Com. v. Mennella, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTHONY ALFRED MENNELLA :
:
Appellant : No. 1056 MDA 2020
Appeal from the Judgment of Sentence Entered June 30, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002470-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY ALFRED MENNELLA :
:
Appellant : No. 1074 MDA 2020
Appeal from the Judgment of Sentence Entered June 30, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002491-2019
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED OCTOBER 12, 2021
Anthony Mennella (Appellant) appeals from the judgments of sentence
imposed in the Lackawanna County Court of Common Pleas, following his
guilty plea, in two separate cases, to charges of harassment, recklessly
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* Retired Senior Judge assigned to the Superior Court.
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endangering another person (REAP), criminal mischief, and resisting arrest.1
Because these appeals raise the same sentencing claims in related cases, we
address them together. Contemporaneous with these appeals, Appellant’s
counsel, Donna DeVita, Esquire, has filed petitions to withdraw from
representation and Anders briefs. See Anders v. California, 386 U.S. 738(1967); Commonwealth v. Santiago 978 A.2d 349 (Pa. 2009). Both
Anders briefs, which are nearly identical, challenge the discretionary aspects
of Appellant’s sentences, which were imposed by the trial court at the same
hearing. Based upon our review, we grant counsel permission to withdraw
and affirm the judgments of sentence.
The relevant facts underlying these appeals are as follows.2 On June
24, 2019, a temporary Protection from Abuse (PFA) order was issued against
Appellant prohibiting him from contacting his ex-girlfriend (Dorie Scalamonti),
her two children, and her parents (Diane and John Scalamonti). See Trial Ct.
Op. at 2 n.2; N.T. Sentencing H’rg, 6/30/20, at 4. The PFA was later made
permanent, with an expiration date of June 24, 2022, after Appellant failed to
appear at a hearing. See Trial Ct. Op. at 2 n.2. The charges in both of the
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1 See 18 Pa.C.S. §§ 2709(a)(7), 2705, 3304(a)(5), 5104.
2 We note the trial court filed one opinion addressing the claims raised in both
appeals, and listing both trial court docket numbers. See Trial Ct. Op.,
4/12/21. Appellant complied with the requirements of Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), and filed two notices of appeal. See
Walker, 185 A.3d at 977 (separate notices of appeal must be filed when a
single order resolves issues arising on more than one trial court docket).
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cases on appeal stem from Appellant’s continued harassment of the
Scalamontis.
I. 1056 MDA 2020 (Harassment Case)
The trial court summarized the underlying facts of the first case:
[In September of 2019, John] Scalamonti . . . notified the Clarks
Summit Police Department that [ ] Appellant texted him on
September [1, 10, and 17,] 2019. Finally, [ ] Appellant
telephoned Mr. Scalamonti on September 22, 2019 threatening to
burn the house down and instructing Mr. Scalamonti to leave the
house with his wife and grandchildren. The next day on
September 23[rd], Dorie Scalamonti . . . notified the Clarks
Summit Police Department that [ ] Appellant continued to call her
and her family from different numbers and send threatening text
messages. Ultimately, while Dorie[ ] and her father were at the
Clarks Summit Police Department, [ ] Appellant continued to send
threatening text messages to Dorie. In doing so, [ ] Appellant
violated the [PFA] order. The [police] contacted [ ] Appellant,
notifying him of the existing [PFA]. Notwithstanding, [ ] Appellant
denied the existence of a [PFA] and refused to report to the Clarks
Summit Police Department.
Trial Ct. Op. at 1-2. That same day, the Clarks Summit Police filed a criminal
complaint against Appellant, charging him with terroristic threats 3 and
harassment. See Trial Ct. Docket, CP-35-CR-0002470-2019 (2470-2019),
Police Criminal Complaint, 9/23/19, at 2.
II. 1074 MDA 2020 (REAP Case)
On September 24, 2019, one day after Appellant was charged with
harassment by the Clarks Summit Police, the Taylor Police Department
responded to a report of a domestic incident in the Walmart parking lot. Trial
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3 See 18 Pa.C.S. § 2706(a)(1).
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Ct. Op. at 3. Dorie Scalamonti reported that Appellant harassed her to pick
him up at a Sheetz convenience store in Clarks Summit and drive him to the
Walmart in Taylor. Id. Dorie claimed that, in the Walmart parking lot,
Appellant “overpowered her” and grabbed her cell phone. Id. at 3-4. He then
forced her to go into the Walmart, where he proceeded to search her phone
and call random numbers. Id. at 4. Once they left the store, Appellant
retrieved his book bag from her car, and smashed her right rear window with
his fist. Id. When Dorie returned to the Walmart to call police, Appellant
begged her to leave before they arrived. Id. Appellant struck Walmart
employees who intervened to assist Dorie. Id. Dorie’s statements were
corroborated by witness accounts and surveillance video. Id.
