Com. v. Pittenger, R., Jr.

J-S18044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY D. PITTENGER, JR. :
:
Appellant : No. 1566 MDA 2018
Appeal from the Judgment of Sentence Entered June 27, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001531-2016
BEFORE: BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 28, 2019
Appellant, Ricky D. Pittenger, Jr., appeals, nunc pro tunc, from the
judgment of sentence entered in the Court of Common Pleas of Lycoming
County after he pleaded no contest to indecent assault, corruption of minors,
and indecent exposure. Contemporaneous with this appeal, appointed counsel
has filed an Anders brief along with a motion to withdraw as counsel. After
careful review of the submissions by the parties,1 relevant law, and the
certified record, we affirm and grant counsel’s petition to withdraw.
The trial court aptly sets forth the pertinent facts and procedural history
of the case, as follows:
By way of background, Appellant Ricky Pittenger, Jr. was charged
with indecent assault of a complainant less than 13 years of age,
corruption of minors, indecent exposure, and rape of a child as a
____________________________________________
1On February 12, 2019, the Commonwealth filed a letter advising that it would
not submit a brief in this case.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S18044-19
result of engaging in sexual conduct with a child. Appellant’s
crimes came to light after his wife walked into a bedroom and
observed the eleven-year-old child lying at the edge of the bed
with her legs spread and up and Appellant standing between her
legs. Although both were still clothed during this particular
incident, the sexual nature of the pose was readily apparent to
Appellant’s wife.
Appellant’s wife asked the child if Appellant had touched her, the
child said “yes,” and Appellant’s wife called 9-1-1. The child was
subsequently interviewed at the hospital by a SANE nurse and at
the Children’s Advocacy Center (CAC). During these interviews,
the child revealed that Appellant had been touching her
inappropriately for years, and also that he penetrated her vagina
with his fingers and his penis. See Transcript of Tender Years
Hearing, 2/16/17, at 6-15, 25-59.
On March 9, 2017, Appellant pled no contest to indecent assault
of complainant less than 13 years of age, a felony of the third
degree, corruption of minors, a felony of the third degree, and
indecent exposure, a misdemeanor of the first degree, in
exchange for dismissal of the rape charge and an aggregate
minimum sentence of 27 months’ incarceration.
On June 27, 2017, the court sentenced Appellant to an aggregate
term of 27 months to 19 years’ incarceration in a state correctional
institution, which consisted of 1 to 7 years for indecent assault, 1
to 7 years for corruption of minors, and 3 months to 5 years for
indecent exposure.
Although Appellant wished to appeal, his attorney failed to file an
appeal on his behalf. When Appellant realized his attorney had
not filed his requested appeal, Appellant filed a Post Conviction
Relief Act (PCRA) petition and his appeal rights were reinstated
nunc pro tunc.
[The court appointed counsel and directed her to file a notice of
appeal within 30 days, which she did. Counsel thereafter complied
with the trial court’s directive to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).]
Appellant asserts two issues on appeal:
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1. Whether [Appellant’s] plea was unlawfully induced
because the Commonwealth did not have a strong
case against him as the victim was not going to
testify and [the Commonwealth] acknowledged
such at sentencing.
2. Whether [Appellant’s] fifth and fourteen[th]
amendment rights were violated based on the lack
of evidence.
Trial Court Opinion, 1/3/19, at 1-2. Counsel, however, has filed an application
to withdraw and a brief in this Court pursuant to Anders v. California, 386
U.S. 738 (1967).
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,
978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court may then evaluate the record to confirm that the
appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244, 1246
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(Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d 266(Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495 Pa.
467, 434 A.2d 1185 (1981)] requires that counsel’s brief provide
an argument of any sort, let alone the type of argument that
counsel develops in a merits brief. To repeat, what the brief
must provide under Anders are references to anything in the
record that might arguably support the appeal.
