Com. v. Austin, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
JOSEPH AUSTIN,
Appellant No. 314 EDA 2016
Appeal from the Judgment of Sentence Entered January 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003166-2014
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 14, 2017
Appellant, Joseph Austin, appeals from the judgment of sentence of 25
to 50 years’ incarceration, imposed after he was convicted, following a non-
jury trial, of burglary, criminal trespass, terroristic threats, and simple
assault. On appeal, Appellant seeks to challenge the sufficiency of the
evidence to sustain his burglary conviction, and the legality of a mandatory
minimum sentence imposed in his case. Additionally, his counsel, Lauren
Baraldi, Esq., seeks to withdraw her representation of Appellant pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm
Appellant’s judgment of sentence and grant counsel’s petition to withdraw.
Attorney Baraldi summarizes the facts of Appellant’s case in her
Anders brief, as follows:
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In February of 2014[,] Patrice Simmons was living with her
children[,] Dshone Simmons [and] Mikell Simmons[,] in a one
bedroom apartment … in Philadelphia. Ms. Simmons was in a
relationship with [Appellant], whom she knew as Yusuf.
[Appellant] did not live at that location, nor was he a signatory
on the lease[,] but [he] was permitted to stay overnight a few
nights a week. At various points in their relationship[,
Appellant] did have a key to the apartment. On February 26,
2014[,] after an alleged verbal argument[,] Ms. Simmons told
[Appellant] he was no longer welcome at the apartment. Both
Patrice Simmons and Dshone Simmons testified that on that
date, upon Ms. Simmons[’] direction, Dshone confronted
[Appellant] and had the apartment key returned. In the early
morning hours of February 27[], 2014, [Appellant] allegedly
kicked the door to the apartment[,] splintering the wood[,] and
the door frame tore away from the sheetrock. It was alleged
that [Appellant] was agitated and yelling. Both Patrice and
Dshone Simmons testified that after entering the apartment,
[Appellant] struck Patrice Simmons. Ms. Simmons also testified
that [Appellant] whispered[,] “I have a gun outside, I came here
to kill you.”
Anders Brief at 3-4 (citations to the record omitted). Ultimately, Appellant
fell asleep on Ms. Simmons’ bed, and she was able to escape the apartment
with her children and call the police. See Commonwealth’s Brief at 2-3
(citations to the record omitted). Within twenty minutes of that call,
Appellant was arrested. Id. at 3.
On November 12, 2015, Appellant was convicted, following a non-jury
trial, of the above-stated offenses. After the preparation of a presentence
report and a psychological examination, Appellant proceeded to a sentencing
hearing on January 15, 2016. At the close thereof, he was sentenced to a
mandatory term of 25 to 50 years’ incarceration for his burglary conviction,
pursuant to 42 Pa.C.S. § 9714(a)(2) (requiring a mandatory minimum
sentence of 25 years’ imprisonment where the defendant is convicted of a
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crime of violence, and he was previously convicted of two or more such
crimes arising from separate criminal episodes). His conviction of criminal
trespass merged for sentencing purposes, and he received no further penalty
for his convictions of terroristic threats and simple assault.
Appellant filed a timely notice of appeal. The trial court then ordered
him to file a Pa.R.A.P. 1925(b) statement. His counsel responded by filing a
Rule 1925(c)(4) statement, indicating her intent to withdraw from
representing Appellant. On November 14, 2016, Attorney Baraldi filed with
this Court a petition to withdraw as counsel and an Anders brief. In her
brief, counsel addresses two issues Appellant seeks to raise on appeal - a
challenge to the sufficiency of the evidence to sustain his burglary
conviction, and a challenge to the legality of the mandatory minimum
sentence imposed in his case.
On December 8, 2016, this Court issued a per curiam order directing
Attorney Baraldi to file “a letter addressed to Appellant advising him of his
immediate right to proceed pro se or with privately retained counsel….” Per
Curiam Order, 12/8/16 (emphasis added). Attorney Baraldi timely complied
with that order. Appellant thereafter filed a pro se response to Attorney
Baraldi’s petition to withdraw, raising two additional claims. First, Appellant
contends that the trial court erred by denying his pre-sentence request for
new, court-appointed counsel. Second, Appellant argues that his trial
counsel acted ineffectively by failing to present certain evidence at trial.
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Before reviewing the merits of Appellant’s claims, we must first
evaluate Attorney Baraldi’s petition to withdraw. See Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief 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. 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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[']s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct 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) (citations and footnote omitted).
