Com. v. Johnson, E. ( 2014 )

J-S67017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDDIE JOHNSON
Appellant No. 553 WDA 2014
Appeal from the Judgment of Sentence March 26, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002460-2013
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 5, 2014
Appellant, Eddie Johnson, appeals from the March 26, 2014 aggregate
judgment of sentence of 351 to 702 months’ imprisonment after he was
found guilty of one count each of attempted criminal homicide, aggravated
assault, robbery, theft by unlawful taking, receiving stolen property,
recklessly endangering another person (REAP), and burglary.1
Contemporaneously with this appeal, counsel has requested leave to
withdraw in accordance with Anders v. California, 386 U.S. 738 (1967),
and its progeny. After careful review, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 3701(a)(1)(i), 3921(a), 3925(a),
2705, and 3502(a)(3), respectively.
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The trial court succinctly summarized the relevant facts of this case as
follows.
On May 28, 2013, Appellant entered without
permission into the medical offices of Dr. Justine
Schober, M.D., (“Schober”) in the city of Erie. Upon
encountering Dr. Schober, whose back was turned,
Appellant repeatedly bludgeoned her about the head
from behind with a heavy, metal, three-hole paper
punch, inflicting near-fatal injuries, almost severing
an ear and impairing her vision, hearing and
balance. Appellant then went into Schober’s
backpack and stole a Kindle Fire tablet, a leather
case and a silver cell phone charger.
Trial Court Opinion, 6/3/14, at 1.
On September 18, 2013, the Commonwealth filed an information
charging Appellant with the above-mentioned offenses. On January 17,
2014, Appellant proceeded to a three-day jury trial, at the conclusion of
which, the jury found him guilty of all charges. On March 26, 2014, the trial
court imposed an aggregate sentence of 351 to 702 months’ imprisonment.2
Appellant did not file a post-sentence motion. On April 4, 2014, Appellant
filed a timely notice of appeal.3
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2
Specifically, the trial court sentence Appellant to 240 to 480 months’
imprisonment for attempted criminal homicide, 102 to 204 months’
imprisonment for robbery, nine to 18 months’ imprisonment for burglary,
and no further penalty on the remaining four charges. All three sentences
were to run consecutively to each other.
3
Appellant and the trial court have complied with Pa.R.A.P. 1925. We note
that counsel who has filed the Anders brief with this Court is not the same
counsel who filed the Rule 1925(b) statement on Appellant’s behalf. In
(Footnote Continued Next Page)
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In her Anders brief, counsel raises the following issue on Appellant’s
behalf.
Did the trial court err in abusing its discretion when
it failed to give a sufficient precautionary instruction
to jurors that they must not read articles, watch
television, or listen to radio broadcasts about his
case, failed to instruct the jurors to inform the court
as soon as possible should they read or hear any
news accounts about the case and failed to take
necessary precautions to conduct careful inquiry of
jurors during the trial to determine if they had
received any information from the prejudicial news
stiroes [sic] about Appellant, the allegations at issue
in the case or about three unrelated burglaries for
which Appellant had already entered guilty pleas[?]
Anders Brief at 2.
When an Anders brief is filed, “[t]his Court must first pass upon
counsel’s petition to withdraw before reviewing the merits of the underlying
issues presented by [the appellant].” Commonwealth v. Orellana, 86
A.3d 877, 879 (Pa. Super. 2014) (citation omitted). For cases where the
briefing schedule was issued after August 25, 2009, as is the case here, an
Anders brief shall comply with the requirements set forth by our Supreme
Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in the Anders brief that
accompanies court-appointed counsel’s petition to
withdraw, counsel must: (1) provide a summary of
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(Footnote Continued)
addition, attached to the Rule 1925(b) statement is a hand-written note
from Appellant stating that the issue raised in counsel’s Anders brief is the
only issue he wished to raise on appeal. Appellant’s Rule 1925(b)
Statement, 4/4/14, at 2 n.1, Exhibit A, at 1.
