Com. v. Gulden, P.

J-S28021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK SEAN GULDEN :
:
Appellant : No. 104 MDA 2022
Appeal from the Judgment of Sentence Entered December 15, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001047-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 3, 2023
Patrick Sean Gulden appeals from the judgment of sentence entered
following his conviction for two counts each of terroristic threats and
harassment.1 Gulden’s counsel filed a petition to withdraw as counsel and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967). We grant
counsel’s petition to withdraw and affirm the judgment of sentence.
Gulden was arrested in June 2021, following threats he made to his
mother, Betty Ann Halderman, and her fiancée, James Williams. At trial,
Halderman, Williams, and Gulden testified.
Halderman testified that she lived with Williams.2 N.T., Oct. 27, 2021,
at 14. Gulden resided with her and Williams “off and on.” Id. at 15. One
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1 18 Pa.C.S.A. §§ 2706(a)(1) and 2709(a)(3), respectively.
2Halderman is 73 years old and has been in a relationship with Williams for
33 years. N.T., Oct. 27, 2021,at 14-15.
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evening in June 2021, Gulden went out and did not return home that night.
Id. When he did return, “he wasn’t right.” Id. She testified that Gulden was
talking about things that were not true, such as “saying [Halderman] wasn’t
his mother.” Id. Gulden said he was a “one percenter” and he was “jumping
up and down, walking back and forth, screaming.” Id. at 15-16. When asked
what Gulden meant by “one percenter,” Halderman stated that “[h]e got a
motorcycle and thinks he’s in a gang, and he’s not.” Id. at 16. Halderman
testified that Gulden said that “somebody has to die tonight because youse
[sic] are trying to kill me.” Id. When she said they were not trying to kill him,
he responded, “Well, somebody’s setting me up with the . . . federal
government.” Id. at 16-17. Halderman stated that Gulden was not talking
normally, was jumping up and down, and “walking around with his hands
(indicating) and around the chair saying you have to die, one of you have [sic]
to die because youse [sic] are trying to get me killed.” Id. Gulden further
stated that “[b]y nine o’clock, if I don’t have my keys, one of you is gonna
die.” Id. She testified that she was scared. Id.
Halderman testified that after three or four hours she left, saying she
was going out for a cigarette, and Gulden locked the door so she could not
return. Id. at 18, 25. She said Williams was still in the house and she was
concerned Gulden would do something to Williams. Id. When she returned,
Williams was outside and Gulden had locked the doors. Id. at 19. After Gulden
found the keys, he apologized to Williams but continued to threaten
Halderman. Id. at 20.
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Williams testified that Gulden came home and “was flipping out,” saying
“[he was] a one percenter, somebody’s got to die, it’s either you or Betty
tonight.” Id. at 35-36. He stated Gulden was circling Williams “like he was
gonna do something.” Id. at 35. Williams testified it went on like that “for a
good while,” until Halderman left to get cigarettes. Id. at 36. He stated he
was scared “because when somebody is circling you like that, you don’t know
what they’re gonna do,” and Gulden’s pupils were small, and he was
unpredictable. Id. Williams testified that after Halderman left, he went
outside, and Gulden “was still carrying on, swinging his hands, and saying
stuff.” Id. at 37.3
Gulden testified in his own defense. He testified that he “just
nonchalantly came in, said my keys are missing, I’d like to know where my
keys are.” Id. at 55. Nothing else happened on the night in question. Id. He
testified that “right after [he] asked them [where his keys were,] [his] keys
all of a sudden appeared,” and he “kn[e]w they had something to do with
them going missing.” Id. at 56. Gulden testified that Halderman’s and
Williams’ testimony was “all made up,” and they were “just trying to get [him]
jammed up.” Id. at 57.
The jury found Gulden guilty of the above-referenced offenses. At the
sentencing hearing, Gulden informed the court he wanted to proceed pro se.
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3 Police Officer Travis Bowman also testified. N.T., Oct. 27, 2021, at 48-51.
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The court held a Grazier4 hearing, after which it found Gulden knowingly,
voluntarily, and intelligently waived his right to counsel, but also appointed
trial counsel as stand-by counsel. N.T., Dec. 15, 2021, at 15. The court
sentenced Gulden to concurrent terms of one to five years’ incarceration for
each terroristic threat conviction and concurrent terms of 30 to 90 days’
incarceration for the harassment convictions. Gulden filed a pro se post-
sentence motion, which the trial court denied. The court again advised Gulden
of his right to counsel, and the court conducted another colloquy, after which
it found Gulden knowingly, voluntarily, and intelligently waived his right to
counsel. Order, Jan. 5, 2022. The court also again appointed trial counsel as
stand-by counsel. Gulden filed a timely notice of appeal.
While the appeal was pending, Gulden filed in this court an application
for the appointment of counsel. We remanded to the trial court to conduct a
hearing to determine whether Gulden wished to proceed with appointed
counsel from the public defender’s office or pro se. Order, Mar. 9, 2022. The
trial court responded that Gulden wished to have counsel, and that it had
appointed trial counsel, who had also acted as stand by counsel, as counsel
for the appeal. Counsel filed an Anders brief in this court and a petition to
withdraw as counsel. Gulden filed a pro se response.
Counsel lists one issue in the Anders brief: “Did the Commonwealth
present sufficient evidence to support the convictions for terroristic threats?”
