Com. v. Bolshakov, I. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
IVAN BOLSHAKOV, : No. 1063 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, March 5, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0001834-2017
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 06, 2019
Ivan Bolshakov appeals from the March 5, 2018 judgment of sentence
of the Court of Common Pleas of Delaware County of one year less one day to
two years less one day of imprisonment for simple assault, followed by two
years of probation for retail theft and possession of drug paraphernalia. 1
J. Anthony Foltz, Esq. (“Attorney Foltz”), had filed an application to withdraw,
alleging that the appeal is wholly frivolous, accompanied by an Anders brief.2
After careful review, we deny counsel’s application to withdraw and remand
for either a compliant Anders/Santiago brief or an advocate’s brief.
1 18 Pa.C.S.A. §§ 2701(a)(4) and 3929(a)(1), and 35 P.S. § 780-113(a)(32),
respectively.
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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The record reflects that Ashai Mathurin (“Mathurin”), a loss prevention
agent for Rite Aid, was working at the Rite Aid store at 123 South 69th Street
in Upper Darby Township, Pennsylvania on February 8, 2017 when he
observed appellant walking around the store with a backpack. Mathurin saw
appellant taking random items and putting them in his backpack in a cart.
(Notes of testimony, 1/17/18, at 24-25.) Mathurin confronted appellant and
told him that he had to come with him because he was stealing. (Id. at 26.)
Mathurin found Febreze air spray, Dove original soap six pack, cotton balls,
energy drinks, socks, insoles for shoes, hairclips, and wristbands valued at
$109.13 in the backpack. Mathurin called the Upper Darby Township Police.
(Id. at 30-31.)
Officer Francis Devine (“Officer Devine”) of the Upper Darby Township
Police Department responded to the call. When Officer Devine questioned
appellant concerning his name, address, and date of birth, appellant
“understood everything I was asking him and I was having a full conversation
in English just as I am with you today.” (Id. at 38.) Because Officer Devine
could not verify the identifying information appellant gave him through his
radio, Officer Devine informed appellant that he would have to place him in
handcuffs. Appellant complied with the request as if he understood what
Officer Devine said to him. (Id. at 39-40.) Before conducting a pat down of
appellant, Officer Devine asked appellant if he had anything on his person that
could hurt Officer Devine, appellant replied “that he had nothing on him that
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would hurt” Officer Devine. (Id. at 40.) As he conducted the search,
Officer Devine was poked in the hand by a used hypodermic needle that was
protruding through the fabric of the pocket of appellant’s coat. (Id. at 41.)
Officer Devine also found a bottle cap in the pocket that had an off-white
residue and cotton inside it. Officer Devine explained at trial that the bottle
cap was normally used in the preparation of the injection of heroin. (Id.)
Officer Devine went to the hospital and went through a battery of tests to
determine if he had contracted any diseases from the needle. He had to
undergo nine or ten blood tests in a six month period. (Id. at 42, 45.)
Officer Devine was cleared on September 11, 2017. (Id. at 47.)
Officer Charles Peterson of the Upper Darby Police Department
transported appellant to the police station. Officer Peterson testified that
appellant made appropriate responses in English to Officer Peterson. (Id. at
62-63.) When Officer Peterson conducted a search of appellant at police
headquarters, he found a glass pipe that would be used to smoke narcotics
and a plastic cap or bottle cap with some white residue around it. (Id. at 64.)
Officer Peterson and appellant had a conversation prior to appellant
undergoing a blood draw. (Id. at 67.) Officer Peterson testified that he
overheard appellant speaking to medical professionals at the hospital in
English. (Id. at 70.)
On January 18, 2018, the jury found appellant guilty of the
aforementioned crimes set forth above. On March 5, 2018, the trial court
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sentenced appellant and found him eligible for immediate parole with credit
for time served.
