
:
Appellant : No. 1899 EDA 2021
Appeal from the Judgment of Sentence Entered June 10, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003647-2019
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 11, 2022
Appellant, William Hayes, appeals nunc pro tunc from the judgment of
sentence of 5½ to 15 years’ incarceration, imposed after he entered an open
guilty plea to burglary (18 Pa.C.S. § 3502(a)(1)(ii)), criminal trespass (18
Pa.C.S. § 3503(a)(1)(ii)), theft by unlawful taking (18 Pa.C.S. § 3921(a)),
receiving stolen property (18 Pa.C.S. § 3925(a)), access device fraud (18
Pa.C.S. § 4106(a)(1)(ii)), and criminal mischief (18 Pa.C.S. § 3304(a)(5)).
On appeal, Appellant seeks to challenge the discretionary aspects of his
sentence. Additionally, Appellant’s counsel, Stuart Wilder, Esq., seeks to
withdraw his representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
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* Former Justice specially assigned to the Superior Court.
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2009). After careful review, we affirm Appellant’s judgment of sentence and
grant counsel’s petition to withdraw.
The trial court provided the following summary of the facts of Appellant’s
underlying convictions:
[The] affiant ... is Detective Neil Tropiano of Bensalem Township
Police Department…. On May 15, 2019, Bensalem police
responded to 3535 Third Avenue in Bensalem Township, Bucks
County, for a burglary. The responding officers met with the
homeowner, [Kathleen] Hayes. Ms. Hayes stated that an
unknown subject had entered her residence through a rear
second-floor bedroom window.
The [o]fficer entered the bedroom and observed the sliding
window to be open and [the] curtains to be off [of] the track.
There were also clothes on the floor and Ms. Hayes stated that
they had not been there the night before. She stated that she
went to bed between 10:30 and 11:00[]p.m. on May 14, 2019.
She stated that around 2:30 in the morning[,] a dog barking woke
her up and she heard the neighbor’s dog barking as well. She
stated that she did not hear anything in the residence[,] and she
went back to sleep. She advised that she found items to be
missing[,] … the window was open when she woke up in the
morning[,] and the screen was broken.
A ladder was observed in the rear of the residence leaning up
against the house. [Ms. Hayes] stated that the ladder should not
have been there[,] and it appeared to have been used by the actor
to gain access onto the roof on the first floor and to get into the
house through the second[-]floor window. The ladder [had been]
removed from underneath the rear deck of the residence where it
was kept[,] and a latched gate had to be opened to remove that
ladder; it was not in plain sight….
Ms. Hayes stated that the person who entered her residence went
into the kitchen and went through her purse. The [suspect] stole
her keys, and keys to her father’s, Joseph Sawicki[], 2014 Toyota
RAV-4. She advised that her HP laptop, charger, and her business
LG cell phone were also stolen from a table in the living room of
the residence. Those were items that were used to run the family-
owned business.
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The [suspect] also stole her father’s 2014 blue Toyota R[AV]-4.
Her father’s wallet and his LG cell phone were also inside the
vehicle when it was stolen. As the [suspect] left the residence,
[the suspect] broke the front porch gate and placed it on the side
of the fence area.
Upon further investigation, there were numerous charges on
Joseph Sawicki’s credit card, including a charge on May 15,
2019[,] at 11:09 in the morning at a Burger [K]ing in Philadelphia,
as well as on May 15, 2019[,] at a Quickie Mart in Philadelphia.
Ms. Hayes stated that she received a fraud alert from her credit
card company and found that her credit card had been used at …
two different Wawa locations. The first was on May 15th at
approximately 2:56 in the morning at a Wawa location in Trevose,
which is very close to the victimized residence. And again, on May
15, 2019, in Philadelphia, there were three attempted transactions
at 3:57 in the morning. Those transactions were not completed,
but they were for a substantial amount of money. The total value
of the completed and attempted transactions was over $500.
The video surveillance at a Wawa location where the suspect used
the stolen credit card was reviewed by [Detective Tropiano]. The
video showing a male subject buying a pack of cigarettes using
Ms. Hayes’s credit card at 2:56. The Wawa is 3.3 miles from the
burglary scene.
[Detective Tropiano] obtained still photographs from that video
and sent [them] to Ms. Hayes. Ms. Hayes reported to [Detective
Tropiano] that the male subject using the credit card was her ex-
[husband], … who is … [Appellant]. Ms. Hayes also said that the
keys on the counter in the surveillance Wawa pictures were her
keys.