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In this case, Attorney Baraldi’s Anders brief complies with the above-
stated requirements. Namely, she includes a summary of the relevant
factual and procedural history, she refers to portions of the record that could
arguably support Appellant’s sentencing claim, and she sets forth her
conclusion that Appellant’s appeal is frivolous. She also explains her reasons
for reaching that determination, and supports her rationale with citations to
the record and pertinent legal authority. Attorney Baraldi has also supplied
Appellant with a copy of her Anders brief, and she sent him a letter
informing him of the rights enumerated in Nischan. Accordingly, counsel
has complied with the technical requirements for withdrawal. We will now
independently review the record to determine if Appellant’s issues are
frivolous, and to ascertain if there are any other non-frivolous issues he
could pursue on appeal.
Appellant first seeks to challenge the sufficiency of the evidence to
sustain his burglary conviction.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (citation
omitted).
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“[A] person commits the offense of burglary if, with the intent to
commit a crime therein, the person … enters a building or occupied
structure, or separately secured or occupied portion thereof that is adapted
for overnight accommodation in which at the time of the offense any person
is present[.]” 18 Pa.C.S. § 3502(a)(1)(ii). Here, Appellant contends that
the Commonwealth failed to present any evidence to prove that Ms.
Simmons’ “apartment was sufficient for overnight accommodations.”
Anders Brief at 6. Appellant further maintains that the Commonwealth did
not demonstrate that he had the intent to commit a crime inside the
apartment at the time he entered it. Id. at 6-7. Finally, Appellant argues
“that he was privileged to enter the apartment because Patrice Simmons had
previously furnished him with a key which gave him unfettered access to the
premises[,]” and because “he stayed at the apartment multiple times during
the week….” Id. at 7.
We agree with Attorney Baraldi that Appellant’s sufficiency arguments
are frivolous. First, “[t]o determine whether a structure is adapted for
overnight accommodation, a court considers ‘the nature of the structure
itself and its intended use, and not whether the structure is in fact
inhabited.” Commonwealth v. Rivera, 983 A.2d 767, 779 (Pa. Super.
2009) (citation omitted). Here, Ms. Simmons was asked on direct-
examination to describe how her apartment was “structured[,]” to which she
replied:
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[Ms. Simmons]: It’s an apartment building. It has about four
apartments, two on the second floor and two on the third floor.
It’s a private entry. The apartment building is secured by a
heavy metal door at street level, and then inside … you have
your own private entrance to your apartment.
N.T. Trial, 11/12/15, at 9. Regarding the layout of her specific apartment,
Ms. Simmons testified:
[Ms. Simmons]: It was a one-bedroom apartment, very, very
small. So when you walk in, it would be a wall to the left and
the bathroom would be straight in front of you. Directly next to
the bathroom would be a small kitchen and then you had one
room.
…
It was the living area, as well as a bedroom. It had a room
divider in the middle to section off into bedrooms.
Id. at 9-10.
We conclude that Ms. Simmons’ testimony was sufficient to
demonstrate that her apartment was structured for use as an overnight
accommodation. Notably, the apartment contained a bathroom, kitchen,
and bedroom. Additionally, the apartment was in a building containing three
other apartments. The building had a street-level entrance, and Ms.
Simmons’ apartment also had a private, individual entrance that was clearly
able to be locked, as Appellant had to forcibly break down the door to gain
access to the home. This evidence demonstrates that Ms. Simmons’
apartment was designed to be a private, secure dwelling used for overnight
accommodation.
Second, Appellant contends that the evidence was insufficient to
demonstrate that he had the specific intent to commit a crime inside the
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apartment at the time he entered it. In Commonwealth v. Russell, 460
A.2d 316 (Pa. Super. 1983), we declared that, “[i]n order to be convicted of
burglary, the defendant must have formed the intent to commit a crime
when he entered the victim’s residence, not after he entered.” Id. at 321.
In this case, the intent element of the burglary offense was sufficiently
proven. In particular, Ms. Simmons testified that earlier on the night of the
incident, Appellant had called her and “started making threats over the
phone….” Id. at 13. Later that night, she awoke to her son’s telling her
that Appellant was trying to get into the apartment. Id. at 13. Ms.
Simmons’ heard Appellant “banging” and “kicking” the door, and she then
heard the sound of “[w]ood splintering….” Id. at 14. Dshone Simmons also
testified that he heard Appellant “knocking and banging at the door[,]” and
“saying, ‘Open the door. Open the door.” Id. at 48. Dshone stated that he
heard Appellant kick the door in, and Appellant was “yelling profanities
towards [his] mom.” Id. at 48-49. In light of this testimony, we agree with
Attorney Baraldi that “[i]t was reasonable[,] given the totality of the
circumstances[, to infer] that [Appellant] had intended to terrorize and
threaten the occupants of the apartment because of the manner of entry.”
