Com. v. Smith, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JANAY SMITH :
:
Appellant : No. 1631 EDA 2020
Appeal from the Judgment of Sentence Entered June 18, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000183-2019
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: Filed: May 6, 2021
Appellant Janay Smith appeals nunc pro tunc from the judgment of
sentence imposed following her convictions for aggravated assault and related
offenses. Appellant’s counsel (Counsel) filed a petition to withdraw and an
Anders/Santiago1 brief. We grant Counsel’s request to withdraw and affirm.
On December 20, 2018, Chester County Police Officers Tyler Bury and
Patrick Dougherty observed Appellant’s vehicle fail to stop at three
consecutive stop signs. The officers initiated a traffic stop and approached
Appellant’s car. When the officers asked Appellant for her license and
registration, Appellant refused to provide them. The officers then attempted
to arrest Appellant. Officer Dougherty leaned inside the vehicle to remove
Appellant from her seat. While doing so, Appellant shifted the vehicle into
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1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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drive and accelerated, dragging Officer Dougherty in the process. As
Appellant drove away from the scene, Officer Dougherty was thrown from the
moving vehicle. Police eventually stopped Appellant’s vehicle and arrested
her.
After a jury trial, at which Appellant elected to proceed pro se with
stand-by counsel, Appellant was found guilty of aggravated assault, simple
assault, recklessly endangering another person (REAP), resisting arrest,
fleeing or attempting to elude a police officer, accidents involving death or
personal injury, and accidents involving death or personal injury while not
properly licensed.2 On June 18, 2020, the trial court sentenced Appellant to
an aggregate sentence of nine to twenty-three months’ incarceration, followed
by four years’ probation. Appellant filed no post-sentence motions.
On July 29, 2020, the Public Defender’s Office of Chester County filed a
Post Conviction Relief Act3 (PCRA) petition seeking the reinstatement of
Appellant’s direct appeal rights. The PCRA court issued an order restoring
Appellant’s direct appeal rights nunc pro tunc.
Appellant filed a notice of appeal, and the trial court ordered Appellant
to file a Pa.R.A.P. 1925(b) statement. On September 16, 2020, Counsel filed
a statement of intention to file an Anders/Santiago brief in lieu of a concise
statement. Appellant did not respond to Counsel’s Anders/Santiago brief.
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2See 18 Pa.C.S. §§ 2702(a)(6), 2701(a)(1), 2705, 5104; 75 Pa. C.S. §§
3733(a), 3742(a), and 3742.1(a), respectively.
3 42 Pa.C.S. §§ 9541-9546.
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The trial court declined to file a 1925(a) opinion, citing Counsel’s intent to file
an Anders/Santiago brief.
In the Anders/Santiago brief, Counsel identifies three issues:
1. Did the evidence presented at trial meet the weight and
sufficiency requirements to find Appellant guilty beyond a
reasonable doubt of aggravated assault, fleeing, accidents
involving personal injury, simple assault, [REAP], resisting
arrest, and accidents involving personal injury while not
properly licensed?
2. Was the sentence pronounced by the trial court lawful?
3. Was the trial otherwise free of error such that Appellant is not
entitled to a new trial?
Anders/Santiago Brief at 2-3.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
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Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
Santiago, 978 A.2d at 361.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
Here, Counsel complied with the procedural requirements discussed
above. Counsel filed a petition to withdraw, indicating that he thoroughly
reviewed the trial record and determined that the appeal is wholly frivolous.
Counsel also attached to his brief a copy of the letter he sent to Appellant,
which advises that Appellant may proceed pro se or retain private counsel to
raise any additional issues she believes should be brought to this Court’s
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attention. In addition, Counsel’s brief complies with Anders/Santiago
obligations set forth. Therefore, we will now undertake our own review to
determine whether Appellant’s appeal is wholly frivolous.
Weight of the Evidence
The first issue identified by Counsel is that the verdicts were against the
weight of the evidence. See Anders/Santiago Brief at 12.
An appellant wishing to challenge the weight of the evidence must
properly preserve her claim for review. Such a claim must be preserved orally
prior to sentencing, by a written motion before sentencing, or in a post-
sentence motion. See Pa.R.Crim.P. 607(A).