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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.
Id. at 361. Additionally, counsel must furnish the appellant with a copy of
the brief, advise him in writing of his right to retain new counsel or proceed
pro se, and attach 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). See Commonwealth v. Daniels, 999 A.2d 590,
594 (Pa. Super. 2010) (holding that, “[w]hile the Supreme Court in
Santiago set forth the new requirements for an Anders brief, … the holding
did not abrogate the notice requirements set forth in Millisock that remain
binding legal precedent”) (footnote omitted). After counsel has satisfied
these requirements, “[w]e will … conduct our [own] independent review of
the issues raised by counsel and determine, using our own judgment,
whether the appeal is wholly frivolous.” Commonwealth v. Washington,
63 A.3d 797, 800 (Pa. Super. 2013) (citation omitted).
In the instant matter, we conclude that counsel’s Anders brief
complies with the requirements of Santiago. First, counsel has provided a
procedural and factual summary of the case with references to the record.
Second, counsel advances the sole issue Appellant expressly wished to raise
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on appeal. In addition, counsel has stated, upon review of the record, that
she discerned no non-frivolous issues that would arguably support an
appeal. Third, counsel concluded Appellant’s appeal is frivolous as “the jury
was instructed to avoid all media coverage of the trial on the first day of trial
and on the second day of trial.” Anders Brief at 5. Lastly, counsel has
complied with the requirements set forth in Millisock. As a result, we
proceed to conduct an independent review to ascertain if the appeal is
indeed wholly frivolous.
Instantly, Appellant argues the trial court abused its discretion in
failing to give sufficient cautionary instructions to the jury that it should
avoid any and all media coverage about this case as well as three other
burglaries to which he pled guilty. Anders Brief at 4. However, before we
may review this issue, we must determine whether it has been properly
preserved for our review.
It is axiomatic that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our
Supreme Court has repeatedly emphasized the importance of issue
preservation.
Issue preservation is foundational to proper
appellate review. Our rules of appellate procedure
mandate that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). By requiring that an issue
be considered waived if raised for the first time on
appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
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consider the issue. This jurisprudential mandate is
also grounded upon the principle that a trial court,
like an administrative agency, must be given the
opportunity to correct its errors as early as possible.
Related thereto, we have explained in detail the
importance of this preservation requirement as it
advances the orderly and efficient use of our judicial
resources. Finally, concepts of fairness and expense
to the parties are implicated as well.
In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations
omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.
2013) (citation omitted).
In the case sub judice, the Commonwealth avers that Appellant’s issue
on appeal is waived as “the trial record, including ample opportunities at
side-bar as well as outside the presence of the jury is devoid of a specific
request from [Appellant] concerning the issue he now presents on appeal.”
Commonwealth’s Brief at 4. Our review of the transcript reveals that the
trial court did instruct the jury to avoid all media coverage of this case, and
not to perform its own investigation, including searches on the Internet
during its opening instructions. N.T., 1/17/14, at 10. In addition, at the
conclusion of the first day of the trial, the trial court again instructed the jury
not to discuss the case within anyone. Id. at 55. On the second day of
trial, the trial court again instructed the jury to avoid all media coverage and
not to discuss the case with anyone. N.T., 1/21/14, at 237. In our review
of the transcript, we cannot find a single instance in which Appellant
objected or requested the trial court give an additional or different
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instruction to the jury. As a result, we deem this issue waived for failure to
raise the issue in the trial court. See In re F.C. III, supra; Miller, supra;
Pa.R.A.P. 302(a).
Based on the foregoing, we conclude the sole issue raised in
Appellant’s Anders brief is waived. As a result, we agree with counsel’s
assessment that the appeal is wholly frivolous. Accordingly, we affirm the
trial court’s March 26, 2014 judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Justice Fitzgerald concurs in the result of the memorandum.
Judge Donohue files a Concurring Memorandum in which Justice
Fitzgerald joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2014
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