Com. v. McBride, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AIRROION MCBRIDE :
:
Appellant : No. 590 EDA 2019
Appeal from the Judgment of Sentence Entered February 1, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004077-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED JULY 16, 2021
Airroion McBride (Appellant) appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his non-
jury convictions of strangulation, simple assault, and false imprisonment,1 for
an attack on his then-girlfriend. Contemporaneous with this appeal,
Appellant’s counsel, the Defender Association of Philadelphia, has filed a
petition to withdraw from representation and an Anders brief. See Anders
v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago 978 A.2d
349 (Pa. 2009). The Anders brief presents a claim that the evidence was
insufficient to support Appellant’s convictions. For the reasons below, we
grant counsel permission to withdraw and affirm the judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. §§ 2718(a)(1), 2701(a), 2903(a), respectively.
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The facts underlying this appeal, as summarized by the trial court, are
as follows:
On May 15, 2018, Appellant[ ] arrived at [his] and
Complainant’s mutual residence, at the time, located in the city
and county of Philadelphia. Complainant asked and received
Appellant’s cell phone. Complainant took the cell phone into the
bathroom and told Appellant that she would be deleting all
photographs and videos. Appellant proceeded to enter the
bathroom and snatch the phone from Complainant’s hand. After
retrieving the phone Appellant picked Complainant up by the collar
of her shirt and slammed her over the toilet. Appellant slammed
Complainant so hard that the toilet came off its hinges and began
to leak. Next, Appellant punched Complainant once in the mouth.
Complainant pushed her way out of the bathroom, grabbed the
children, and ran downstairs to escape the residence. Appellant
chased Complainant down the stairs of the residence and grabbed
Complainant from behind as she went for the front door.
Appellant pulled Complainant down to the ground and placed
Complainant in a chokehold for one (1) minute, where
Complainant was unable to breathe. Eventually, the neighbors
starting knocking on the walls and yelling about the commotion.
During the commotion Complainant was able to claw her way out
of the house and Appellant’s grip. Complainant then waited
outside for the police to arrive. While outside waiting for police to
arrive Appellant was trying to get Complainant to come back
inside the residence. Complainant sustained injuries of a cut to
her lower lip plus tenderness and soreness in her neck.
Trial Ct. Op., 1/13/21, at 3 (record citations omitted).
Appellant was arrested and charged with strangulation, simple assault,
false imprisonment, and unlawful restraint. The case proceeded to a non-jury
trial conducted on November 9, 2018. The trial court found Appellant guilty
of all charges except unlawful restraint. On February 1, 2019, the court
sentenced Appellant to an aggregate term of 11½ to 23 months’
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imprisonment, with immediate parole, followed by three years’ probation.
This timely appeal followed.
On March 20, 2019, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on or before
April 17, 2019. See Order, 3/20/19. Appellant complied with the court’s
directive, and filed a concise statement which challenged the sufficiency of the
evidence supporting his convictions. That same day, Appellant’s counsel
requested an extension of time to file a supplemental statement, explaining
that they “attempted to comply with [the] court’s directive by filing tentative
issues” for review, but that the notes of testimony from Appellant’s trial “have
not been transcribed or provided to counsel.” Appellant’s Request for
Extension of Time to File a Supplemental Statement of Errors Upon Receipt of
the Notes of Testimony, 4/17/19, at 2 (unpaginated). Thereafter, the trial
court “was made aware that the notes of testimony from the trial were
unavailable and could not be made available because the court reporter was
no longer an employee of the City of Philadelphia.” Trial Ct. Op. at 1-2. See
also Appellant’s Statement in Absence of Transcript Pursuant to Pa.R.A.P.
1923 (Appellant’s Statement), 9/16/19 at 1-2 (unpaginated) (explaining “the
disc containing the notes of testimony for [Appellant’s] trial was unreadable”)
Thus, on September 16, 2019, Appellant filed a Statement in Absence
of Transcript pursuant to Pa.R.A.P. 1923. See Pa.R.A.P. 1923 (“If . . . a
transcript is unavailable, the appellant may prepare a statement of the
evidence or proceedings from the best available means, including his
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recollection.”). The Commonwealth filed a response on February 25, 2020,2
indicating it was “unable to verify the accuracy of [Appellant’s] statement of
the evidence presented at his trial” because the Assistant District Attorney
who prosecuted him was no longer employed by the office. Commonwealth’s
Response to Appellant’s Proposed Statement in Absence of Transcript
Pursuant to Pa.R.A.P. 1923, 2/25/20, at 2. Nevertheless, the Commonwealth
stated it would rely on the trial court’s recollection, as well as “the information
that currently is contained in the existing record[.]” Id. The trial court
subsequently “accepted Appellant’s 1923 statement into the record and
amended it to incorporate the pre-sentence investigation report, mental
health evaluation and prior record score.”3 Trial Ct. Op. at 2.
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any of
the substantive issues raised on appeal. Commonwealth v. Bennett, 124
A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to withdraw from
representation on appeal
must: 1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
____________________________________________
2 The Commonwealth’s response appears to have been untimely. See
Pa.R.A.P. 1923 (permitting the appellee to “serve objections or propose
amendments” to an appellant’s statement in absence of transcript “within ten
days after service” of the statement).
3 Nevertheless, we note that an “amended” Rule 1923 statement is not
included the record certified on appeal.