[Detective Tropiano] reviewed the video surveillance of the rear
parking lot of the Wawa. This surveillance video showed [that]
Appellant[,] prior to using the credit card[,] was driving the 2014
Toyota RAV-4 [that] had been stolen from Mr. Sawicki and from
the residence. Appellant [was] observed walking in the area of
the vehicle and into the rear entrance of the Wawa location. Ms.
Hayes advised that … [Appellant] had lived at the home [prior] to
the burglary, and would have known that the ladder was kept
under the deck in the rear yard behind the gate.
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Trial Court Opinion (TCO), 9/29/21, at 2-3 (quoting N.T., 6/10/20, at 5-10)
(brackets added by the trial court omitted).
Based on these facts, Appellant was charged with the above-stated
crimes. He pled guilty on March 3, 2020. On June 10, 2020, the court
conducted a sentencing hearing, at the conclusion of which it imposed the
aggregate sentence set forth supra. Appellant filed a timely, post-sentence
motion. On August 17, 2020, the court conducted a hearing on that motion,
and then denied it.
Appellant filed a timely notice of appeal, but it was discontinued on
October 23, 2020. Appellant then filed a petition under the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541-9546, seeking the reinstatement of his
appellate rights. The court ultimately granted Appellant’s petition and
reinstated his appeal rights on May 21, 2021. Appellant filed the present,
nunc pro tunc appeal on June 6, 2021. The court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
informing him that “[a]ny issue not properly included in the statement timely
filed and served shall be deemed waived.” Order, 6/3/21, at 1. On June 14,
2021, Attorney Wilder filed a Rule 1925(b) statement on Appellant’s behalf,
preserving the following, single issue: “The [c]ourt erred in denying
[Appellant’s] motion to reconsider sentence, and to leave undisturbed a [5½]
year sentence[,] imposed in excess of that recommended for the aggravated
range, after hearing [Appellant’s] explanation for his post-guilty plea actions
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in contacting a victim.” Pa.R.A.P. 1925(b) Statement, 6/14/21, at 1. The trial
court thereafter filed its Rule 1925(a) opinion.
On November 12, 2021, Attorney Wilder filed with this Court a petition
to withdraw from representing Appellant. That same day, counsel also filed
an Anders brief, discussing the following two issues that Appellant seeks to
raise on appeal:
A. Should Appellant’s counsel be permitted to withdraw his
appearance because the appeal is wholly frivolous?
B. Did the [s]entencing [c]ourt err in imposing a sentence in
excess of that recommended by the Sentencing Guidelines and
failing to adequately explain how or if it used the guidelines to
fashion its sentence?
Anders Brief at 4.
Attorney Wilder concludes that Appellant’s sentencing issue is frivolous,
and that Appellant has no other, non-frivolous issues he could pursue herein.
Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. 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
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(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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his 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), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
In this case, Attorney Wilder’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claims, and he sets forth his conclusion that Appellant’s
appeal is frivolous. Counsel also explains his reasons for reaching that
determination and supports his rationale with citations to the record and
pertinent legal authority. Additionally, Attorney Wilder states, in a letter
attached to his petition that is directed to Appellant, that he is enclosing his
Anders brief for Appellant’s review. Counsel’s letter also informs Appellant
of the rights enumerated in Nischan. Accordingly, Attorney Wilder has
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complied with the technical requirements for withdrawal. We will now
independently review the record to determine if Appellant’s issue is frivolous,
and to ascertain if there are any other, non-frivolous issues he could pursue
on appeal.
Attorney Wilder states in his Anders brief that Appellant wishes to
challenge his sentence on the basis that “[t]he … court erred in imposing a
sentence in excess of that in the aggravated range of the sentencing
guidelines[.]” Anders Brief at 17. Specifically, Appellant claims that the court
gave
inadequate consideration to … Appellant’s remorse for his criminal
acts and the drug addiction that gave rise to his anti-social
behavior, as well as his failed attempts to obtain help for his
addiction, and the motivation, provided in the form of a newborn
son, to finally get serious about getting off drugs. The statement
of reasons at the time of sentence, N[.]T[.,] … [at] 54-63, do[es]
not explicitly mention that the sentence is a departure from that
recommended by the [s]entencing [g]uidelines. For the lower
court to give such short shrift flies in the face of the requirement
set forth in 42 Pa.C.S. § 9721(b) that the sentencing court take
into account the rehabilitative needs of the defendant. No
meaningful consideration was given to that factor by the [c]ourt.