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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Anders Br. at 4. Gulden’s pro se response raises a claim of ineffective
assistance of counsel and a claim that the county and public defender office
were conspiring against him. Motion to Raise Any Points that I Deem Worthy
of the Court’s Attention, filed July 20, 2022 (“Gulden’s Response”).
Because counsel has filed an Anders brief, we must first address
whether counsel has satisfied the procedural requirements under Anders.
See Commonwealth v. Cox, 231 A.3d 1011, 1014 (Pa.Super. 2020). An
Anders brief is filed “when counsel believes an appeal is frivolous and wishes
to withdraw from representation[.]” Id. In such a case, counsel must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel
has determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the
appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise
him of his right to retain new counsel, proceed pro se, or
raise any additional points he deems worthy of this Court’s
attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006)
(citation omitted).
Additionally, an Anders 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
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record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
If counsel has satisfied these requirements, we then must conduct “a
full examination of all the proceedings[] to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.Super.
2018) (en banc) (quoting Anders, 386 U.S. at 744). Should we determine
that the appeal is wholly frivolous, we may grant counsel’s petition to
withdraw. However, “if [this Court] finds any of the legal points arguable on
their merits (and therefore not frivolous) [we] must, prior to decision, afford
the indigent the assistance of counsel to argue the appeal.” Id. (quoting
Anders, 386 U.S. at 744).
Counsel completed the procedural requirements for withdrawal under
Anders. He filed a petition with this Court to withdraw, stating that after his
examination of the record, he has determined the appeal would be frivolous.
He also filed a brief referring to any issues that might arguably support the
appeal, and he furnished a copy of the brief to Gulden and advised him of his
right to retain new counsel, proceed pro se, or raise any additional points he
deems worthy of this Court’s attention. See Application to Withdraw as
Counsel, filed June 29, 2022; Anders Br. at App. D, Letter from Kent D.
Watkins to Patrick S. Gulden, dated June 29, 2022. Further, counsel’s Anders
brief summarizes the procedural history and facts, with citations to the record;
refers to anything in the record that counsel believes arguably supports the
appeal; sets forth counsel’s conclusion that the appeal is frivolous; and
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explains his reasons for concluding that the appeal is frivolous, including
citation to relevant law.
We will now address the issue raised in counsel’s Anders brief – whether
the evidence was sufficient to support the terroristic threat convictions. A
challenge to the sufficiency of the evidence requires us to determine whether
the evidence supports every element of the crime charged beyond a
reasonable doubt. Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa.Super.
2015). As sufficiency of the evidence is a question of law, our standard of
review is de novo. Id. Our scope of review is limited to the record evidence,
which we view in the light most favorable to the Commonwealth, as verdict-
winner. Id.“A person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to . . . commit any crime
of violence with intent to terrorize another[.]” 18 Pa.C.S.A. 2706(a)(1). “[T]he
Commonwealth must prove that 1) the defendant made a threat to commit a
crime of violence, and 2) the threat was communicated with the intent to
terrorize another or with reckless disregard for the risk of causing terror.”
Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super. 2003) (quoting
Commonwealth v. Tizer, 684 A.2d 597, 600 (Pa.Super. 1996)) (alteration
in Reynolds). “Neither the ability to carry out the threat, nor a belief by the
person threatened that the threat will be carried out, is an element of the
offense.” Id. (quoting In re J.H., 797 A.2d 260, 262 (Pa.Super. 2002)).
“[T]he harm sought to be prevented by the statute is the psychological
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distress that follows from an invasion of another’s sense of personal security.”
Id. (citation omitted). “Section 2706 is not meant to penalize mere spur-of-
the-moment threats which result from anger.” Id. (quotation marks and
citation omitted). Therefore, the court “must consider the totality of
circumstances to determine whether the threat was a result of a heated verbal
exchange or confrontation.” Id. (citation omitted).
Here, the victims testified Gulden threatened them for numerous hours,
repeatedly stating that someone was going to die. While threatening them, he
circled them and acted erratically. Both victims testified that they were scared
by Gulden’s threats and behavior. While Gulden offered an exculpatory version
of events, the factfinder was capable of determining which version to believe.
We find no reasonable basis on which to challenge the sufficiency of the
evidence. See id.; Commonwealth v. Fenton, 750 A.2d 863, 865-66
(Pa.Super. 2000) (sufficient evidence for terroristic threats conviction where
defendant festered anger and showed a desire to terrify by stating he planned
to kill and had the means to do it and telling the victim to lock his door).
We next address the issues raised in Gulden’s response. He raises claims
of ineffective assistance of counsel and claims the county and public defender
office were conspiring against him. He claims “[t]here is a connection between
the couple I was staying with working with the county [and] public defender .
. . to target me purposefully with intent.” Gulden’s Response at 2.
We cannot review his ineffectiveness claims on direct appeal.
Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (providing that,
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with limited exceptions, a court cannot review ineffective assistance of counsel
claims on direct appeal). Such claims must be raised in a petition filed
pursuant to the Post Conviction Relief Act. See 42 Pa.C.S.A. §§ 9541-9546.
Id.5
We have reviewed the record and have found no non-frivolous claims
for appeal. We therefore grant the petition to withdraw as counsel and affirm
the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2023
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5 To the extent Gulden also attempts to raise the claims raised in his pro se
1925(b) statement, that is, that his convictions or sentence violated the
double jeopardy clause of the United States Constitution, and his sentence
was harsh and extreme, we conclude these claims lack a reasonable basis and
are therefore frivolous. See Trial Court Opinion, filed Feb. 9, 2022, at 3.
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