Com. v. Gray, E.

J-S30036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDDIE RAY GRAY :
:
Appellant : No. 15 WDA 2020
Appeal from the Judgment of Sentence entered May 31, 2019
In the Court of Common Pleas of Warren County Criminal Division at
No(s): CP-62-CR-0000264-2012
MEMORANDUM PER CURIAM: FILED JULY 28, 2020
Appellant Eddie Ray Gray appeals from the Judgment of Sentence1
entered on May 31, 2019, as made final by the Order entered in the Court of
Common Pleas of Warren County on June 25, 2019, denying his Post-Sentence
Motion following resentencing upon remand from the United States District
Court for the Western District of Pennsylvania at which time he received an
aggregate prison term of twenty-five (25) years to fifty (50) years with credit
for time served. On this direct appeal, Appellant’s counsel has filed both a
petition for leave to withdraw as counsel and an accompanying brief pursuant
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1 Appellant purports to appeal from the Order entered on June 25, 2019,
denying his post-sentence motion. However, “[i]n a criminal action, appeal
properly lies from the judgment of sentence made final by the denial of post-
sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2
(Pa.Super. 2001), appeal denied, 800 A.2d 932 (Pa. 2002) (citation omitted).
We have amended the caption accordingly.
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to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel
has complied with the procedural requirements necessary to withdraw.
Moreover, after independently reviewing the record, we conclude that the
instant appeal is wholly frivolous. We, therefore, grant counsel’s petition for
leave to withdraw and affirm Appellant’s judgment of sentence.
A panel of this Court previously summarized the lengthy and disturbing
facts and procedural history herein on direct appeal; therefore, we need not
restate them in their entirety. Commonwealth v. Gray, No. 1503 WDA 2012
(Pa.Super. filed July 9, 2013) (unpublished memorandum). Briefly, Appellant
and his cousin and codefendant Jeremy C. Hoden were tried together and were
sentenced to thirty-five and one-half (35 ½) years to seventy-one (71) years
in prison after a jury convicted them of four (4) counts of Retaliation Against
a Prosecutor or Judicial Official, three (3) counts of Retaliation Against a
Witness, Victim or Party, seven (7) counts of Terroristic Threats, and one (1)
count of Conspiracy- Retaliation Against a Prosecutor or Judicial Official.2 Prior
thereto, Hoden had pled guilty to numerous charges in connection with two
criminal matters in 2007, one of which involved his attack on a seventy-seven
year old woman which left her hospitalized with serious injuries. The two
victims, the elderly woman and her adult son, would have been witnesses
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2 18 PA.C.S.A. §§ 4953.1; 4953; 2706(a)(1); and, 903 respectively.
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against Hoden if those matters proceeded to trial. Hoden received a total term
of imprisonment of twelve (12) years to twenty (24) years in prison.
Starting in January of 2012 and ending in February of 2012, Hoden and
Appellant, both of whom were in prison at the time, mailed letters containing
extremely violent, vulgar and highly disturbing language to several trial court
judges, the District Attorney an Assistant District Attorney and the two
victims. A Pennsylvania State Police trooper also was targeted in the letters,
though he did not personally receive one. In the correspondence, Appellant
and Hoden threated the lives of the recipients as well as members of their
families in graphic detail as to the pain they would inflict upon each individual.3
The documents indicated that the victims could be killed when Appellant was
released from prison and suggested he and Hoden had the ability to obtain
help from outside sources in carrying out their threats while they were
imprisoned. Each piece of correspondence was signed by the sender, and had
the sender's name and prison address on the return address portion of the
envelope used to mail it.
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3 For example, this Court previously stressed on direct appeal: “[t]he actions
that [Appellant] said that he would commit with respect to ADA Feronti and
Judge Morgan are so vile that we could not reproduce them. Indeed, ADA
Feronti was pregnant when the letters were sent to her office, and her
colleagues did not allow her to view them for fear she would suffer a
miscarriage.” Gray, supra at 23-25.
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These letters gave rise to the charges for which the men were tried
commencing on August 29, 2012. Following trial, the jury convicted both men
of the aforementioned crimes. This Court affirmed Appellant’s judgment of
sentence on direct appeal, and the Pennsylvania Supreme Court denied his
petition for allowance of appeal on November 27, 2013.
On July 1, 2014, Appellant filed a petition pursuant to the Post
Conviction Relief Act (PCRA)4 pro se which was later amended by counsel.
Following an evidentiary hearing on August 17, 2015, the trial court denied
the PCRA petition. Appellant appealed, and this Court affirmed the PCRA
court’s order denying his PCRA petition on September 22, 2016.