Absent such consideration a sentence outside of the ranges
suggested by the [s]entencing [g]uidelines was unreasonable.
Id. at 18.
Initially, we note that Appellant’s claims that the court failed to consider
mitigating factors in this case, the sentencing guidelines, or Appellant’s
rehabilitative needs were not specifically raised in Appellant’s Rule 1925(b)
statement. Thus, those arguments are waived. See Pa.R.A.P. 1925(b)(4)(vii)
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(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
In any event, we would agree with Attorney Wilder that, although
Appellant’s sentencing arguments present substantial questions for our
review,1 they are frivolous on their merits. Initially, we reproduce the trial
court’s summary of the evidence presented at Appellant’s sentencing hearing:
[A]t the sentencing hearing, both victims testified. Joseph
Sawicki, Appellant’s former father-in-law and one of his victims
(hereinafter “Mr. Sawicki”), testified that Appellant worked at his
family business for 15 years and lived with him when he was
married to his daughter, Ms. Hayes. [N.T.] at [] 14. After
Appellant and Ms. Hayes’s divorce and prior to the burglary, Mr.
Sawicki saw Appellant wandering around the neighborhood on a
cold winter’s morning and discovered Appellant was homeless.
Id. at []15. Mr. Sawicki invited Appellant into his home, gave him
something to eat and drink, and allowed Appellant to stay there
for several weeks. Id. … Appellant even testified that Mr. Sawicki
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1 See Anders Brief at 15-16 (explaining why Appellant’s arguments constitute
substantial questions for our review); Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa. Super. 2013) (explaining that, where an appellant challenges
the discretionary aspects of his sentence, he must, inter alia, demonstrate
that “there is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b)”) (citation
omitted). See also Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014) (“[A]n excessive sentence claim, in conjunction with a claim that
the trial court failed to properly consider mitigating factors, raises a
substantial question.”) (citation omitted); Commonwealth v. Davis, 737
A.2d 792, 798 (Pa. Super. 1999) (“A claim that the sentencing court imposed
an unreasonable sentence by sentencing outside the guideline ranges raises
a ‘substantial question’ which is reviewable on appeal.”) (citation omitted);
Commonwealth v. Jackson, 585 A.2d 533, 534 (Pa. Super. 1991) (“Where
[an] appellant avers that the sentencing court failed to properly apply the
sentencing guidelines a substantial question as to the appropriateness of the
sentence has been raised.”) (citation omitted).
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was like a father to him and treated him with kindness. Id. at []
31.
Ms. Hayes testified that the burglary has had a continued,
significant impact on her life and the lives of those who live at the
burglarized residence. She also stated that they live in fear[,] so
much so that they have installed interior and exterior security
cameras and have secured all of the second-floor windows so that
they can no longer open and likened it to living in a cage[.] Id.at [] 17. She further revealed that the vehicle Appellant stole was
her father’s first brand-new car, and he never received the car
back because Appellant totaled it. Id. at [] 18. Perhaps even
more importantly, Ms. Hayes testified that the stolen computer
and phone were for their family business and contained client
information and schedules. Without that information, they were
unable to remember appointments and were fired by so many
clients they were unsure if they could continue to keep the
business at all. Id. at [] 18-19. Because Appellant worked for
the family business for fifteen years, he knew the importance of
the information on these devices before he stole them. Id. at []
19.
Moreover, at the sentencing hearing, this [c]ourt learned that
Appellant previously victimized Ms. Hayes in 2008 when he was
convicted of Terroristic Threats and Stalking after threatening to
break into her home, bash her head into a wall, and steal her
vehicle. Id. at [] 20. Additionally, despite a condition of bail that
Appellant have no contact with Ms. Hayes, this [c]ourt learned
that Appellant sent approximately three letters to Ms. Hayes
before he was sentenced. Id. at [] 26. The first two letters were
sent before Appellant pled guilty and they asked Ms. Hayes not to
come to court and not to cooperate with police so that charges
would be withdrawn. Id. at [] 24. The third letter was sent after
Appellant pled guilty and again asked Ms. Hayes to withdraw the
charges. Id. ….
TCO at 3-4.