Anders Brief at 7; see also Russell, 460 A.2d at 321-22 (stating that the
specific intent for burglary “may be established by the defendant’s words or
inferred from his conduct or from the attendant circumstances.”) (citation
omitted).
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Third, Appellant avers that, because he had a key to Ms. Simmons’
apartment and stayed there several nights a week, the Commonwealth failed
to rebut his affirmative defense that he was licensed and/or privileged to
enter the apartment. See 18 Pa.C.S. 3502(b)(3) (“It is a defense to
prosecution for burglary if[,] … at the time of the commission of the
offense[,] … [t]he actor is licensed or privileged to enter.”). We disagree
with Appellant’s argument. Even if Appellant had previously been licensed
or privileged to enter Ms. Simmons’ apartment, the Commonwealth’s
evidence established that that permission had clearly been revoked prior to
his entry on the night in question. Specifically, Ms. Simmons testified that
the day before the incident, she had an argument with Appellant and
informed him that she “did not want him there at [her] apartment anymore.”
Id. at 13. Later that night, Ms. Simmons instructed Dshone Simmons to get
the apartment key from Appellant. Id. at 51. Accordingly, Dshone went to
the store where Appellant was working and asked Appellant for the key. Id.
While Appellant first refused to give Dshone the key, he eventually turned it
over to Dshone. Id. at 51-52. This evidence was sufficient to prove that
Appellant was not licensed or privileged to enter Ms. Simmons’ apartment in
the early morning hours on the day after he returned the key to her
apartment, and she informed him that he was not welcome there anymore.
Having found no merit to Appellant’s three claims regarding the
sufficiency of the evidence to sustain his burglary conviction, we agree with
Attorney Baraldi that Appellant’s first issue is frivolous.
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Next, Appellant seeks to argue that the court illegally imposed a
mandatory sentence pursuant to 42 Pa.C.S. § 9714, because the
Commonwealth failed to provide proper notice of the applicability of that
provision, or prove that he had prior convictions triggering it.
We conclude that both of Appellant’s arguments are frivolous. Prior to
trial, Appellant completed a written waiver of his right to a jury trial, which
explicitly stated that he would be subject to a 25-year mandatory minimum
sentence if he was convicted of burglary. See Written Waiver Colloquy,
11/10/15, at ¶ 39. Appellant indicated he understood the potential
applicability of that mandatory sentence by writing “yes” after that
paragraph of the colloquy, and by signing his name at the end of the
colloquy form. See id. Additionally, the day before the sentencing
proceeding, the Commonwealth filed a “Sentencing Memorandum” again
stating that Appellant faced the mandatory minimum term of 25 years’
incarceration pursuant to 42 Pa.C.S. § 9714(a)(2). See Commonwealth’s
Sentencing Memorandum, 1/14/16, at 3. At the start of the sentencing
hearing, defense counsel confirmed that he had received and reviewed that
sentencing memorandum. N.T. Sentencing, 1/15/16, at 7. Based on this
record, we conclude that Appellant had reasonable notice of the applicability
of the mandatory sentence under 42 Pa.C.S. § 9714(a)(2).
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We also conclude that the Commonwealth presented sufficient
evidence to support the applicability of that mandatory-minimum sentencing
provision. At the sentencing hearing, the Commonwealth detailed
Appellant’s two prior convictions which triggered the applicability of the ‘third
strike’ provision of section 9714(a)(2). Id. at 8-9; 10-11. The
Commonwealth also entered into evidence the sentencing memorandum that
outlined Appellant’s prior convictions. Id. at 10. Appellant did not challenge
the accuracy of his criminal record; thus, the court did not schedule a
hearing to admit further evidence regarding Appellant’s prior convictions.
See 42 Pa.C.S. § 9714(d) (“If the offender … contests the accuracy of the
record, the court shall schedule a hearing and direct the offender and the
attorney for the Commonwealth to submit evidence regarding the previous
convictions of the offender.”). Thus, we conclude that the Commonwealth
presented sufficient evidence to demonstrate the applicability of section
9714(a)(2), and Appellant’s sentence under that provision is not illegal.
In sum, we agree with Attorney Baraldi that the two issues she
addresses in her Anders brief are meritless. We now will examine the two
claims Appellant raises in his pro se response to counsel’s petition to
withdraw.
