Com. v. Gross, J. Jr. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES JOHN GROSS, JR. :
:
Appellant : No. 1247 MDA 2020
Appeal from the Judgment of Sentence Entered September 3, 2020
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000118-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 27, 2021
James John Gross, Jr., appeals from the judgment of sentence entered
on September 3, 2020, following his guilty plea conviction of simple assault,
resisting arrest, and harassment.1 Counsel has filed a petition to withdraw and
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), on the grounds that
Gross’s appeal is wholly frivolous. We grant counsel’s petition to withdraw and
affirm the judgment of sentence.
Gross pleaded guilty in June 2020 to the above referenced charges. The
charges stemmed from a drunken fight involving his father and brother. The
court sentenced him to an aggregate sentence of 10 to 36 months of
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2701(a)(1), 5104, and 2709(a)(1), respectively.
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incarceration. Gross filed a post-sentence motion claiming that the sentence
was too harsh, which the trial court denied. He appealed and, pursuant to
court order, his counsel filed a concise statement of matters complained of on
appeal indicating that he intended to file an Anders brief. He later followed
through and filed such a brief. Gross has not submitted a response.
Counsel’s Anders brief identifies two issues:
I. Did the trial court abuse its discretion when it sentenced
[Gross] to an aggregate sentence of 10 months to 36
months of incarceration?
II. Should this conviction stand, where [Gross] asserts he did
not strangle his father but where [Gross] did not plead guilty
to strangulation?
Anders Br. at 5 (some capitalization omitted).
Before we can address the merits of Gross’s claim, we must first address
counsel’s request to withdraw. See Commonwealth v. Daniels, 999 A.2d
590, 593 (Pa.Super. 2010). In order to withdraw from representing a criminal
defendant on appeal, “counsel 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 concluding that the appeal is frivolous.” Santiago, 978 A.2d at
361.
Here, counsel has satisfied all the requirements of Santiago. He
provided a summary of the procedural history and facts, with citations to the
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record; set forth the issues that he believes arguably support the appeal;
explained why the appeal would be wholly frivolous; and stated his reasons
for that conclusion. See id. Counsel has also given us, as required, a copy of
the letter to Gross informing him that counsel was requesting leave to
withdraw and was filing an Anders brief with this Court. The letter also
advised Gross of his right to retain new counsel or to proceed pro se in
response to the Anders brief. See Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa.Super. 2005).
We now conduct our own independent assessment of the record to
decide whether this appeal is frivolous and “if there are any additional,
nonfrivolous issues overlooked by counsel.” Commonwealth v. Flowers,
113 A.3d 1246, 1250 (Pa.Super. 2015); see also Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa.Super. 2018) (en banc).
In the first issue presented in the Anders brief, counsel addresses
Gross’s complaint that his sentence was too harsh. This claim goes to the
discretionary aspects of his sentence. See Anders Br. at 9-14. Such a
challenge is not heard on appeal as of right. Rather, we review such claims
only after we determine that there is a substantial question that the sentence
was not appropriate under the Sentencing Code. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). An appellant
desiring review of such an issue must ask the appellate court to review the
claim by setting forth in the appellate brief a concise statement of the reasons
relied upon for allowance of appeal with respect to the claim. See Pa.R.A.P.
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2119(f). We determine whether there is a substantial question about the
sentence based on the Rule 2119(f) concise statement. See Commonwealth
v. Radecki, 180 A.3d 441, 468 (Pa.Super. 2018).
We thus engage in a four-step inquiry before reaching the merits of a
challenge to discretionary aspects of sentencing:
(1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth “a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence[;]” and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Dempster, 187 A.3d at 272 (citation omitted)
Here, Gross timely appealed and preserved his claim in a post-sentence
motion, but his brief does not contain a Rule 2119(f) statement. However,
where counsel has filed an Anders brief, the failure to include a Rule 2119(f)
statement in the brief does not preclude us from determining whether the
appeal is wholly frivolous. See Commonwealth v. Zeigler, 112 A.3d 656,
661 (Pa.Super. 2015) (citations omitted). We therefore examine the issue.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super.
2014) (citation omitted). “When imposing a sentence, the sentencing court
must consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on victim and
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community, and rehabilitative needs of the defendant.” Commonwealth v.
Conte, 198 A.3d 1169, 1176 (Pa.Super. 2018) (citation omitted).
Here, the court considered evidence introduced at sentencing, including
PSI report and a statement from the victim, Gross’s father. See N.T.
Sentencing, 9/3/20, at 2. The court then considered the particular
circumstances of the offense and Gross’s particular circumstances and
imposed a sentence within the standard range of the Sentencing Guidelines.
See id. at 4-6. We perceive no reasonable basis in fact or law to challenge
the sentence as excessive, and we agree this issue is frivolous.
The second issue raised in the Anders brief concerns Gross’s assertion
that because allegations that he strangled his father were untrue, his
convictions cannot stand. See Anders Br. at 14-16. Counsel points out that
although the charges against Gross originally included strangulation, Gross
did not plead guilty to that charge. Rather, his guilty plea was only to Simple
Assault, Resisting Arrest, and Harassment, none of which requires
strangulation as an element of the offense. Id. at 15.
“Generally, a plea of guilty amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the legality of
the sentence, and the validity of the guilty plea.” Commonwealth v.
Morrison, 173 A.3d 286, 290 (Pa.Super. 2017) (citation omitted). For this
reason alone, a challenge to the sufficiency of the evidence would be wholly
frivolous. Moreover, as counsel points out, strangulation is not an element of
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any of the crimes to which Gross pleaded guilty.2 Hence, even if he could
challenge the sufficiency of the evidence to support the charges to which he
pleaded guilty, there is no legal basis on which to argue that the convictions
were infirm because Gross allegedly did not strangle his father.
We thus conclude that the issues counsel flagged in his Anders brief
are frivolous. Our review of the record reveals no other issue that would not
be wholly frivolous to pursue on appeal.3 We therefore grant counsel’s motion
to withdraw, and affirm Gross’s judgment of sentence.
Judgment of sentence affirmed. Motion to withdraw as counsel granted.
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2 For a simple assault conviction, the Commonwealth must prove beyond a
reasonable doubt that the defendant “attempt[ed] to cause or intentionally,
knowingly or recklessly cause[d] bodily injury to another.” 18 Pa.C.S.A. §
2701(a)(1). Bodily injury is the “[i]mpairment of physical condition or
substantial pain.” 18 Pa.C.S.A. § 2301.
A defendant may be convicted of harassment if the Commonwealth proves the
defendant, “with intent to harass, annoy or alarm another . . . communicate[d]
to or about [the complainant] any lewd, lascivious, threatening or obscene
words, language, drawings or caricatures[.]” 18 Pa.C.S.A. § 2709(a)(4). “[A]n
intent to harass may be inferred from the totality of the circumstances.”
Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa.Super. 2002).
Finally, the crime of resisting arrest occurs when a person “with the intent of
preventing a public servant from effecting a lawful arrest or discharging any
other duty, . . . creates a substantial risk of bodily injury to the public servant
or anyone else, or employs means justifying or requiring substantial force to
overcome the resistance.” 18 Pa.C.S.A. § 5104.
3 The transcript of the guilty plea hearing is not included in the certified record.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/27/2021
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