Here, Appellant represented herself at trial and did not preserve her
claim in a written motion before sentencing or orally prior to sentencing. See
Pa.R.Crim.P. 607(A). Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal. See Pa.R.A.P. 302(a). Therefore, we
conclude that Appellant’s weight of the evidence issue is unreviewable and
waived.
Sufficiency of the Evidence
Counsel next identifies Appellant’s claim that there was insufficient
evidence to sustain each of her convictions. See Anders/Santiago Brief at
13-14. However, it is unclear from Counsel’s Anders brief exactly which
element or elements of the crimes charged Appellant finds insufficient.
Moreover, Appellant has not responded to Counsel’s Anders brief, and
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therefore we are unable to determine what Appellant’s intended sufficiency
argument actually entails.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted), appeal denied, 204 A.3d 924 (Pa. 2019).
As Appellant’s sufficiency issue is actually a broad-based challenge to
each of her convictions, we will address each type of crime.
Aggravated Assault
“A person is guilty of aggravated assault if [she] . . . attempts by
physical menace to put [a police officer] . . . in fear of imminent serious bodily
injury[.]” 18 Pa.C.S. § 2702(a)(6). As applied to aggravated assault, an
attempt “is demonstrated by proving that the accused acted in a manner
which constitutes a substantial or significant step toward perpetrating serious
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bodily injury upon another along with the intent to inflict serious bodily injury.”
Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa. Super. 2003) (citation
omitted). Serious bodily injury is “[b]odily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.
§ 2301. “Intent can be proven by direct or circumstantial evidence; it may be
inferred from acts or conduct or from the attendant circumstances.”
Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation
omitted and some formatting altered).
Here, Officer Dougherty testified at trial that Appellant shifted her
vehicle into drive as he attempted to remove her from the vehicle and place
her under arrest. See N.T., 1/28/20, at 118-19. Officer Dougherty also
testified that Appellant accelerated her vehicle, that she dragged him in the
process, and that he was thrown from the car. See id. at 119. Appellant’s
conduct demonstrates that she attempted by physical menace to place Officer
Dougherty in fear of imminent serious bodily injury in the performance of his
duty. See Commonwealth v. Lloyd, 948 A.2d 875, 883 (Pa. Super. 2008)
(stating that swerving toward and forcing a police officer’s vehicle off the road
was sufficient evidence to sustain the appellant’s conviction for aggravated
assault). Even though Officer Dougherty did not sustain serious bodily injury,
Appellant’s conduct—namely, that Appellant drove away as Officer Dougherty
leaned inside the vehicle—shows that Appellant acted with specific intent to
place Officer Dougherty in fear of imminent serious bodily injury. See N.T.,
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1/28/20, at 124-26; see also Lloyd, 948 A.2d at 883. As such, the evidence
is sufficient to sustain Appellant’s conviction for aggravated assault. See 18
Pa.C.S. § 2702(a)(6).
Simple Assault
To sustain a conviction for simple assault, the Commonwealth must
prove that Appellant attempted to cause bodily injury to another. See 18 Pa.
C.S. § 2701(a)(1), (3). The Crimes Code defines “[b]odily injury” as
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.
The Commonwealth may meet its burden for this crime by establishing
merely that the defendant intended to cause bodily injury; proof of actual
bodily injury is not required. See Commonwealth v. Klein, 795 A.2d 424,
428 (Pa. Super. 2002). “This intent may be shown by circumstances which
reasonably suggest that a defendant intended to cause injury.”
Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 1994).
Here, as stated above, Officer Dougherty testified that he attempted to
remove Appellant from her car and place her under arrest. As Officer
Dougherty leaned inside the vehicle to remove Appellant from her seat,
Appellant shifted her vehicle into drive and accelerated, dragging Officer
Dougherty. See N.T., 1/28/20, at 118-19. This evidence shows that
Appellant intended to cause Officer Dougherty bodily injury and is therefore
sufficient to sustain Appellant’s conviction for simple assault. See 18 Pa. C.S.
