Com. v. Fleming, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD L. FLEMING :
:
Appellant : No. 400 MDA 2023
Appeal from the Judgment of Sentence Entered February 14, 2023
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001449-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 20, 2023
Appellant Ronald L. Fleming appeals from the February 14, 2023
Judgment of Sentence entered by the Adams County Court of Common Pleas.
Appellant challenges the discretionary aspects of his sentence of 24 to 48
months of incarceration imposed after a jury found Appellant guilty of
Aggravated Assault, Terroristic Threats, Simple Assault, Indecent Exposure,
and Summary Harassment.1 Appellant’s counsel, Christian J. DeFilippo,
Esquire (“Counsel”), filed an Anders/McClendon Brief and a Petition for
Leave to Withdraw as Counsel.2 After careful review, we grant the Petition for
Leave to Withdraw as Counsel and affirm the Judgment of Sentence.
____________________________________________
1 18 Pa.C.S. §§ 2702(a)(3), 2706(a)(1), 2701(a)(1), 3127, and 2709(a)(1),
respectively.
2 Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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The relevant facts as set forth by the trial court are as follows:
On September 6, 2021, Appellant was an inmate at the Adams
County Adult Correctional Complex and was housed in a single cell
in block 1A, which is a restrictive housing unit. The cell had a
wicket, which is a 12” x 7” opening where food trays and other
items could be provided to the inmate. After Appellant finished
his dinner, Correctional Officer Devin Herring (hereinafter “CO
Herring”) opened the wicket to retrieve Appellant’s food tray.
Appellant thrust his arm through the wicket while holding the food
tray, hitting CO Herring in his testicles with the food tray.
Appellant responded, “I got you dickhead, I got you dickhead”.
CO Herring felt pain, received medical attention and was
diagnosed with a contusion to his left testicle with varicocele of
scrotum. On September 6, 2021, Appellant also exposed his
genitals to CO Herring and made verbal threats to CO Herring.
Appellant specifically stated “I’m gonna take your twin son, and
then I’m gonna stick my dick down his throat and kill him.”
Trial Ct. Op., 5/2/23, at 1-2 (footnote omitted).
On December 7, 2022, the jury found Appellant guilty of the above-
listed charges. On February 14, 2023, after reviewing the Presentence
Investigation Report, Sentencing Memorandums filed by defense counsel and
the Commonwealth, as well as a Psychological Evaluation and Competency
Assessment submitted by Appellant, the trial court sentenced Appellant to 24
to 48 months of incarceration for Aggravated Assault, with credit for time
served. The court did not impose any additional sentence for Terroristic
Threats or Indecent Exposure. Moreover, the court observed that the
convictions for Summary Harassment and Simple Assault merged with
Aggravated Assault for sentencing purposes. The court did not impose any
additional fines other than any fees, fines, and costs mandated by law, and
the court specifically did not impose a DNA fee “as it would constitute an undue
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financial hardship.”3 Trial Ct. Order, 2/14/23, at 2. Appellant did not file a
post-sentence motion.
Appellant filed pro se a Notice of Appeal on March 9, 2023. The trial
court directed Counsel to file a Pa.R.A.P. 1925(b) Statement of Matters
Complained of on Appeal. After filing an initial statement and obtaining the
court’s permission to file an amendment, Counsel filed an Amended Concise
Statement and Statement of Intent to Withdraw as counsel on April 21, 2023.
Counsel acknowledged that Appellant sought to challenge his sentence,
claiming it was (1) manifestly excessive based upon the court’s failure to
consider mitigating circumstances including Appellant’s mental health and (2)
based on prejudicial considerations. Counsel asserted that “no non-frivolous
matters could be raised on appeal” and stated that he informed Appellant of
his intent to file an Anders/McClendon Brief and a Petition to Withdraw as
Counsel with this Court. Amended Pa.R.A.P. 1925(b) Statement at ¶ 7.
Subsequently, Counsel filed an Anders/McClendon Brief in this Court,
setting forth the following issues asserted by Appellant:
____________________________________________
3 At the same hearing, the court sentenced Appellant on a separate docket,
CP-01-CR-1037-2021, for three counts of Aggravated Assault by a Prisoner.
These charges related to incidents where Appellant “threw urine and feces and
made threats of violence against Correctional Officers at the Adams County
Adult Correctional Complex between May 26, 2021 and June 11, 2021.” Trial
Ct. Op. at 1 n.1. The court imposed an aggregate term of six to twelve years
of incarceration, which the court imposed consecutively to the sentence under
review. Id. at 3 n.4. The court explained that it imposed the sentences
consecutively because each count involved a separate victim. Id. at 7.