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of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also:
(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.
Id., quoting Santiago, 978 A.2d at 361.
Here, the brief and petition to withdraw filed by the Defender Association
of Philadelphia comply with the requirements of Anders and Santiago. See
Cartrette, 83 A.3d at 1032. Moreover, the Defender Association attached a
copy of a letter it sent to Appellant, advising him of his right to proceed with
newly retained counsel or pro se and raise any additional points for this Court’s
attention. Appellant has not filed any response. Therefore, we proceed to
examine the issues identified in the Anders brief, and then conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” See Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.
Super. 2018) (en banc) (quotation omitted). If we agree with counsel’s
assessment, “we may grant counsel's request to withdraw and dismiss the
appeal[.]” Id. (citation omitted).
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The Anders brief identifies the following three issues for our review:
1. Was not the evidence insufficient as a matter of law to sustain
[A]ppellant’s conviction for strangulation pursuant to 18
Pa.C.S. § 2718[?]
2. Was not the evidence insufficient as a matter of law to sustain
[A]ppellant’s conviction for simple assault pursuant to 18
Pa.C.S. § 2701[?]
3. Was not the evidence insufficient as a matter of law to sustain
[A]ppellant’s conviction for false imprisonment pursuant to 18
Pa.C.S. § 2903[?]
Anders Brief at 3. We will address these issues together.
Our review of a challenge to the sufficiency of the evidence is well-
settled.
We review claims regarding the sufficiency of the evidence by
considering whether, “viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt.” Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact
— while passing on the credibility of the witnesses and the weight
of the evidence — is free to believe all, part, or none of the
evidence. In conducting this review, the appellate court may not
weigh the evidence and substitute its judgment for the fact-finder.
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations
omitted).
Here, Appellant was convicted of strangulation, simple assault, and false
imprisonment. A person is guilty of strangulation if they “knowingly or
intentionally impede[ ] the breathing or circulation of the blood of another
person by . . . applying pressure to the throat or neck.” 18 Pa.C.S. §
2718(a)(1). A conviction of simple assault requires proof that the defendant
“attempts to cause or intentionally, knowingly or recklessly causes bodily
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injury to another[.]” 18 Pa.C.S. § 2701(a)(1).4 “Bodily injury” is defined as
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.
Lastly, a person is guilty of false imprisonment if “he knowingly restrains
another unlawfully so as to interfere substantially with [her] liberty.” 18
Pa.C.S. § 2903(a).
Here, the trial court found the evidence presented by the
Commonwealth was sufficient to support all three of Appellant’s convictions.
See Trial Ct. Op. at 4-7. We agree.
Appellant’s conviction of strangulation is supported by Complainant’s
testimony that, as she attempted to leave the apartment building, Appellant
“grabbed her from behind[,] pulled her down to the ground and placed her in
a chokehold for approximately one minute.” Appellant’s Statement at 4.
Complainant also testified she was unable to breath during that time, and she
later experienced “tenderness and soreness in her neck.” Id. Her testimony
supports a finding that Appellant knowingly impeded Complainant’s breathing
by applying pressure to her neck. See 18 Pa.C.S. § 2718(a)(1).
____________________________________________
4 We note that Appellant was charged with simple assault under both
subsections (a)(1) and (a)(3). See Appellant’s Information, 6/15/18, at 1. A
conviction under Subsection (a)(3) requires proof that the defendant
“attempt[ed] by physical menace to put another in fear of imminent serious
bodily injury[.]” 18 Pa.C.S. § 2701(a)(3). Neither the Trial Disposition and
Dismissal Form, nor the Sentencing Order, specify the subsection under which
Appellant was convicted. Nevertheless, in its opinion, the trial court concludes
the evidence was sufficient to find Appellant guilty under Subsection (a)(1).
See Trial Ct. Op. at 5-6. Because the court sat as factfinder, we will presume
the court convicted Appellant of a violation of Section 2701(a)(1), and review
the sufficiency of the evidence pursuant to that subsection only.
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Complainant’s description of the events on the evening in question also
supports Appellant’s conviction of simple assault. She testified that Appellant
grabbed her “by the collar of her shirt and ‘slammed her over the toilet’” so
hard that the toilet came off its hinges and began to leak. Appellant’s
Statement at 3. Appellant then punched Complainant in the mouth, which
caused a cut on her lip, before choking her as she tried to leave. Id. at 3-4.
As the trial court opined: “[A]ppellant’s acts of throwing, punching, and
choking [Complainant] were sufficient [for the] court to conclude that
Appellant intended to cause Complainant bodily injury.” Trial Ct. Op. at 6.
See 18 Pa.C.S. § 2701(a)(1). We agree.
Finally, we conclude Complainant’s testimony that, as she attempted to
leave the building, Appellant “grabbed her from behind[,] pulled her down to
the ground and placed her in a chokehold,” was sufficient to support his
conviction of false imprisonment. Appellant’s Statement at 4. Appellant
knowingly restrained Complainant “so as to interfere substantially with [her]
liberty.” See 18 Pa.C.S. § 2903(a). Accordingly, Appellant’s challenge to the
sufficiency of the evidence supporting his convictions fails.
Moreover, our independent review of the record reveals no non-frivolous
issues to be raised on appeal. Accordingly, we affirm the judgment of
sentence and grant the Defender Association’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2021
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