Com. v. McMillian, C.

J-S34016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORLIVEETHO MCMILLIAN
Appellant No. 1716 MDA 2014
Appeal from the Judgment of Sentence September 11, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001375-2012
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JULY 29, 2015
Corliveetho McMillan brings this appeal from the judgment of sentence
imposed on September 11, 2014, in the Court of Common Pleas of Luzerne
County. A jury convicted McMillan of one count of aggravated assault.1 The
trial court imposed a sentence of five to ten years’ imprisonment.
Contemporaneous with this appeal, McMillan’s counsel 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 identifies one issue, a challenge to the
sufficiency of the evidence. For the reasons that follow, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
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1
18 Pa.C.S. § 2702(a)(2).
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This case arose at State Correctional Institution (SCI) – Dallas, where
McMillan was an inmate. Corrections Officer Kevin Nahill testified that on
March 14, 2011, he was working on India Block or I-Block. At approximately
8:40 a.m., McMillan started to go upstairs to the second level of the block
for cleaning supplies. Nahill told him to wait until 9:00 a.m., when an officer
would be upstairs because the mop closet door was locked. McMillan, who
was half-way up the stairs, came back down and went into the dayroom.
Ten minutes later, Lucille Singer came on the block to pick up outgoing mail.
Nahill walked over to the mailbox with her. Nahill testified at that time he
was attacked from behind, stabbed in the neck, and punched in the face.
Nahill turned around and grabbed McMillan and both went to the ground.
Nahill testified McMillan told him he would kill him. Within seconds, other
corrections officers arrived. When Nahill got up, there was a pen laying on
the ground, and another officer told Nahill the pen had been used to stab
him. Nahill realized he was bleeding and walked directly to the infirmary.
The nurses performed first aid on Nahill’s neck and called 911 for an
ambulance. Nahill was transported to the hospital where he was diagnosed
with a puncture wound to the neck, a concussion, and a swollen left eye. He
was treated at the hospital and released. See N.T., 7/7/2014, at 31–49.
Singer testified that in March, 2011, she was employed at SCI-Dallas
as a mail room inspector, and her duties included processing and delivering
mail to inmates. She testified she was picking up mail on the block,
accompanied by a corrections officer as an escort and an inmate with a cart.
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When she went onto the block, the corrections officer remained in the
hallway and Nahill came out of the office to escort her. When she was with
Nahill, an inmate came up and grabbed Nahill. As they wrestled, she went
looking for other corrections officers. When officers arrived, Nahill and the
inmate were on the ground wrestling. Singer did not see the inmate’s face.
Singer did not see anything in the inmate’s hand, but she saw his hand in a
fist against Nahill’s neck. See N.T., 7/7/2014, at 67–71.
Corrections Officer Christopher Hashagen testified that, on March 14,
2011, he was working at SCI-Dallas on the 6 a.m. to 2 p.m. shift. He was
assigned to I-Block that day. At approximately 8:40 a.m., he was behind
the desk in front of the office, when he saw a flash out of the corner of his
eye. He saw McMillan coming out of the dayroom, and go up to Nahill and
strike him on the side of the neck. Hashagen did not see a pen at the time,
but he saw McMillan’s hand hit the side of Nahill’s neck, and saw McMillan
punch Nahill. He saw a pen laying on the floor after the incident. He used
the emergency phone and then ran to help another corrections officer,
Officer Maute, who was Singer’s escort. See N.T., 7/7/2014, at 83–91.
Joyce Ann Wilson, a registered nurse, who was working in the SCI-
Dallas infirmary on March 14, 2011, testified she was alerted to an
altercation and she watched Nahill walk down the hallway to the infirmary.
Nahill told her he had been stabbed in the neck. She noticed a puncture
wound to the right side of his neck. She controlled the bleeding and called
911 because she could not determine the depth of the wound. She stated
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she called 911 before she started to evaluate Nahill. She testified “with the
location of the puncture wound on the neck, there’s the carotid artery and
the jugular vein … airway, trachea, the esophagus, and his spinal cord.”2
See N.T., 7/7/2014, at 140–144, 150. Her written report regarding Nahill
noted the puncture wound to the right side of the neck — approximately ½
inch in length with questionable depth; superficial laceration to the posterior
of the neck, measuring 4½ inches; right thumb laceration of 1 inch in
length; left eye was red; complaint of a headache, with his neck being stiff;
swelling around the left side of his head, and complaint of blurred vison to
the left eye. See N.T., 7/7/2014, at 145–149. The bridge of his nose was
edematous; a neurovascular check was within normal limits, and he had
scratches to the left side of his back. Id. at 149.