When the police arrived, “witnesses directed police officers to a wooded
area behind Walmart where [ ] Appellant was observed running.” Trial Ct. Op.
at 3. Appellant ignored police commands, and the officers employed a K-9
unit to stop him. Id. As he struggled to pull away from the police dog,
Appellant kicked or punched the animal. Id. After the police handcuffed him,
Appellant admitted he stole Dorie’s cell phone. Id. Police later charged
Appellant with robbery, theft, simple assault, resisting arrest, disorderly
conduct, criminal mischief, and taunting police animals. See Trial Ct. Docket,
CP-35-CR-0002491-2019 (2491-2019), Police Criminal Complaint, 9/30/19,
at 2-4.
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III. Guilty Plea and Sentencing
On January 29, 2020, Appellant entered guilty pleas in both cases. At
Trial Court Docket 2740-2019, Appellant pled guilty to one count of
harassment, and at Trial Court Docket 2491-2019, he pled guilty to charges
of REAP,4 criminal mischief and resisting arrest. See N.T., 1/29/20, at 2-5.
The trial court directed the Lackawanna County Adult Probation Department
to prepare a pre-sentence investigation report. Trial Ct. Op. at 4. After
Appellant failed to appear for sentencing on June 16, 2020, the court issued
a bench warrant for his arrest. Id. He was apprehended two days later, and
his sentencing hearing on both matters was rescheduled for June 30th. See
Order, 6/22/20.
On June 30, 2020, the trial court sentenced Appellant to the following
consecutive terms of incarceration: (1) at Trial Court Docket 2470-2019, a
term of 1½ to 3 months for harassment; and (2) at Trial Court Docket 2491-
2019, a term of 9 to 24 months for REAP, 5 to 24 months for resisting arrest,
and 1½ to 3 months for criminal mischief. Appellant’s aggregate term of
incarceration was 17 to 54 months. The court imposed aggravated range
sentences for REAP and resisting arrest, and the statutory maximums for the
summary offenses of harassment and criminal mischief. See Trial Ct. Docket
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4 According to the trial court, the Commonwealth “orally amended” the
criminal information at Trial Docket 2491-2019 at the guilty plea hearing to
include the charge of REAP. Trial Ct. Op. at 4.
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2491-2019, Guideline Sentence Form, 6/30/20; 18 Pa.C.S. § 1105 (maximum
term for summary offense is 90 days’ imprisonment).
On July 7, 2020, Appellant filed a timely, joint motion for reconsideration
of sentence at both trial court dockets. He asserted the court sentenced him
at the “highest end of the standard range” for REAP and resisting arrest,5 and
at the “maximum sentence allowed by law” for the summary offenses. See
Appellant’s Motion for Reconsideration of Sentence, 7/7/20, at 2. He argued
the court did not “cite sufficient aggravating factors to support the sentences
imposed[,]” noting that he had been “released on bail for several months prior
to sentence without any violations[,]” and that he took “responsibility for his
actions and indicated a desire to better himself at sentencing.” Id. The trial
court entered an order denying Appellant’s post-sentence motion on July 23,
2020. These timely appeals followed.6
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5 As noted above, this is incorrect.
The trial court sentenced Appellant in the
aggravated range of the guidelines for both offenses.
6 Although Appellant received the July 23rd order — and filed notices of appeal
from Trial Court Dockets 2470-2019 and 2491-2019 on August 12th and
August 19th, respectively — that order was not transmitted to the clerk of
courts and, accordingly, not docketed. See Order, 9/4/20. Thus, on
September 4, 2020, the trial court entered another order correcting this
“administrative error.” Id. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.”). Thereafter, Appellant complied with the trial court’s order, entered
at each docket, directing him to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b).
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IV. Anders Briefs
As stated above, Appellant’s counsel has filed almost identical Anders
briefs and petitions to withdraw in the two appeals. 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 is
required to:
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
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 briefs and petitions to withdraw filed by Attorney DeVita
comply with the requirements of Anders and Santiago. See Cartrette, 83
A.3d at 1032. Moreover, Attorney DeVita attached a copy of the letters she
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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 a response at either docket. Therefore, we proceed to
examine the issues identified in the Anders briefs, 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).
V. Sentencing Claims
The Anders brief at Docket No. 1056 MDA 2020 (harassment case)
identifies the following two issues for our review:
A. Whether the sentencing court failed to state on the record the
reasons for the sentence imposed as required by 42 Pa.C.S. §
9721(B)[?]
