Com. v. Conley, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRYAN WILLIAM CONLEY :
:
Appellant : No. 935 WDA 2021
Appeal from the Judgment of Sentence Entered July 15, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002061-2018
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 8, 2022
Appellant Bryan William Conley appeals from the judgment of sentence
imposed following the revocation of his county intermediate punishment and
probation. Appellant’s counsel (Counsel) has filed a petition to withdraw and
an Anders/Santiago1 brief. For the reasons stated herein, we deny Counsel’s
petition to withdraw and direct Counsel to submit an amended
Anders/Santiago brief or an advocate’s brief on Appellant’s behalf.
The underlying facts of this matter are well known to the parties. See
Trial Ct. Op., 6/12/19, at 5-10. Briefly, Appellant and Andrea Delsandro (the
victim) separated in May of 2018 after dating for approximately five years. At
the time of their separation, they had a three-year-old child and the victim
was pregnant with their second child. On June 25, 2018, the victim obtained
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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a Protection From Abuse (PFA) order against Appellant. The victim gave birth
at St. Vincent Hospital on June 27, 2018. Although Appellant had been served
with the PFA order and hospital staff denied him entry, Appellant circumvented
hospital security to reach the victim. During the encounter at the hospital,
Appellant threatened to kill the victim, their newborn child, and the victim’s
parents. The victim called a nurse for help, and Appellant left the victim’s
hospital room. The nurse alerted hospital security, and the hospital was
placed on lockdown.
Appellant was subsequently charged with two counts each of terroristic
threats, disorderly conduct, and harassment, and one count of simple assault.2
Following a non-jury trial on November 28, 2018, Appellant was convicted of
two counts of terroristic threats (one graded as a felony of the third degree
and the other as a misdemeanor of the first degree) and one count each of
simple assault, disorderly conduct, and harassment. The trial court acquitted
Appellant of one count each of disorderly conduct and harassment.
The trial court held a sentencing hearing on February 13, 2019. At the
hearing, Appellant argued that his misdemeanor terroristic threats and simple
assault convictions should merge with the felony terroristic threats conviction.
However, the trial court disagreed and sentenced Appellant on all three
counts. The trial court sentenced Appellant to an aggregate term of four years
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2 18 Pa.C.S. §§ 2706(a)(1), 5503(a)(1), 2709(a)(1), and 2701(a)(3),
respectively.
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of county restrictive intermediate punishment followed by three years of
probation.3
On direct appeal, Appellant challenged the sufficiency of the evidence
supporting his convictions for terroristic threats, simple assault, and disorderly
conduct. Commonwealth v. B. Conley, 496 WDA 2019, 2020 WL 3989174,
at *4 (Pa. Super. filed July 15, 2020) (unpublished mem.). Ultimately, a panel
of this Court concluded that the evidence was sufficient to sustain Appellant’s
convictions. Id. at *4-6. However, the Court did not address whether any of
Appellant’s convictions should have merged for sentencing purposes.
While he was serving his sentence of county restrictive intermediate
punishment, Appellant was detained after admitting to his probation officer
that he had been using methamphetamine. On July 15, 2021, the trial court
held a violation of probation4 (VOP) hearing. Appellant conceded that he
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3 Specifically, for count one, the felony terroristic threats conviction, the trial
court sentenced Appellant to four years of county restrictive intermediate
punishment, which included a term of 205 days’ incarceration followed by
three months’ electronic monitoring, and then followed by three months’
intensive supervision. For count two, the misdemeanor terroristic threats
conviction, the trial court sentenced Appellant to a consecutive term of two
years’ probation. For count three, simple assault, the trial court sentenced
Appellant to one year of probation concurrent to count two. For count four,
disorderly conduct, the trial court imposed a consecutive term of nine months’
probation. Lastly, for count six, harassment, the trial court imposed a
consecutive term of three months’ probation. See Sentencing Order, 2/13/19,
at 1 (unpaginated). The trial court also gave Appellant credit for ninety-nine
days’ time served. See id. at 2 (unpaginated).