§ 2701(a)(1), (3); see also Klein, 795 A.2d at 428.
REAP
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A person commits the offense of REAP if she “recklessly engages in
conduct which places or may place another person in danger of death or
serious bodily injury.” 18 Pa.C.S. § 2705. “[REAP] requires the creation of
danger, so the Commonwealth must prove the existence of an actual present
ability to inflict harm to another.” Commonwealth v. Shaw, 203 A.3d 281,
284 (Pa. Super. 2019) (citation omitted).
Here, the trial transcript establishes that Appellant drove away as Officer
Dougherty attempted to arrest Appellant. In doing so, Officer Dougherty was
thrown from Appellant’s moving vehicle. See N.T., 1/28/20, at 118-19. As
such, the evidence shows that Appellant’s conduct placed Officer Dougherty
in danger of death or serious bodily injury. See Shaw, 203 A.3d at 284. The
evidence is therefore sufficient to sustain Appellant’s conviction for REAP. See
18 Pa.C.S. § 2705.
Resisting Arrest and Fleeing, or Attempting to Elude a Police Officer
We next analyze Appellant’s convictions for resisting arrest and fleeing,
or attempting to elude a police officer.
Our Crimes Code defines resisting arrest as follows:
A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person 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. § 5104.
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The offense of fleeing, or attempting to elude a police officer is defined
as follows:
Any driver of a motor vehicle who willfully fails or refuses to bring
his vehicle to a stop, or who otherwise flees or attempts to elude
a pursuing officer, when given a visual and audible signal to bring
the vehicle to a stop, commits an offense as graded in subsection
(a.2).
75 Pa.C.S. § 3733(a).
Here, as stated above, the testimony at trial established that Appellant
prevented Officer Bury and Officer Dougherty from effectuating a lawful arrest
during a traffic stop. See N.T., 1/28/20, at 75-78, 118-19. The evidence also
established that Appellant fled the scene of the traffic stop and engaged police
in a high-risk chase. See id. at 121-22, 160-64, 67. Therefore, the evidence
is sufficient to find Appellant guilty of resisting arrest and fleeing or attempting
to elude a police officer. See 18 Pa.C.S. § 5104; see also 75 Pa.C.S. §
3733(a).
Accidents Involving Death or Personal Injury
We address Appellant’s intended challenge to her last convictions for
accidents involving death or personal injury and accidents involving death or
personal injury while not properly licensed.
The offense of accidents involving death or personal injury is defined as
follows:
The driver of any vehicle involved in an accident resulting in injury
or death of any person shall immediately stop the vehicle at the
scene of the accident or as close thereto as possible but shall then
forthwith return to and in every event shall remain at the scene
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of the accident until he has fulfilled the requirements of section
3744 (relating to duty to give information and render aid). Every
stop shall be made without obstructing traffic more than is
necessary.
75 Pa.C.S. § 3742(a).
Our Motor Vehicle Code defines accidents involving death or personal
injury while not properly licensed as follows:
A person whose operating privilege was disqualified, canceled,
recalled, revoked or suspended and not restored or who does not
hold a valid driver’s license and applicable endorsements for the
type and class of vehicle being operated commits an offense under
this section if the person was the driver of any vehicle and caused
an accident resulting in injury or death of any person.
75 Pa.C.S. § 3742.1(a).
Here, the evidence established that after Officer Dougherty was thrown
from the vehicle, Appellant drove away and failed to remain at the scene of
the accident. See N.T., 1/28/20, at 80, 85-95. Officer Dougherty sustained
injuries as a result of Appellant’s conduct. See N.T., 1/28/20, at 124-26.
Further, the record establishes that Appellant operated her vehicle with a
suspended license. Accordingly, the evidence is sufficient to support
Appellant’s convictions for accidents involving death or personal injury and
accidents involving death or personal injury while not properly licensed. See
75 Pa.C.S. § 3742(a); see also 75 Pa.C.S. § 3742.1(a).
In viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, we agree with Counsel’s assessment
that there was sufficient evidence to support Appellant’s convictions. See
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Palmer, 192 A.3d at 89. Hence, Appellant’s intended sufficiency of the
evidence claim is frivolous.