***
Under Anders, the right to counsel is vindicated by counsel’s
examination and assessment of the record and counsel’s
references to anything in the record that arguably supports the
appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court 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. 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. at 178-79, 978 A.2d at 361.
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Here, counsel has complied with the technical requirements of
Anders/McClendon.2 Accordingly, we proceed. In the Anders/McClendon
brief, counsel presents Appellant’s question of whether Appellant “was
unlawfully induced” to enter a plea of no contest, as the Commonwealth did
not have a strong case against him in light of its acknowledgement during
sentencing that the child victim would not testify if the case proceeded to trial.
Specifically, the Anders brief points to the Commonwealth’s argument during
Appellant’s sentencing hearing as the basis for Appellant’s claim:
COMMONWEALTH: I understand this is a no contest plea, but
the Commonwealth is troubled by the fact that there is no
acceptance of responsibility even up until this point on the part of
the defendant. The victim gave an incredibly detailed description
of what had happened at the CAC interview, telling that this
wasn’t, in fact, the only time it happened, it was over a period of
time despite what the persons from the Sexual Offenders
Assessment Board found.
Her mother had walked in on this. I think that if this had gone to
trial without such strong evidence we may have been in a position
to – that it might not have been such a strong case. But the fact
that her mother walked in on it and saw it, and then coupled with
the child’s description, we find it a little, I guess troubling and odd
that the defendant continues to deny it.
However, there was a plea agreement of the fact that the child
was going to be unable to testify at the proceedings despite
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2 Counsel provided Appellant with a letter advising of his rights pursuant to
Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005) (counsel
seeking to withdraw on direct appeal must provide to client a copy of the
Anders brief with a letter advising 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). The letter was filed with this
Court separately from the withdrawal petition and the Anders brief.
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getting the ruling that we did from the court. Emotionally she
wasn’t doing very well, and I don’t think anybody can blame her
at this point. So we would ask the Court to go along with the plea
agreement, and as far as the maximum we would ask for the
highest maximum possible. . . .”
Sentencing Transcript, 6/27/17, at 10.
A nolo contendere or no contest plea is treated the same as a guilty plea
“in term of its effect upon a case.” Commonwealth v. Leidig, 850 A.2d 743,
745 (Pa.Super. 2004), aff'd, 598 Pa. 211, 956 A.2d 399 (2008). “Upon entry
of a guilty plea, a defendant waives all claims and defenses other than those
sounding in the jurisdiction of the court, the validity of the plea, and what has
been termed the ‘legality’ of the sentence imposed.” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).
Here, because Appellant did not challenge the voluntariness of his plea
in the trial court prior to filing his notice of appeal, any such claim is waived
on direct review. See Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super. 2008) (“[A] request to withdraw a guilty plea on the grounds that
it was involuntary is one of the claims that must be raised by motion in the
trial court in order to be reviewed on direct appeal.”). Pursuing a waived
claim, moreover, is frivolous. Commonwealth v. Kalichak, 943 A.2d 285,
291 (Pa.Super. 2008). In addition, to the extent Appellant’s claim is
understood to assert that plea counsel unlawfully induced his plea, the claim
is properly pursued through the PCRA after Appellant's judgment of sentence
becomes final. See 42 Pa.C.S. § 9543(a)(2)(iii).
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The second question presented in the Anders brief assails Appellant’s
judgment of sentence as being unsupported by sufficient evidence of guilt.
Among the array of constitutional and appellate rights waived when entering
a guilty plea, however, is a direct challenge to the sufficiency of the evidence,
which implicates neither the jurisdiction of the court nor the voluntariness of
the plea. See generally Commonwealth v. Lincoln, 72 A.3d 606, 610
(Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014). Appellant
may not prevail upon this claim.
As the certified record amply demonstrates there are no meritorious
issues on direct appeal, we affirm the judgment of sentence. Additionally,
we grant counsel’s motion to withdraw from representation.
Judgment of sentence affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2019
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