In addition to considering the victims’ and Appellant’s testimony in
fashioning Appellant’s sentence, the trial court stated that it also “considered
all of the factors set forth in the Sentencing Code, including the protection of
the public, the gravity of the offense, the history, character, condition[,] and
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rehabilitative needs of [Appellant] and the sentencing guidelines….” Id. at 8;
see also N.T. at 54 (court’s stating it considered “the facts of the case,
[Appellant’s] background, the nature and character of [Appellant], which
includes [his] background and criminal history, [the] sentencing guidelines,
any impact the crimes have had upon the victim and the community, and, of
course, the need to protect others, and [Appellant’s] need for rehabilitation”).
Based on these factors, the court “concluded that a substantial term of
incarceration was required.” TCO at 8. The court offered a lengthy
explanation of the reasons for its sentence at the hearing, see N.T. at 54-61,
and it further summarized the basis for Appellant’s sentence in its Rule
1925(a) opinion, as follows:
[The s]entencing guidelines for Appellant’s [b]urglary conviction
included [a minimum sentence of] 60 months[’] (five years[’])
[incarceration] in the aggravated range. This [c]ourt gave a
sentence that exceeded the aggravated range for a variety of
reasons as explained below.
First, Appellant burglarized a home in the middle of the night and
stole items that he knew had both financial value and sentimental
meaning. N.T. … [at] 54. The items Appellant stole almost
resulted in the loss of the entire family business, and as such, the
impact this burglary has had on the victims is immeasurable.
Second, Appellant has a long history of domestic violence
convictions—some of which are against the same victim as this
case, Ms. Hayes. [Id. at] 56. Appellant’s criminal history is not
only lengthy, but it is also escalating, even after Appellant has
spent time in the State Correctional Facility. Id. …. In fact,
Appellant was released from jail for no more than 12 hours before
he committed this crime. Id. …. At his preliminary arraignment,
Appellant was advised that he could not have contact with Ms.
Hayes. Id. Despite this, Appellant proceeded to write to her
several times. Id. …. Even after his bail was revoked due to this
contact, Appellant continued to write to Ms. Hayes. Id. …. These
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letters demonstrated to this [c]ourt not only Appellant’s intent to
manipulate Ms. Hayes, but also his complete disregard for the
entire criminal justice system. Id. at [] 57. Furthermore, this
[c]ourt found Appellant’s own actions demonstrated the
imperative need to protect the community and the significant need
for rehabilitation. Id. at [] 59.
Appellant testified that he wrote to Ms. Hayes because he “thought
they would take a little mercy on [him]” and they would “cut [him]
a break.” Id. at [] 31. These statements reveal Appellant’s
selfishness and lack of understanding of the gravity of his actions.
Additionally, Appellant also testified that he had never harmed Ms.
Hayes in the 26 years he has known her[, id.,] … [y]et, Appellant
was convicted of several offenses where Ms. Hayes was the victim.
Therefore, this [c]ourt believed Appellant’s apology to be
disingenuous and just another attempt to manipulate the criminal
justice system by convincing this [c]ourt to impose a lesser
sentence. Id. at [] 61.
At the hearing for his Motion to Reconsider Sentence, [Appellant]
again issued an insincere apology, where he testified that the
letters were a bad mistake and would not happen again. N.T.[,]
8/17/[]20, [at] 5. Yet, the fact that he sent the letters after being
repeatedly told by different [j]udges that he was to have no
contact expressly demonstrates Appellant’s actions differ
substantially from his words. This [c]ourt found that Appellant’s
testimony amounted to nothing more than Appellant[’s] stating
he was dissatisfied with his sentence. Id. at [] 16. Therefore,
this [c]ourt found Appellant’s sentence appropriate and
necessary, and denied the Motion to Reconsider Sentence.
TCO at 8-10.
This record demonstrates that in fashioning Appellant’s sentence, the
court adequately considered the sentencing guidelines, Appellant’s
rehabilitative needs, his statements of remorse at the sentencing and post-
sentence motion hearings, and all other required factors. The court also
provided a thorough explanation for its sentencing decision, which was
supported by the facts and evidence presented to the court. Consequently,
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we would conclude that Appellant’s sentence is not unreasonable or an abuse
of the trial court’s discretion. As we discern no other, non-frivolous claims
that Appellant could present herein, we grant Attorney Wilder’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Murray joins this memorandum.
President Judge Emeritus Stevens files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2022
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