Com. v. Parker, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JACK PARKER
Appellant No. 2361 EDA 2015
Appeal from the Judgment of Sentence January 5, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000040-2012
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 17, 2016
Jack Parker appeals from the judgment of sentence entered in the
Court of Common Pleas of Delaware County following his conviction for
stalking,1 criminal trespass,2 and interception of communications.3 Parker’s
counsel also seeks to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Upon review, we grant counsel’s petition to withdraw and affirm Parker’s
judgment of sentence.
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2709.1.
2
18 Pa.C.S. § 3503.
3
18 Pa.C.S. § 5703.
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The trial court stated the facts of this case as follows:
On November 13, 2011, the Delaware County Park Police
responded to a report that defendant, Jack Parker, was on the
premises of the [c]ounty [p]ark system and was stalking his
estranged wife, Deborah Thomas Parker, and her alleged
boyfriend, both of whom were employed on the premises. After
being apprehended, [Parker] admitted that he was checking on
his wife to catch her cheating on him and that he had installed a
GPS device on her car. The officers arrested [Parker] and
charged him with various offenses, including [criminal trespass]
and [disorderly conduct]. Other charges were lodged against
him. With the assistance of counsel, [Parker] finally agreed to
enter an open plea of guilty to [stalking, defiant trespass,
disorderly conduct, and interception of wire communication]. At
a hearing held on November 13, 2012, [Parker] agreed to plead
guilty to these offenses.
Trial Court Opinion, 2/26/16, at 1.
On March 28, 2013, Parker appeared at sentencing with new counsel,
who made a verbal motion to withdraw the guilty plea. The trial court
denied the motion and proceeded to sentence Parker. Parker filed a motion
for reconsideration of sentence, which was denied. Parker appealed and, on
April 14, 2014, this Court reversed the trial court’s refusal to allow Parker to
withdraw his guilty plea. Commonwealth v. Parker, 1193 EDA 2013 (Pa.
Super. filed 4/14/14) (unpublished memorandum).
Upon remand, on October 20, 2014, a jury found Parker guilty of
stalking, criminal trespass, and two counts of interception of
communications. On October 31, 2014, Parker filed a motion for post-trial
relief, which was denied on November 3, 2014. On January 6, 2015, Parker
was sentenced to 16 to 36 months’ imprisonment for stalking, 6 to 12
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months’ imprisonment for defiant trespass, and 18 to 38 months’
imprisonment on each of the wiretap convictions, all to be served
consecutively. The trial court also imposed a consecutive one-year term of
probation on the wiretap convictions.
On January 13, 2015, Parker filed a pro se motion for reconsideration
of sentence. On January 14, 2015, the trial court granted Parker’s counsel’s
motion to withdraw, and on January 16, 2015, appointed new counsel for
Parker.4
On June 2, 2015, Parker’s counsel filed a request for an extension to
file post-sentence motions that was granted, and filed a post-sentence
motion on June 6, 2015. The trial court denied this motion on July 16,
2015.
On July 31, 2015, Parker filed a timely pro se notice of appeal to this
Court,5 and on October 1, 2015, Parker’s counsel filed a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
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4
Parker also filed several miscellaneous pro se motions that do not affect
the disposition of this appeal.
5
Pursuant to well-established Pennsylvania law, a defendant is not entitled
to hybrid representation. See Commonwealth v. Jette, 23 A.3d 1032,
1036 (Pa. 2011) (citing Pennsylvania’s long-standing policy that precludes
hybrid representation). Here, Parker did not request leave to proceed pro
se, nor did he request that counsel withdraw. Accordingly, it was improper
for him to file a pro se notice of appeal with the trial court. However, under
the circumstances, we decline to quash Parker’s appeal, as his notice of
appeal was timely and counsel has moved to withdraw.
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December 16, 2015, following a Grazier6 hearing, Parker agreed to allow
counsel to assist in his appeal. On January 29, 2016, counsel filed an
amended Rule 1925(b) statement and the trial court issued its Rule 1925(a)
opinion on February 26, 2016.
Parker raises two issues for our review:
1. Was trial counsel ineffective for failing to request dismissal of
a juror and for failing to preserve the issue for appeal?
2. Was the evidence sufficient to sustain [Parker’s] convictions?
Brief for Appellant, at 8.
Counsel has filed a petition to withdraw pursuant to the requirements
set forth in Anders and Santiago. Our Supreme Court in Santiago held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, 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.
After counsel has satisfied the above procedures and furnished the
defendant with a copy of counsel’s brief, the court performs an independent
examination to determine if the proceedings are wholly without merit.
Anders, 386 U.S. at 744. However, the Court must first consider the
Anders brief and petition to withdraw before reviewing the merits of the
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6
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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underlying issues. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005).
Here, counsel’s petition to withdraw satisfies the necessary
requirements and procedures. Counsel states that after a conscientious
examination of the record and controlling law, she determined the appeal to
be wholly frivolous. She further “provided a summary of the procedural
history and facts, with citations to the record.” Santiago, 978 A.2d at 361.
Counsel also filed a brief in which she re-states her conclusion that both
claims are frivolous and without merit, and thus do not support an appeal.