4During the revocation portions of the proceedings on July 15, 2021, the VOP
court and parties referred to Appellant’s probation, even though at the time
(Footnote Continued Next Page)
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violated the conditions of his county restrictive intermediate punishment
because he had used methamphetamine and the trial court revoked his county
restrictive intermediate punishment and his probation. See N.T. VOP Hr’g,
7/15/21, at 4. Both Appellant and his probation officer, Ashley Clark, testified
at the VOP hearing. Id. at 6-10, 13-16. Officer Clark stated that Appellant
had accrued twenty-five misconducts while incarcerated. Id. at 6-7. She also
stated that she had received letters from Appellant containing sexual
messages. Id. at 7-8; see also id. at 12-13. Appellant admitted that he
sent those letters to Officer Clark, but claimed that he had “acted out of
character to be noticed[,]” because the prison authorities had mistreated him,
and he apologized to Officer Clark during the hearing. Id. at 8-11, 14. At the
conclusion of the hearing, the VOP court resentenced Appellant to an
aggregate term of three-and-a-half to seven years’ incarceration followed by
one year of probation.5
Appellant filed a timely post-sentence motion requesting reconsideration
and modification of his sentence, which the trial court denied. Appellant then
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Appellant was serving his term of county restrictive intermediate punishment.
Compare N.T. VOP Hr’g, 7/15/21, at 2-4 with id. at 16 and Sentencing
Order, 2/13/19, at 1 (unpaginated).
5 Specifically, the VOP imposed consecutive terms of incarceration as follows:
two to four years for felony terroristic threats, one to two years for the
misdemeanor terroristic threats, and six months to one year for simple
assault. The VOP court also reimposed consecutive terms of probation as
follows: nine months for disorderly conduct and three months for harassment.
See Sentencing Order, 7/15/21, at 1 (unpaginated).
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filed a timely appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
On appeal, Counsel has filed an Anders/Santiago brief identifying the
following issue:
Was the sentence in this case manifestly excessive and clearly
unreasonable, and not individualized as required by law, when
[Appellant] argues that he was only revoked and resentenced
based on technical violations, so his sentence was
disproportionate to his actions.
Anders/Santiago Brief at 1 (formatting altered).
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
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(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.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “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) (citation and footnote omitted).
Here, Counsel has complied with the procedural requirements for
seeking withdrawal by filing a petition to withdraw, sending Appellant a letter
explaining his appellate rights, and supplying Appellant with a copy of the
Anders/Santiago brief.6 See Goodwin, 928 A.2d at 290. Moreover,
Counsel’s Anders/Santiago brief complies with the requirements of
Santiago. Specifically, Counsel includes a summary of the relevant factual
and procedural history, refers to portions of the record that could arguably
support Appellant’s claim, and sets forth the conclusion that the appeal is
frivolous. See Santiago, 978 A.2d at 361. Accordingly, we conclude that
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6 Appellant did not file a response to Counsel’s petition to withdraw.
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Counsel has met the technical requirements of Anders and Santiago, and
we will proceed to address the issue raised in Counsel’s Anders/Santiago
brief.
Discretionary Aspects of the Sentence
In the Anders/Santiago brief, Counsel identifies Appellant’s challenge
to the discretionary aspects of his sentence. Anders/Santiago Brief at 6.
Specifically, Appellant asserts that the VOP court imposed an excessive
sentence because Appellant only committed a technical violation and has
mental health needs. Id. Counsel notes that because the sentencing court
specifically stated the information it relied on in fashioning its sentence, which
included the misconducts that Appellant incurred while he was incarcerated,
his admission to using methamphetamine, and the inappropriate letters
Appellant sent to his probation officer, Appellant’s sentence is “supported by
the information presented at the time of the revocation and sentencing
hearing . . . .” Id. at 7-8. Therefore, Counsel concludes that Appellant’s
challenge to the discretionary aspects of his sentence is frivolous. Id. at 8.
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
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that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “A substantial question exists only
when the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Id. (citation omitted).
Instantly, Appellant preserved his sentencing issue in a post-sentence
motion, filed a timely appeal and Pa.R.A.P. 1925(b) statement, and included
a Pa.R.A.P. 2119(f) statement in the amended Anders/Santiago brief. See
id. Appellant has also presented a substantial question for our review. See
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)
(noting that “a claim that a particular probation revocation sentence is
excessive in light of its underlying technical violations” presents a substantial
question for our review). Therefore, we will address the merits of Appellant’s
claim.