McMillan testified in his own defense. McMillan testified that when he
was transferred to I-Block for medical purposes after receiving a pacemaker,
Nahill harassed him and McMillan started writing complaints. McMillan
stated Nahill was intimidating him. On March 14, 2011, at 8:30 a.m.,
McMillan asked to get cleaning supplies, and Nahill told him he had to wait
until 9:00 am. He went to the dayroom for 25 minutes, and then
approached Hashagen to ask to be moved off I-Block immediately.
Hashagen made a phone call and then told McMillan that the unit manager
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2
N.T., 7/7/2014, at 143.
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would not speak to him. McMillan then got a request slip that would go to
the unit manager and started writing a request to be moved off the block.
Nahill was upstairs looking down. He saw the exchange and told McMillan
the only way off the block was lockup. Nahill then came down the stairwell,
and while McMillan was writing the request, Nahill hit him on the arm, and
spun him around. McMillan stated his pen caught Nahill in the neck, and
then Nahill grabbed him and they fell to the ground. McMillan testified it
was not his intent to cause injury to Nahill. See N.T., 7/7/2014, at 168–
186.
Two inmates testified for the defense. Richard Vanholt testified that
he was an inmate at SCI-Dallas in March, 2011, and Lieutenant Moser, who
is in charge of the Restricted Housing Unit, told him and his cellmate that if
he knew anything about the incident it would be best for them to keep it to
themselves. Jamel Brockington testified similarly. See N.T., 7/7/2014, at
214–218, 221–223.
McMillan’s sister, Doris Fayedene McMillan, and McMillan’s mother,
Doris McMillan, also testified for McMillan. McMillan’s sister testified that
McMillan told her he was having trouble with some guards, in particular,
Nahill. McMillan’s sister testified McMillan had her call the Human Rights
Coalition. On many occasions, McMillan told her Nahill was harassing him.
She said she received a phone call from an inmate’s mother telling her
McMillan was being beaten up, and she should go to the prison to find out
what was happening. McMillan’s mother testified that when McMillan called
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her he would tell her about Nahill and harassment, and he told her was in
fear of his life. See N.T., 7/7/2014, at 232–239, 242–246.
At the close of the trial,3 the jury found McMillan guilty of one count of
aggravated assault. After sentencing, this appeal timely followed.4
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw. 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 Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349, 361 (Pa. 2009). 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.
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3
The Commonwealth also presented the testimony of Eric Noss, a
corrections officer, and Captain John Martin, a lieutenant in the security
office in 2011, in its case in chief. The defense also called Christopher
Wilson, the trooper assigned to investigate the case. The Commonwealth
re-called Wilson as a rebuttal witness.
4
In response to the trial court’s order to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal, counsel advised the court he would be
filing an Anders brief. See Pa.R.A.P. 1925(c)(4).
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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
the appellant. Attending the brief must be a letter that advises
the appellant of his or her 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, 2007 PA Super
199, 928 A.2d 349, 353 (Pa. Super. 2007); see
Commonwealth v. Daniels, 2010 PA Super 112, 999 A.2d 590,
594 (Pa. Super. 2010); Commonwealth v. Millisock, 2005 PA
Super 147, 873 A.2d 748, 751-52 (Pa. Super. 2005).
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014).
Here, our review of the record reveals counsel has complied with the
requirements for withdrawal. Specifically, counsel filed a petition for leave
to withdraw, in which she states her belief that the appeal is frivolous, and
filed an Anders brief pursuant to the dictates of Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel has provided a copy of
the letter she mailed to McMillan, advising him of his right to retain new
counsel or proceed pro se, and the letter to McMillan reflects counsel’s
enclosure of a copy of the Anders brief. Moreover, our review of the record
reveals no response from McMillan. Accordingly, we now must conduct an
independent review of the record to determine whether the issue identified
in this appeal is, as counsel states, wholly frivolous.