Lastly, she has notified Parker of the request to withdraw and provided him
with a copy of the brief and a letter explaining his right to retain new counsel
or proceed pro se as to any issues he believes might have merit.7
Accordingly, we find that counsel has satisfied the requirements of Anders
and Santiago.
Once counsel has satisfied the procedural requirements for withdrawal,
this Court performs an independent examination to determine if the appeal
is, in fact, wholly frivolous. Anders, 386 U.S. at 744; Commonwealth v.
Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Accordingly, we now turn to
the issues raised in counsel’s Anders brief.
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7
Parker has not submitted any additional filings to this Court.
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Parker’s first claim asserts ineffectiveness of trial counsel. As a
general rule, ineffective assistance of counsel claims must be raised during
collateral review. Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002). The instant appeal is a direct appeal of Parker’s judgment of
sentence, rather than a petition seeking collateral review. Moreover,
Parker’s ineffectiveness claim does not invoke an exception to this general
rule, such as an alleged breach of loyalty or complete denial of counsel. See
id. at 738 n.14 (listing exceptions to the general rule). Therefore, Parker’s
claim of ineffective assistance of counsel is not properly before this court,
and we cannot consider its merits.
Parker next contends that the Commonwealth did not present
sufficient evidence to sustain his convictions. We review the sufficiency of
evidence according to the following standard:
[The] standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. 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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
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The trier of fact, when passing upon the credibility of the witnesses
and the weight of the evidence produced, is free to believe all, part or none
of the evidence. Commonwealth v. Valette, 613 A.2d 548, 549 (Pa.
1992). In reviewing a sufficiency claim, we may not weigh the evidence and
substitute our judgment for that of the fact-finder. Commonwealth v.
Blystone, 617 A.2d 778, 780 (Pa. Super. 1992).
Here, Parker was convicted of stalking, criminal trespass, and
interception of communication. To establish stalking, the Commonwealth
must show an individual:
(1) engage[d] in a course of conduct or repeatedly commit[ed]
acts toward another person, including following the person
without proper authority, under circumstances which
demonstrate either an intent to place such other person in
reasonable fear of bodily injury or to cause substantial emotional
distress to such other person; or
(2) engage[d] in a course of conduct or repeatedly
communicate[d] to another person under circumstances which
demonstrate[d] or communicate[d] either an intent to place such
other person in reasonable fear of bodily injury or to cause
substantial emotional distress to such other person.
18 Pa.C.S. § 2709.1(a).
To establish criminal trespass—defiant trespasser, the Commonwealth
must show: “[K]nowing that he is not license[d] or privileged to do so, [a
person] enters or remains in any place as to which notice against trespass is
given by: (i) actual communication to the actor[.]” 18 Pa.C.S. §
3503(b)(1).
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To establish interception of communication, the Commonwealth must
show an individual “intentionally intercept[ed], endeavor[ed] to intercept, or
procure[d] any other person to intercept or endeavor to intercept any wire,
electronic, or oral communication.” 18 Pa.C.S. § 5703(1). “Intercept” is
defined as “[a]ural or other acquisition of the contents of any wire,
electronic, or oral communication through the use of any electronic,
mechanical or other device.” 18 Pa.C.S. § 5702.
Instantly, the Commonwealth presented sufficient evidence to
establish stalking, criminal trespass, and interception of communication, and
therefore Parker’s claim is meritless. The evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, shows that Parker
believed his estranged wife, the victim, was cheating on him with a co-
worker. Parker would call her five to ten minutes upon her arrival at work,
would stop by her work, and followed her to the drug store or grocery store,
all in the belief that she was cheating on him. Parker’s course of conduct
culminated in Parker accusing his wife to her face, threatening and calling
her insulting names, placing multiple recording and GPS-tracking devices in
her car, and sending her undergarments away for DNA testing to find
semen. This harassing behavior caused his wife to be “scared to death,” she
was “always looking over [her] shoulder” and just wanted to be “left alone.”
N.T. Trial, 10/21/14, at 11, 22. Parker’s conduct established stalking.
The evidence further demonstrated that Parker had multiple
encounters with police on county property. He first claimed to be looking for
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deer, but later told police he was actually watching his wife because he
believed her to be cheating. Detective James Harrity of the Delaware
County Park Police then communicated to Parker that he was not permitted
on county property, and he would be arrested if he was found to be present
there again. On a later date, November 13, 2011, Parker was spotted hiding
behind a radio tower on county property, near where his wife worked. When
officers approached him, he ran off, but was eventually apprehended. This
establishes criminal trespass—defiant trespass.
Lastly, the evidence shows that Parker’s wife found multiple
microcassette recording devices, on and recording, hidden in her car.
Furthermore, her mechanic discovered a GPS-tracking device. She
confronted Parker about the recording devices and he responded that he
needed to check up on her because he believed she was cheating. At trial,
the two tapes played had recorded a conversation between Parker’s wife and
her older brother. She testified that she had not given Parker permission to
record her and she had found these tapes in her house. This establishes
interception of communication.
In conclusion, counsel has satisfied all procedural requirements for
withdrawal. Furthermore, after this Court’s review of the record and the
transcript of trial, we find Parker’s claims to be meritless and affirm his
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2016
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