When considering an appeal from a sentence imposed following the
revocation of probation, “[o]ur review is limited to determining the validity of
the probation revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the time of the
initial sentencing.” Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa.
Super. 2007) (citations omitted); see also 42 Pa.C.S. § 9771(b).
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Our well-settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c)
and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
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42 Pa.C.S. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some
citations omitted).
When a court revokes a defendant’s probation and imposes a new
sentence, “the sentencing alternatives available to the court shall be the same
as were available at the time of initial sentencing, due consideration being
given to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b).
In revocation proceedings, courts are not required to consider the sentencing
guidelines.7 See Commonwealth v. Derry, 150 A.3d 987, 993 (Pa. Super.
2016). However, the VOP court must impose “a sentence that is consistent
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant[,]” and also consider, among other things, “whether
the sentence imposed is essential to vindicate the authority of the court, and
must give due consideration to the time spent serving the order of probation.”
Id. at 994 (discussing 42 Pa.C.S. §§ 9721(b), 9771(c)).
VOP courts may not impose a sentence of total confinement unless “(1)
the defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
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7We note that the Resentencing Guidelines apply when probation is revoked
based on an offense committed on or after January 1, 2020. See 204 Pa.
Code § 307.2(b); see also 42 Pa.C.S. § 2154.4. Here, because Appellant
committed the underlying offense in 2018, the trial court was not required to
consider the Resentencing Guidelines when imposing Appellant’s VOP
sentence.
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not imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court.” Id. at 994 (quoting 42 Pa.C.S. § 9771(c)) (formatting altered).
Criminal Rule of Procedure 702 requires that a sentencing court have a
pre-sentence investigation report (PSI) or place on the records the reasons
for dispensing with the PSI whenever a defendant can be sentenced to a
sentence of incarceration of one year or more. Pa.R.Crim.P. 702(A)(1)-(2)(a).
This requirement extends to probation revocation hearings. See
Commonwealth v. Kelly, 33 A.3d 638, 641 (Pa. Super. 2011). “In the
absence of a PSI, the court must conduct a pre-sentence inquiry such that it
is apprised of the particular circumstances of the offense, not limited to those
of record, as well as defendant’s history and background.” Id. at 642 (citation
omitted and formatting altered).
When a defendant is being resentenced and a prior PSI exists, the
sentencing court may rely on the prior PSI if during the sentencing hearing,
the trial court receives “sufficient information to inform it of any changed
circumstances from the time the last PSI report was completed, thereby
allowing a fully informed, individualized sentencing decision.”
Commonwealth v. Ali, 197 A.3d 742, 763 (Pa. Super. 2018) (citation
omitted). In Ali, this Court affirmed a defendant’s judgment of sentence
because the record reflected that “the trial court properly considered the PSI
report from [the defendant’s] original sentencing hearing and conducted a
proper pre-sentence inquiry at the new sentencing hearing in the absence of
a second PSI report.” Id. at 764.
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However, in Kelly, this Court noted that the trial court did not order a
PSI, nor did the court “satisfy the requirement of Rule 702 that it place on the
record its reasons for dispensing with a PSI.” Kelly, 33 A.3d at 642. Further,
the Kelly Court stated that the trial court also failed to address defense
counsel’s concerns about the defendant’s mental health. Id. Therefore, the
Kelly Court reversed the defendant’s judgment of sentence and remanded for
resentencing. Id.Here, at sentencing, the trial court stated the reasons for Appellant’s
sentence as follows:
Taking into consideration the statements of both counsel, the
statement of Ashley Clark, the adult probation/parole officer, as
well [Appellant], taking into account the documents submitted to
me by Ms. Clark, as well as the revocation summary, noting that
not just what we discussed about the results that I mentioned
there are 25 misconducts on behalf of [Appellant].
So it’s clear that he is not only a danger to females, as noted by
his prior offenses, the reason we’re originally here for, but by his
recent conduct.
* * *
[A]ny lesser sentence would diminish the seriousness of this
matter.
* * *
[Appellant] is a danger to the community. He needs serious
treatment, and that can be best provided by State incarceration.
N.T. VOP Hr’g at 13, 17-18.