Commonwealth v. Gray, No. 1733 WDA 2015 (Pa.Super. filed Sept. 22,
2016) (unpublished memorandum). The Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on February 28, 2017.
On February 21, 2019, the United States District Court for the Western
District of Philadelphia granted, in part, Appellant’s pro se Habeas Corpus
petition and vacated Counts Five (5), Six (6) and Seven (7), all of which
related to the three Retaliation Against a Witness, Victim or Party convictions.5
The District Court determined that Appellant’s trial attorney had been
ineffective in failing to object to the form of the jury instruction pertaining to
these counts at trial. The Court ordered the Commonwealth to retry Appellant
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4 42 Pa.C.S.A. §§ 9541-9546.
5 18 Pa.C.S.A. § 4953.
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on the three charges within 180 days, or vacate those convictions and
resentence him on the remaining counts. In a motion filed March 8, 2019,
the Commonwealth opted to have Appellant resentenced on the convictions
that had not been vacated.
The trial court held a resentencing hearing on May 31, 2019. At that
time, after an on the record colloquy at which time Appellant was advised of
the risks in doing so, he proceeded without counsel. N.T. Resentencing
Hearing, 5/31/19, at 2-5. At the outset of the hearing, Appellant made an
oral motion for extraordinary relief. Id. at 6. In his motion, Appellant argued
that the Commonwealth had violated Pa.R.Crim.P. 573 by failing to disclose
to the defense that the Commonwealth had been aware of letters written by
Appellant and Hoden that allegedly asserted their true intent in writing the
aforementioned threat letters was to further an escape from prison plot. The
trial court denied the oral motion and in doing so explained to Appellant that
even were it to assume the letters said what Appellant claimed they did, they
would not have changed the result of his trial, because his defense was that
Hoden wrote all the letters without Appellant’s knowledge. Id. at 17-18.
The Commonwealth then urged the trial court to resentence Appellant
to thirty-five and one half (35 ½) years to seventy-one (71) years in prison.
Id. at 21. Despite his previously-presented oral motion, Appellant indicated
that he agreed with the Commonwealth “that these crimes were just as
heinous than as they are now. There’s no taking away from what I wrote,
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what I said. The difference now being I’ve accepted responsibility for what I
did regardless of why I did it. I did write those letters. I did send them to the
judges. I did send them to the victims and I did send them to the
prosecutor/ADA in the Hoden case. Now I get that.” Id. at 21-22.
Prior to imposing its original sentence, the trial court had the benefit of
a pre-sentence investigation report. N.T. Sentencing, 9/7/12, at 5.
Importantly, before re-imposing sentence, the trial court recognized Appellant
had made great strides toward rehabilitation, and, therefore, determined that
while it could keep the initial sentence intact, it would not do so. The trial
court stressed it was of the belief that it is “never wed to any sentence and
[it] always think[s] good legal work should be rewarded.” N.T., Resentencing
Hearing, 5/31/19, at 34-38. The court also was aware that at the time the
offenses occurred in this case Appellant was classified "REVOC" (Repeat
Violent Offender Category) for purposes of determining his Prior Record Score
(PRS) under the Sentencing Guidelines, 204 Pa. Code §303.4(a)(2), and
§303.16(a), and that the four counts of Retaliation Against Prosecutor or
Judicial Official involved four individuals, two judges and two prosecutors,
each of whom received a threatening letter from Appellant. Id. at 36-37.
The trial court further referenced on the record at resentencing its
reasons for the sentence. The court stressed that Appellant’s acts of
threatening judges and prosecutors were the kind of things that hit at the very
basis of the judicial system. The court further highlighted that Appellant’s
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actions exceeded threats to kill the victims by adding that because he was
connected to gangs in Pittsburgh he could still cause them harm from prison.
The court reminded Appellant his acts were heinous and designed to strike
terror in the victims. The trial court also took into account the general
sentencing standards contained in 42 Pa.C.S.A. Sec. 9721(b) when fashioning
a sentence that it believed would protect the public and the judicial system,
as well as take into account the rehabilitative needs of Appellant and the
impact his actions had on the lives of the victims. Importantly, the court also
acknowledged that Appellant had made positive strides during his time in
prison. Id. at 34-38.