First, Appellant contends that the trial court erred by denying his pre-
sentence motion for the appointment of new counsel. By way of
background, Appellant was represented by David Santee, Esq., at trial and
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at sentencing. Prior to the sentencing hearing, Appellant filed a pro se
motion seeking, inter alia, a new court-appointed attorney. At the
sentencing proceeding, the court addressed that motion, listening to
Appellant’s arguments that Attorney Santee had acted ineffectively at trial
by not presenting certain evidence, and that counsel continued to act
ineffectively by not presenting such evidence at the sentencing hearing.
See N.T. Sentencing Hearing, 1/15/16, at 18-20; 26-29. Ultimately, the
court denied Appellant’s motion for a new attorney, concluding that Attorney
Santee could seek to withdraw after sentencing, and after filing a notice of
appeal on Appellant’s behalf. Id. at 31-32.
Appellant now contends that the trial court erred in this decision. He
claims that because of the court’s decision, he “was denied counsel and thus
[was] denied a fair trial and an opportunity to present mitigating evidence at
the time of sentencing….” Appellant’s Response to Petition to Withdraw,
3/13/17, at 2.
Initially, we note that:
“the right to appointed counsel does not include the right to
counsel of the defendant's choice.” Commonwealth v.
Albrecht, 554 Pa. 31, 720 A.2d 693, 709 (1998). Moreover,
[w]hether to grant a defendant's petition to replace court
appointed counsel is a decision which is left to the sound
discretion of the trial court. As a general rule, however, a
defendant must show irreconcilable differences between
himself and his court appointed counsel before a trial court
will be reversed for abuse of discretion in refusing to
appoint new counsel.
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Commonwealth v. Grazier, 391 Pa. Super. 202, 570 A.2d
1054, 1055 (1990) (citations omitted). See also Pa.R.Crim.P.
Rule 122(C) (“A motion for change of counsel by a defendant for
whom counsel has been appointed shall not be granted except
for substantial reasons.”).
Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007)
Here, we first point out that Appellant did not move for new counsel
until after his trial; thus, he cannot now claim that the court’s denial of that
motion denied him a fair trial. Additionally, Appellant has not demonstrated
that the court abused its discretion by refusing to remove Attorney Santee
before Appellant’s sentencing. Appellant’s argument in support of his motion
for new counsel focused primarily on asserting that Attorney Santee had
acted ineffectively at trial. See N.T. Sentencing at 26-29. Appellant at no
point identified what ‘irreconcilable differences’ existed between himself and
Attorney Santee at the time of Appellant’s sentencing, so as to warrant the
appointment of new counsel. See Grazier, 570 A.2d at 1055.
Appellant also does not identify what mitigating evidence Attorney
Santee failed to present at the sentencing hearing that would have resulted
in a reduced sentencing. Indeed, the court imposed the most mitigated
sentence it possibly could, as it was required to sentence Appellant to the
mandatory term of 25 years’ incarceration for his burglary offense, and the
court did not impose any additional sentence for his remaining convictions.
In light of this record, Appellant has failed to prove that the court abused its
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discretion in denying his pre-sentence motion for the appointment of new
counsel.
In Appellant’s second pro se issue, he seemingly argues that Attorney
Santee acted ineffectively at trial by not presenting certain evidence. See
Appellant’s “Application for Remand and New Counsel or Writ of Habeas
Corpus or New Trial Pursuant to Pa.R.A.P. 123,” 3/15/17 (attached to
Appellant’s “Answer to Application to Withdraw as Counsel” filed on March
15, 2017). In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our
Supreme Court reaffirmed its prior holding in Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of
ineffective assistance of counsel should be deferred until collateral review
under the PCRA. Holmes, 79 A.3d at 576. The specific circumstances
under which ineffectiveness claims may be addressed on direct appeal are
not present in the instant case. See id. at 577-78 (holding that the trial
court may address claim(s) of ineffectiveness where they are “both
meritorious and apparent from the record so that immediate consideration
and relief is warranted,” or where the appellant’s request for review of
“prolix” ineffectiveness claims is “accompanied by a knowing, voluntary, and
express waiver of PCRA review”). Accordingly, Appellant must wait until
collateral review to assert his ineffective assistance of counsel claim.
In sum, we conclude that the issues raised in Attorney Baraldi’s
Anders brief, and in Appellant’s pro se response thereto, are frivolous.
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Additionally, our review of the record reveals no other non-frivolous issues
that Appellant could raise herein. Therefore, we affirm his judgment of
sentence and grant Attorney Baraldi’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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