As stated above, the issue identified by the Anders brief is a
sufficiency challenge. A claim challenging the sufficiency of the evidence is a
question of law. Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). In
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Widmer, our Supreme Court set forth the sufficiency of the evidence
standard:
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167(1993). Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is
insufficient as a matter of law. Commonwealth v. Santana,
460 Pa. 482, 333 A.2d 876 (1975). When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630(1991).
Id. at 751. Furthermore,
[w]e may not weigh the evidence or substitute our judgment for
that of the fact-finder. Additionally, the evidence at trial need
not preclude every possibility of innocence, and the fact-finder is
free to resolve any doubts regarding a defendant’s guilt unless
the evidence is so weak and inconclusive that as a matter of law
no facts supporting a finding of guilt may be drawn. The fact-
finder, when evaluating the credibility and weight of the
evidence, is free to believe all, part, or none of the evidence. For
purposes of our review under these principles, we must review
the entire record and consider all of the evidence introduced.
Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa. Super. 2006)
(citations omitted), appeal denied, 917 A.2d 846 (Pa. 2007).
McMillan was convicted of aggravated assault, which is defined as
follows:
A person is guilty of aggravated assault if he … attempts to
cause or intentionally, knowingly or recklessly causes serious
bodily injury to any of the officers, agents, employees or other
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persons enumerated in subsection (c) or to an employee of an
agency, company or other entity engaged in public
transportation, while in the performance of duty.
18 Pa.C.S. § 2702(a)(2). “Serious bodily injury” is defined as “[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. Section 2702(c) specifically
identifies an “officer or employee of a correctional institution, county jail or
prison” as among the “officers, agents, employees or other persons”
referenced in section 2702(a). 18 Pa.C.S. § 2702(c)(9).
The Commonwealth, in sustaining an aggravated assault conviction,
“need only show the defendant attempted to cause serious bodily injury to
another, not that serious bodily injury actually occurred.” Commonwealth
v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001) (footnote and citations
omitted), appeal denied, 803 A.2d 733 (2002). An “attempt” exists when
“the accused intentionally acts in a manner which constitutes a substantial
or significant step toward perpetuating serious bodily injury upon another.”
Id. (quotations and citation omitted). “The Commonwealth can establish
specific intent from the circumstances surrounding the incident.” Id.(citation omitted).
The evidence presented by the Commonwealth at trial demonstrated
that McMillan’s actions satisfied the requisite elements of aggravated
assault. The Commonwealth presented evidence that McMillan attacked
Nahill from behind, and that he struck him in the side of the neck and
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punched him. In the struggle that ensued, both McMillan and Nahill went to
the ground, and Nahill testified McMillan threatened his life. After Nahill got
up, a pen was found lying on the ground. At the SCI-Dallas infirmary, Nahill
was found to have a puncture wound to the right side of his neck. The nurse
who treated Nahill activated 911. She explained it was an emergency
situation because she could not determine the depth of the wound, and due
to the location of the puncture wound and the carotid artery, jugular vein,
airway, trachea, esophagus, and spinal column.
McMillan offered a different version of the events, and claimed that he
did not intend to cause harm to Nahill. He presented witnesses who testified
that McMillan told them he was being harassed by the corrections officers.
He also presented two fellow inmates who testified they were told to keep
any information they had about McMillan and Nahill to themselves. The jury
was free to reject this evidence. See Stevenson, supra.Given our standard of review that requires this Court to view the
evidence in the light most favorable to the Commonwealth as verdict winner,
we conclude the Commonwealth’s evidence and the testimony of its
witnesses, which was believed by the jury, is sufficient to sustain the
conviction for aggravated assault. See Widmer, supra; 18 Pa.C.S.
2702(a)(2). As such, a challenge to the sufficiency of the evidence would
ultimately be frivolous.
Furthermore, we detect no other issues that would sustain an appeal
in this case. See Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.
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Super. 2015) (“[T]his Court must conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” (citation and footnote omitted)). Therefore, the appeal is
wholly frivolous. Accordingly, we affirm McMillan’s judgment of sentence
and grant counsel’s petition for leave to withdraw as counsel.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
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