Appellant was resentenced as follows: Count 1 -Retaliation against
prosecutor or judicial official five (5) to ten (10) years’ incarceration; Count
2- Retaliation against prosecutor or judicial official five (5) to ten (10) years’
incarceration consecutive to count 1; Count 3- Retaliation against prosecutor
or judicial official five (5) to ten (10) years’ incarceration consecutive to Count
2; Count 4- Retaliation against prosecutor or judicial official five (5) to ten
(10) years’ incarceration consecutive to Count 3. On the Counts 9 through 15,
Misdemeanor 1 Terroristic Threat convictions, the trial court sentenced
Appellant to pay a $100.00 fine with no incarceration time ordered. On Count
17- Criminal Conspiracy, Appellant was sentenced to (five) 5 to (ten) 10 years’
incarceration consecutive to Count 4. Thus, Appellant’s aggregate sentence
was a minimum period of twenty-five (25) years to a maximum of fifty (50)
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years in prison, with credit for time served. Appellant was found to be neither
Boot Camp nor RRRI eligible. Id. at 40. See also, Sentencing Order,
5/31/19. The trial court pointed out that Hoden had received a longer
sentence than Appellant’s for essentially the same conduct. Id. at 39.
Appellant filed a post-sentence motion on June 10, 2019, and in its
Order entered on June 25, 2019, the trial court denied the same. The instant,
timely appeal followed. On January 2, 2020, the trial court entered its Order
directing Appellant to file a concise statement of the matters complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Counsel was appointed, and on
January 17, 2020, he filed a statement in lieu of errors complained of on
appeal. On January 27, 2020, the trial court entered its Pa.R.A.P. 1925(a)
Opinion wherein it indicated it had addressed on the record at the time of
resentencing each of Appellant’s issues raised on appeal and referred this
Court to its reasoning set forth on May 31, 2019.
As previously stated, counsel has filed a petition to withdraw from
representation along with an Anders brief with this Court. Before reviewing
the merits of this appeal, we first must determine whether appointed counsel
has fulfilled the necessary procedural requirements for withdrawing as
counsel. Commonwealth v. Miller, 715 A.2d 1203, 1207 (Pa.Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “petition the court for
leave to withdraw stating that, after making a conscientious examination of
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the record, counsel has determined that the appeal would be frivolous.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which
he or she:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel’s conclusion that the appeal is frivolous; and (4) state[s]
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, supra, 978 A.2d at 361. Finally, counsel must furnish a copy of
the Anders brief to his or her client and advise the client “of [the client’s]
right to retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896,
898 (Pa.Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n. 5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. ... [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
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intentionally or not, missed or misstated. We need not analyze those issues
of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel complied with all of the above procedural
obligations. We must, therefore, review the entire record and analyze whether
this appeal is, in fact, wholly frivolous. Our review begins with the claims
Appellant raises in his brief:
(1) Did the trial court abuse its discretion in entering its May 31,
2019, sentencing order in the within case?
(2) Were the sentences on the convictions at Counts 1,2,3, and
4, for the 'Retaliation Against Prosecutor or Judicial Officials'
(18 Pa.C.S.A. Sec. 4953.1), excluding the sentence on the
conspiracy conviction to commit - same, illegal as the trial
court failed to merge the sentences entered for the
convictions of 'Retaliation Against Prosecutor or Judicial
Official'(18 Pa.C.S.A. Sec. 4953.1)?
(3) Were the verdicts relating to Counts 1,2,3,4, and 17 (ie.
Retaliation Against Prosecutor or Judicial Official, and,
conspiracy to commit same, against the weight of the
evidence as there was no objective harm separate and apart
from the mere showing of an unlawful act by the defendant?
(4) Did the trial court error [sic] in failing to grant extraordinary
relief when the prosecutor failed to provide [Appellant] with
evidence that they were aware, prior to trial, that
[Appellant’s] intent in writing the offending letters was not
for the purpose of threatening the judicial officials or
prosecutors but rather was for the purpose of having himself
[Appellant] transported to Warren County Jail ,from a State
Correctional Facility, to facilitate an escape plot?
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(5) Was the waiver of counsel colloquy at time of resentencing
so defective as to constitute reversible error?
Anders brief at 1-3.
In considering Appellant’s claims, we are guided by a well-settled
standard of review. We have explained:
sentencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias or
ill will. It is more than just an error in judgment.
Commonwealth v. Crork, 966 A.2d 585, 590 (Pa.Super. 2009) (quotations
and citations omitted).
Appellant initially challenges the discretionary aspects of his sentence.
Appellant is not entitled to review of such claims as a matter of right, for this
Court first conducts a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
****
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the sentencing
process. At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what
fundamental norms the sentence violates, and the manner in
which it violates that norm.
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Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citations
omitted).
Herein, Appellant preserved his first claim by filing a post sentence
motion, and a Pa.R.A.P. 2119(f) statement is included in the Anders brief.
However, the substance of Appellant’s discretionary aspects of sentencing
claim is frivolous. First, the trial court had the benefit of a PSI. “Where pre-
sentence reports exist, we shall continue to presume that the sentencing judge
was aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Further, Appellant’s
sentence was in the standard range of the sentencing guidelines, and the trial
court detailed its reasons for imposing the same. Where a sentence is within
the standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code. See Moury, 992 A.2d 162, 171
(Pa.Super. 2010).