Although the VOP court stated that it had considered the revocation
summary and the documents provided by Probation Officer Clark, there is no
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indication that the VOP court considered a PSI report when imposing
Appellant’s sentence.8 See id. at 13. Indeed, the record reflects that the VOP
court did not mention a PSI report or state that it was relying on the prior PSI
at any point during the VOP hearing. Cf. Ali, 197 A.3d at 763-64 (affirming
the defendant’s judgment of sentence where the resentencing court expressly
incorporated the record from the defendant’s initial sentencing hearing into
the record for the resentencing hearing). The VOP court did not receive any
evidence relating to Appellant’s current mental health issues, past mental
health treatment, substance abuse treatment needs, or available rehabilitative
programs. Under these circumstances, we conclude that because the VOP
court only considered Appellant’s admission to methamphetamine use, his
history of prison misconducts, and Appellant’s inappropriate letter to Probation
Officer Clark, the VOP court did not conduct “a sufficient pre-sentence inquiry
such that it is apprised of the particular circumstances of the offense, not
limited to those of record, as well as defendant’s history and background”, nor
did the court explain its decision to dispense with a PSI. See Kelly, 33 A.3d
at 641-42. Additionally, the VOP court did not recommend any mental health
or substance treatment in its VOP sentence. See Sentencing Order, 7/15/21,
at 1-2 (unpaginated). Therefore, it appears that the VOP court abused its
discretion by imposing Appellant’s sentence without considering the
appropriate sentencing factors, which could have included the review of a PSI,
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8 These documents do not appear in the certified record.
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or other pertinent evidence. See Kelly, 33 A.3d at 641-42; see also Derry,
150 A.3d at 993 (stating that under the Sentencing Code, the sentence
imposed should be consistent with, among others, “the rehabilitative needs of
the defendant” (citation omitted)); cf. Commonwealth v. Fullin, 892 A.2d
843, 849-50 (Pa. Super. 2006) (reiterating that where the sentencing court
reviewed a PSI, it will be presumed that sentencing court considered the
defendant’s character and mitigating factors). For these reasons, we conclude
that Appellant’s discretionary aspects of the sentencing claim is not wholly
frivolous.
We now turn to our independent review of the record to determine if
there are “any additional, non-frivolous issues overlooked by counsel.” See
Flowers, 113 A.3d at 1250. Therefore, we also examine the legality of
Appellant’s sentence.
Merger
As part of our independent review, we examine whether any of
Appellant’s convictions merge, which implicates the legality of Appellant’s
sentence. See Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009);
see also Commonwealth v. Martinez, 153 A.3d 1025, 1030 n.2 (Pa. Super.
2016) (noting that the defendant’s merger claim was a non-waivable
challenge to the legality of his sentence). Our standard of review is de novo
and our scope of review is plenary. Baldwin, 985 A.2d at 833 (citation
omitted).
Section 9765 of the Sentencing Code provides that:
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No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
Our Supreme Court has explained that Section 9765 sets forth two
requirements for crimes to merge: “1) the crimes arise from a single criminal
act; and 2) all of the statutory elements of one of the offenses are included in
the statutory elements of the other.” Baldwin, 985 A.2d at 833.
We have explained that
When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a “break in
the chain” of criminal activity. The issue is whether the actor
commits multiple criminal acts beyond that which is necessary to
establish the bare elements of the additional crime, then the actor
will be guilty of multiple crimes which do not merge for sentencing
purposes.
In determining whether two or more convictions arose from a
single criminal act for purposes of sentencing, we must examine
the charging documents filed by the Commonwealth.
Martinez, 153 A.3d at 1030-31 (citations omitted and formatting altered).
If the offenses arise from a single criminal act, a merger analysis must
then consider whether “all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Baldwin, 985 A.2d at 833
(citing 42 Pa.C.S. § 9765). The Baldwin Court further explained that
we cannot ignore the simple legislative reality that individual
criminal statutes often overlap, and proscribe in the alternative
several different categories of conduct under a single banner.
See, e.g., aggravated assault, 18 Pa.C.S. § 2702 (defining seven
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distinct violations of law); involuntary deviate sexual intercourse,
18 Pa.C.S. § 3123 (setting forth eight separate violations).
Consequently, in such cases, we caution that trial courts must
take care to determine which particular “offenses,” i.e. violations
of law, are at issue in a particular case.