On April 3, 2018, appellant filed a notice of appeal. On April 4, 2018,
the trial court ordered appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On June 13, 2018,
in accordance with Pa.R.A.P. 1925(c)(4), Attorney Foltz informed the trial
court that he intended to file an Anders brief. On June 26, 2018, the trial
court filed an opinion in which it stated that it did not see any issue of arguable
merit.
Attorney Foltz raises one issue of arguable merit for this court’s review:
“The Commonwealth failed to produce sufficient evidence that [appellant]
committed the offenses because his limited understanding of the English
language raises doubt that he had the requisite mens rea to commit the acts
charged.” (Anders brief at 5.)
On August 16, 2018, Attorney Foltz filed in this court an application to
withdraw his appearance because he found the appeal to be “wholly frivolous.”
On August 16, 2018, Attorney Foltz filed an Anders brief.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v. Flowers,
113 A.3d 1246, 1247-1248 (Pa.Super. 2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
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direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939
A.2d 896, 898 (Pa.Super. 2007). This
Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to be
wholly frivolous. Counsel
must also file an Anders brief
setting forth issues that might
arguably support the appeal
along with any other issues
necessary for the effective
appellate presentation
thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to retain
new counsel, proceed pro se
or raise additional points
worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise requirements of an Anders brief:
[T]he Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . must: (1) provide a
summary of the procedural
history and facts, with
citations to the record;
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(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 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Regarding the requirements of Anders, Attorney Foltz has filed a
petition that avers that, after a thorough review of appellant’s case, he finds
the appeal to be wholly frivolous. He has also filed a brief that attempts to
set forth the issues that might arguably support the appeal. He identifies the
issue in the statement of the question of arguable merit in the brief as: “The
Commonwealth failed to produce sufficient evidence that [appellant]
committed the offenses because his limited understanding of the English
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language raises doubt that he had the requisite mens rea to commit the acts
charged.” (Anders brief at 5.)
The body of the argument section of the brief does not adequately
address the issue contained in the statement of the question of arguable merit,
so the brief is not in compliance with Anders. While Attorney Foltz argues
there is sufficient evidence of record to establish that appellant possessed the
necessary mens rea to be convicted of simple assault at 18 Pa.C.S.A.
§ 2701(a)(1), appellant was convicted of simple assault at 18 Pa.C.S.A.
§ 2701(a)(4). The trial court instructed the jury on the elements of
Section 2701(a)(4), 18 Pa.C.S.A. § 2701(a)(4), and the jury informed the trial
court that appellant was convicted under Section 2701(a)(4). (See notes of
testimony, 1/17/18 at 115-116; 1/18/18 at 3-4.)
The relevant statutes provide as follows:
(a) Offense defined.--Except as provided under
section 2702 (relating to aggravated assault), a
person is guilty of assault if he:
(1) attempts to cause or intentionally,
knowingly or recklessly causes
bodily injury to another;
....
(4) conceals or attempts to conceal a
hypodermic needle on his person
and intentionally or knowingly
penetrates a law enforcement
officer or an officer or an employee
of a correctional institution, county
jail or prison, detention facility or
mental hospital during the course of
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an arrest or any search of the
person.
18 Pa.C.S.A. § 2701(a)(1) and (4).
Attorney Foltz reaches the conclusion that the evidence was sufficient
to establish that appellant acted recklessly if not intentionally and knowingly.
(Anders brief at 15.) However, recklessly causing bodily injury to another
person is an element of 18 Pa.C.S.A. § 2701(a)(1) not § 2701(a)(4). While
the appeal may in fact be frivolous, Attorney Foltz cannot argue that there
was sufficient evidence to convict under Section 2701(a)(1) when appellant
was convicted under Section 2701(a)(4).
Due to Attorney Foltz’s failure to comply with Anders, we deny
Attorney Foltz’s petition to withdraw as counsel. We instruct counsel to file
either a compliant Anders/Santiago brief or an advocate’s brief within
30 days of the date of this Memorandum. Appellant and the Commonwealth
may respond within 30 days of counsel’s filing of his brief.
Application to withdraw as counsel denied. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/19
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