Moreover, this Court has held that the imposition of consecutive
sentences following one’s convictions for multiple criminal acts that arose out
of a larger criminal transaction does not in itself raise a substantial question,
as a defendant is not entitled to a "volume discount" for his crimes.
Commonwealth v. Hoag, 655 A.2d 1212, 1214 (Pa.Super. 1995).
Therefore, under the circumstances of this case, we cannot conclude that the
imposition of concurrent, standard range sentences constitutes an
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unreasonable sentence. Hence, Appellant’s challenges to the discretionary
aspects of his sentence is frivolous.
Appellant next posits the convictions for retaliation against the judges
and prosecutors, excluding the conspiracy to commit the same offenses,
should have merged for sentencing purposes because they were part of one
episode. Our standard of review for a merger claim is de novo and the scope
of review is plenary. Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.
Super. 2013). 42 Pa.C.S.A. §9765 states, in part, that no crimes shall merge
for sentencing purposes unless the crimes arise from a single criminal act.
Convictions merge for sentencing purposes where: “(1) the crimes arise from
a single criminal act; and (2) all of the statutory elements of one of the
offenses are included within the statutory elements of the other.”
Commonwealth v. Kimmel, 125 A.3d 1272, 1276 (Pa.Super. 2015) (en
banc). As previously stated, Appellant wrote different letters to two trial court
judges, the district attorney and an ADA; therefore, his separate criminal acts
were directed toward each of these victims. It follows that the merger doctrine
does not apply, and this claim is meritless.
Appellant’s third issue challenging the weight of the evidence is waived
for his failure to preserve it in his post-sentence motion. We observe that
Appellant never made a pre or post-sentence motion for a new trial based on
the weight of the evidence. See Commonwealth v. Thompson, 93 A.3d
478, 490 (Pa.Super. 2014) (“a weight of the evidence claim must be preserved
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either in a post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing.”). See also Pa.R.Crim.P. 607(A)(1)-(3) (claim that
verdict was against weight of evidence shall be raised in motion for new trial
orally on the record before sentencing, or in written motion before or after
sentencing).
Next, Appellant asserts the trial court erred in failing to grant his oral
motion for extraordinary relief because the prosecution withheld evidence
which would have revealed his true intent in writing the letters. Appellant
contends his intent when writing the letters was to further an escape plot with
Hoden, not to harm the judicial officer or prosecutors to whom the
correspondence was sent. Essentially, this is a claim of after-discovered
evidence discovered during the post-sentence stage. Such a claim must be
raised promptly with the trial judge at the post-sentence stage, and where an
appellant has failed to file a post-trial motion for a new trial on the basis of
after-discovered evidence, such a claim is deemed waived. See
Commonwealth v. Childress, 680 A.2d 1184, 1189 (Pa.Super. 1996).
Therefore, Appellant’s failure to include this claim in his post-sentence motion
results in its waiver.
Moreover, even if it had been properly preserved, the trial court at the
original sentencing hearing stated on the record "[t]here was a discussion with
the Attorney General prior to the case starting about putting a letter that they
found in your cell about some type of escape plan or something along that
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nature." N.T. Sentencing, 9/7/2012, at 10. Therefore, Appellant cannot now
plausibly claim he was unaware that the Commonwealth knew of his alleged
motive in writing these letters prior to resentencing, at which time his own
admissions that he wrote the disturbing letters to the affected individuals
contradict this present argument.
Finally, Appellant maintains the waiver of counsel colloquy conducted at
the resentencing hearing was so defective as to constitute reversible error.
Following our review of the resentencing transcript, we find this claim to be
disingenuous, for Appellant clearly indicated his was aware of his actions and
presented arguments which the trial court recognized as “good legal work.”
N.T. Resentencing Hearing, 5/31/19, at 38. In fact, at no time at the
resentencing hearing or in his post sentence motion did Appellant contend his
colloquy was in any way defective. It is axiomatic that the mere filing of an
Anders brief and petition to withdraw will not serve to resuscitate claims that
were already waived upon the filing of the notice of appeal. See Pa.R.A.P.
302(a) (providing the general rule that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal”). Thus, this issue
is both waived and meritless.
We have independently considered the claims raised within Appellant’s
brief and determined that they are frivolous. In addition, after an independent
review of the entire record, we see nothing that might arguably support this
appeal. The appeal is, therefore, wholly frivolous. Accordingly, we grant
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counsel’s petition for leave to withdraw and affirm Appellant’s judgment of
sentence.
Petition for leave to withdraw appearance granted. Judgment of
sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2020
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