Id. at 837 n.6 (some citations omitted and formatting altered).
Terroristic threats is defined, in relevant part, as follows:
(a) Offense defined.—A person commits the crime of terroristic
threats if the person communicates, either directly or indirectly, a
threat to:
(1) commit any crime of violence with intent to terrorize
another;
* * *
(d) Grading.—An offense under subsection (a) constitutes a
misdemeanor of the first degree unless the threat causes the
occupants of the building, place of assembly or facility of public
transportation to be diverted from their normal or customary
operations, in which case the offense constitutes a felony of the
third degree.
18 Pa.C.S. § 2706(a)(1), (d).
A person is guilty of simple assault if he “attempts by physical menace
to put another in fear of imminent serious bodily injury[.]” 18 Pa.C.S. §
2701(a)(3).
Here, the Commonwealth charged Appellant as follows:
[COUNT ONE:]
. . . on or about June 28, 2018, in the said County of Erie and
[Commonwealth] of Pennsylvania, the said [Appellant] did
otherwise cause serious public inconvenience, or cause terror or
serious public inconvenience with reckless disregard of the risk of
causing such terror or inconvenience, to-wit: the said [Appellant]
did state to the victim Andrea Delsandro, he was going to kill her
and/or her new born infant and/or her father at a time when there
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was an active PFA in place causing the hospital staff to relocate
the victim as a patient to another room and floor and/or the
hospital occupants to be diverted from their existing operations .
. . thereby the said [Appellant] did commit the crime of terroristic
threats, a felony of the third degree. [18 Pa.C.S. § 2706(a)(1).]
COUNT TWO:
. . . that on the day and year aforesaid in the said County of Erie
and [Commonwealth] of Pennsylvania, the said [Appellant] did
communicate, either directly or indirectly, a threat to commit any
crime of violence with intent to terrorize another, to-wit: the said
[Appellant] did state he was going to kill victim Andrea
Delsandro’s new born infant and/or her father and bury him
and/or that he would go get his guns and blow off the victim’s
head . . . thereby the said [Appellant] did commit the crime of
terroristic threats, a misdemeanor of the first degree. [18 Pa.C.S.
§ 2706(a)(1).
COUNT THREE:
. . . that on the day and year aforesaid in the said County of Erie
and [Commonwealth] of Pennsylvania, the said [Appellant], did
attempt by physical menace to put another in fear of imminent
serious bodily injury, to-wit: the said [Appellant] did sit on the
hospital bed next to the victim, Andrea Delsandro and threaten to
kill her by using a firearm, and/or her newborn infant and/or her
father at a time when there was an active PFA in place . . . thereby
the said [Appellant] did commit the crime of simple assault, a
misdemeanor of the second degree. [18 Pa.C.S. § 2701(a)(3)]
Criminal Information, 8/23/18, at 1-2 (formatting altered); see also id. at 4
(setting forth the statutes under which the Commonwealth charged
Appellant); Trial Ct. Order, 6/10/19 (amending count three in the sentencing
order to cite 18 Pa.C.S. § 2701(a)(3) instead of 18 Pa.C.S. § 2701(a)(1)).
At Appellant’s original sentencing hearing, the trial court did not
explicitly rule on Appellant’s merger arguments. However, at sentencing, the
trial court imposed separate sentences for Appellant’s convictions at counts
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one, two, and three. See N.T. Sentencing, 2/13/19, at 16. In its 1925(a)
opinion relating to Appellant’s direct appeal, the trial court concluded that the
same evidence was sufficient to sustain Appellant’s convictions at counts one
and two. See Trial Ct. Op., 6/12/19, at 10-11. The trial court also referred
to the same threats when discussing the sufficiency of the evidence supporting
Appellant’s simple assault conviction. See id. at 11-12.
Based on our review of the record, it appears that the factual basis for
the two terroristic threats offenses as charged in the criminal information
described identical conduct by Appellant. Further, all of the elements of the
misdemeanor-grade terroristic threats offense are included within the felony-
grade terroristic threats. Therefore, it appears that the two elements of
merger are met. See 42 Pa.C.S. § 9765; Baldwin, 985 A.2d at 833.