Discretionary Aspects of Sentencing
Counsel next identifies a challenge to the discretionary aspects of
sentencing. Specifically, Appellant claims that the trial court abused its
discretion and imposed an unlawful sentence. See Anders/Santiago Brief
at 16.
Initially, we note that “challenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.” Commonwealth
v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted and
formatting altered). An appellant challenging the discretionary aspects of her
sentence must invoke this Court’s jurisdiction by satisfying a four-part test to
determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (citations
omitted).
Furthermore, “[i]ssues not presented to the sentencing court are waived
and cannot be raised for the first time on appeal.” Commonwealth v.
Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citation omitted); see
also Pa.R.A.P. 302(a).
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Here, Appellant did not raise any challenges to the discretionary aspects
of her sentence. Nor did she file a post-sentence motion. Appellant therefore
waived this claim on appeal. See Tukhi, 149 A.3d at 888; see also Pa.R.A.P.
302(a). Accordingly, we agree with Counsel that challenging the discretionary
aspects of Appellant’s sentence is frivolous. See Commonwealth v.
Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (observing that when an issue
has been waived, “pursuing th[e] matter on direct appeal is frivolous”).
Jury Instructions
In the remaining issues raised in the Anders brief, Counsel identifies
two potential trial errors. Counsel first notes that the Commonwealth
misstated the elements of aggravated assault twice during closing argument.
See Anders/Santiago Brief at 19. However, the record shows that the trial
court corrected these misstatements of law and explained the elements of
aggravated assault to the jury. See N.T., 1/29/20, at 73-74, 89, 101-06.
Therefore, this claim is frivolous.
Trial Testimony
Counsel also notes that Officer Dougherty’s testimony may have unfairly
prejudiced Appellant at trial. See Anders/Santiago Brief at 20. Specifically,
Counsel claims that Officer Dougherty referred to Appellant as a “sovereign
citizen” and testified that he was familiar with the “sovereign citizen”
ideologies. See id. Counsel asserts that it could be argued that Appellant
was unfairly prejudiced by Officer Dougherty when he referred to Appellant as
a “sovereign citizen.” See id.- 13 -
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“The admission of evidence is committed to the sound discretion of the
trial court and an appellate court may reverse only upon a showing that the
trial court clearly abused its discretion.” Commonwealth v. McFadden, 156
A.3d 299, 309 (Pa. Super. 2017) (citation and quotation marks omitted). “The
trial court will be reversed only if an error in the admission of evidence
contributed to the verdict.” Id. (citation omitted).
Unfair prejudice, in this context, requires that the prejudice had the
effect of suggesting an improper basis for a conviction or inflaming the jury’s
passions such that it cannot render an impartial verdict. See
Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa. 2014). “The
admission of evidence becomes problematic only when its prejudicial effect
creates a danger that will stir such passion in the jury as to sweep them
beyond a rational consideration of guilt or innocence of the crime on trial.”
Commonwealth v. Sherwood, 982 A.2d 483, 498 n.25 (Pa. 2009) (citation
and quotation marks omitted).
Here, while Officer Dougherty referred to Appellant as a “sovereign
citizen” in his testimony, there is no evidence to suggest that the reference
was unfairly prejudicial to Appellant.4 In fact, Appellant referred to her “tribal
affiliations” as a sovereign citizen during trial. See N.T., 1/29/20, at 26. She
also implied that it was not out of the ordinary for Officer Dougherty to refer
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4 Our review of the record shows that Appellant preserved this issue by
objecting at trial to Officer Dougherty’s use of the term “sovereign citizen.”
See N.T., 1/28/20, at 105.
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to her as a sovereign citizen. See id. at 62. Therefore, we agree with Counsel
that this claim is wholly frivolous.
Conclusion
Based on our review of the record, we agree with Counsel that the issues
discussed in the Anders/Santiago brief are frivolous. Furthermore, our
independent review of the record does not reveal any additional, non-frivolous
issues. See Goodwin, 928 A.2d at 291. Accordingly, we grant Counsel’s
petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/21
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