Appellant does not challenge the sentence imposed at CP-01-CR-1037-2021
in this appeal.
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1. Appellant questions whether the Trial Court was manifestly
excessive in its [s]entencing of Appellant and failed to consider
mitigating circumstances, including but not limited to, the
psychological/psychiatric evaluation at [s]entencing?
2. Appellant also questions whether the Trial Court was excessive
in its [s]entencing of Appellant based on prejudicial
considerations?
Anders/McClendon Brief at 4. Appellant has not filed a response.
A.
“Before we address the merits of this appeal, we must determine
whether counsel has complied with the procedures provided in Anders and
its progeny.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.
2018) (en banc). Our Supreme Court requires counsel seeking to withdraw
to satisfy the following four requirements in an Anders/McClendon Brief:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). In so doing,
“[c]ounsel 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. Counsel must also “furnish a copy of the brief to [the
appellant] and advise him of his right to retain new counsel, proceed pro se
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or raise any additional points that he deems worthy of the court’s attention.”
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).
If counsel satisfied these requirements, we then must “make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5 (citation omitted). In so doing,
we will “conduct a review of the record to ascertain if on its face, there are
non-frivolous issues that counsel, intentionally or not, missed or misstated.”
Yorgey, 188 A.3d at 1197.
After review of the Anders/McClendon Brief, we find that Counsel
sufficiently complied with the requirements of Santiago and Millisock
through Counsel’s brief to this Court and by providing the necessary
information to Appellant. Accordingly, we turn to the issues presented.
B.
As noted, Appellant challenges the discretionary aspects of his sentence.
It is well settled that “[w]e do not review an appellant’s challenge to
discretionary aspects of a sentence as a matter of right.” Commonwealth
v. Schroat, 272 A.3d 523, 526 (Pa. Super. 2022). To invoke this Court’s
jurisdiction, an appellant challenging the discretionary aspects of sentence
must satisfy the following: (1) file a timely notice of appeal; (2) demonstrate
that they preserved the issue at sentencing or in a post-sentence motion; (3)
comply with Pa.R.A.P. 2119(f), which requires the appellant to “set forth in a
separate section of the brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a
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sentence[;]” and (4) present a substantial question as required by 42 Pa.C.S.
§ 9781(b). See Schroat, 272 A.3d at 527.
“A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Id.
(citation omitted). It is well-established “that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (citation omitted). Moreover, “[t]he imposition of consecutive, rather
than concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Moury, 992 A.2d 162, 171–72 (Pa. Super. 2010).
C.
In the Anders/McClendon Brief, Counsel conveyed that Appellant
sought to challenge the consecutive nature of the instant sentence and the
sentence imposed in the related matter. Anders/McClendon Brief at 8.
Second, Counsel stated that “Appellant believes that the lower court failed to
consider mitigating circumstances when Sentencing Appellant.” Id. Finally,
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counsel noted that “Appellant believes the lower court was excessive in its
Sentencing due to prejudicial considerations.” Id. 4
After conducting an independent review, we discern no non-frivolous
issues to be raised on appeal. Rather, as noted by the sentencing court and
Counsel, Appellant’s challenges fail to satisfy the requirements for this Court
to review the discretionary aspects of his sentence. Most significantly, as
noted by the sentencing court, Appellant did not preserve his claim by
objecting at sentencing or filing a post-sentence motion. Trial Ct. Op. at 6.
Additionally, his challenges to the imposition of consecutive sentences and the
court’s weighing of mitigating factors do not rise to the level of substantial
questions.5 Accordingly, we grant the Petition for Leave to Withdraw as
Counsel and affirm the Judgment of Sentence.
Petition for Leave to Withdraw as Counsel granted. Judgment of
Sentence affirmed.
____________________________________________
4 Counsel did not include a Pa.R.A.P. 2119(f) statement in the
Anders/McClendon Brief. Nevertheless, this Court does “not consider
counsel’s failure to submit a Rule 2119(f) statement as precluding review of
whether Appellant’s issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d
656, 661 (Pa. Super. 2015).
5 Moreover, the sentencing court and Counsel demonstrate that the sentence
was not excessive as the court imposed a sentence in the standard range, did
not impose additional sentences for the Terroristic Threats and Indecent
Exposure convictions, and considered Appellant’s mitigating circumstances,
including his psychological assessment.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/20/2023
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