Additionally, the statutory elements of simple assault may be included in the
statutory elements of terroristic threats. Compare 18 Pa.C.S. § 2706(a)(1)
(a person commits the offense of terroristic threats “if [that] person
communicates, either directly or indirectly, a threat to commit any crime of
violence with intent to terrorize another”) with 18 Pa.C.S. § 2701(a)(3) (a
person commits the offense of terroristic threats if that person “attempts by
physical menace to put another in fear of imminent serious bodily injury”).
Accordingly, our independent review of the record has revealed a potential
non-frivolous challenge to the legality of Appellant’s sentence regarding
merger.
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Revocation of Consecutive Probation
We also examine the legality of the VOP court’s revocation of Appellant’s
consecutive terms of probation, which Appellant had not begun serving at the
time of the violation. See Commonwealth v. Simmons, 262 A.3d 512 (Pa.
Super. 2021) (en banc).
In Simmons, this Court overruled Commonwealth v. Wendowski,
420 A.2d 628 (Pa. Super. 1980) and its progeny and held that the trial court
lacked statutory authority to revoke the defendant’s probation before he
began serving the probation portion of his sentence.9 In reaching that
conclusion, the Simmons Court explained:
Simply stated, Wendowski was incorrect in holding that a trial
court may anticipatorily revoke an order of probation and in
reasoning that “a term of probation may and should be construed
for revocation purposes as including the term beginning at the
time probation is granted.” Wendowski, 420 A.2d at 630(quotations omitted). No statutory authority exists to support this
understanding. Rather, the plain language of the relevant
statutes provides that: a trial court may only revoke an order of
probation “upon proof of the violation of specified conditions of
the probation;” the “specified conditions” of an order of probation
are attached to, or are a part of, the order of probation; and, when
the trial court imposes an “order of probation” consecutively to
another term, the entirety of the “order of probation” – including
the “specified conditions” – do not begin to commence until the
prior term ends.
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9 Simmons was decided after Appellant filed his notice of appeal. It is well
settled that “Pennsylvania appellate courts apply the law in effect at the time
of the appellate decision. This means that we adhere to the principle that a
party whose case is pending on direct appeal is entitled to the benefit of
changes in law which occur before the judgment becomes final.”
Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations
omitted and formatting altered).
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Simmons, 262 A.3d at 524-25; see also Commonwealth v. K. Conley, 266
A.3d 1136, 1140 (Pa. Super. 2021) (concluding that “under Simmons, [the
a]ppellant was not yet required to comply with the probation portion of the
imposed order of sentence before he began serving it; thus, his
noncompliance did not permit the anticipatory revocation of his order of
probation”).
Here the trial court originally sentenced Appellant to an aggregate term
of four years’ county restrictive intermediate punishment followed by three
years of probation.10 As of the date of the revocation hearing, Appellant was
still serving his four-year term of county restrictive intermediate punishment.
Therefore, he had not yet begun serving his consecutive terms of probation.
Although this Court has not applied Simmons to the revocation of
probation which runs consecutive to a term of county intermediate
punishment, the same rationale may apply in this case. For these reasons,
our independent review of the record has revealed another potential non-
frivolous challenge to the legality of the sentence regarding the applicability
of Simmons to the revocation of Appellant’s consecutive terms of probation.
Therefore, our independent review of the record confirms that there are
potential non-frivolous issues relating to the legality of Appellant’s sentence.
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10As stated above, Appellant’s probationary sentence was composed of three
consecutive terms of probation: two years for count two, nine months for
count four, and three months for count six. The trial court also sentenced
Appellant to one year of probation for count three, but that term was
concurrent to the two years’ probation imposed at count two.
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For these reasons, we find Counsel’s Anders/Santiago brief to be
insufficient and deny Counsel’s petition to withdraw. Accordingly, we deny
Counsel’s petition to withdraw and direct Counsel to file either an amended
Anders/Santiago brief that shall include a thorough discussion of the issues
identified herein or file an advocate’s brief within thirty days. Failure to file
either an Anders/Santiago or advocate’s brief within this time frame may
result in quashal. The Commonwealth shall have thirty days thereafter to file
a response.
Petition to withdraw denied with instructions. Panel jurisdiction
retained.
Judge Murray joins the memorandum.
Judge King concurs in the result.
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