B. Whether the sentence, the maximum sentence allowed, is
excessive, harsh, and arbitrary thus contrary to the
fundamental norms of sentencing in this Commonwealth[?]
Anders Brief (Harassment Case) at 4. The Anders brief at Docket 1074 MDA
2020 (REAP case) identifies the following two, nearly identical claims:
A. Whether the sentencing court failed to state on the record the
reasons for the sentences imposed on each of the offenses as
is required by 42 Pa.C.S. § 9721(B)[?]
B. Whether the sentences in the aggravated sentence ranges
and/or . . . the maximum sentences allowed are excessive,
harsh, arbitrary and were note based on any aggravated
circumstances, thus contrary to the fundamental norms of
sentencing in this Commonwealth[?]
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Anders Brief (REAP Case) at 4.
Both appeals challenge the discretionary aspects of Appellant’s
sentences. It is well-established that such challenges do not entitle an
appellant to “review as of right.” Commonwealth v. Caldwell, 117 A.3d
763, 768 (Pa. Super. 2015) (en banc) (citation omitted). Rather:
An appellant . . . must invoke this Court’s jurisdiction by satisfying
a four-part test: (1) whether appellant has filed a timely notice
of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id. (citation omitted).
In the present cases, Appellant filed a timely notice of appeal at each
docket, and both Anders briefs include the requisite concise statement of
reasons relied upon for appeal pursuant to Pa.R.A.P. 2119(f). See Anders
Brief (Harassment Case) at 9-10; Anders Brief (REAP Case) at 10-11.
However, we agree with the trial court and Commonwealth that Appellant did
not properly preserve the specific claims he now raises on appeal. See Trial
Ct. Op. at 6-7, 12-13; Commonwealth’s Brief (Harassment Case) at 5-7;
Commonwealth’s Brief (REAP Case) at 7-8.
As noted above, in order to preserve a challenge to the discretionary
aspects of a sentence, an appellant must preserve the specific claim at the
sentencing hearing or in a post-sentence motion. Here, Appellant did not
argue, either at the sentencing hearing or in his post-sentence motion, that
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the trial court failed to place reasons on the record for the sentence imposed
pursuant to Section 9721(b), or that his sentence was excessive. Rather,
Appellant asserted, in his post-sentence motion, that the trial court “did not
cite sufficient aggravating factors to support the sentences imposed,” and
noted the following mitigating factors: his low prior record score, his release
on bail absent any violations, and his acceptance of responsibility. Appellant’s
Motion for Reconsideration of Sentence at 2.
Appellant’s failure to preserve the arguments he now raises on appeal
is fatal to his claim. “Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302(a). This is particularly
true with regard to challenges to the discretionary aspects of a sentence, since
“[s]entencing is a matter vested in the sound discretion of the sentencing
judge,” which we will not disturb “absent a manifest abuse of discretion.” See
Commonwealth v. Davis, 241 A.3d 1160, 1177 (Pa. Super. 2020) (citation
omitted), appeal denied, 253 A.3d 211 (Pa. 2021). When an appellant does
not present a specific sentencing claim to the trial court, the court has no
opportunity “to reconsider or modify [its] sentence on [that] basis.”
Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003) (post-
sentence motion claiming sentence was unduly severe and abuse of discretion
under Sentencing Code did not preserve claims on appeal that court
excessively sentenced appellant to consecutive terms of imprisonment, failed
to consider the guidelines, and failed to state reasons on record for departure
from guidelines).
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The case before us exemplifies the importance of presenting a
sentencing claim, in the first instance, to the trial court. The sentencing
hearing in the present case was brief, and the trial court provided minimal
reasons on the record at the hearing for the sentences imposed. Nevertheless,
in its opinion, the trial court explained, in detail, the reasons it imposed
sentences in the aggravated range of the guidelines for REAP and resisting
arrest, and statutory maximum sentences for the summary offenses — based
in significant part on the extensive PSI prepared prior to sentencing. See Trial
Ct. Op. at 8-17 (Appellant: (a) continued to intimidate and threaten victims,
including ex-girlfriend’s elderly parents, even up to sentencing hearing; (b)
failed to seek recommended psychiatric or therapeutic treatment; (c) had four
“active multi-state warrants;” (d) “feigned ignorance and claimed that he was
never served with” PFA; (e) claimed his ex-girlfriend provoked him). Had
Appellant preserved this claim in his post-sentence motion, the trial court
could have conducted a resentencing hearing to ensure the reasons for the
sentences imposed were on the record.
Because Appellant waived the claims raised on appeal, we affirm the
judgment of sentence. Moreover, our independent review of the record
reveals no non-frivolous issues to be raised on appeal. Accordingly, we grant
Attorney DeVita’s petition to withdraw.
Judgments of sentence affirmed. Petitions to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
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