Com. v. Brooks, N. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHANIEL BROOKS, JR.
Appellant No. 1783 EDA 2015
Appeal from the Judgment of Sentence June 4, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003577-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 22, 2016
Appellant, Nathaniel Brooks, Jr., appeals from the judgment of
sentence entered in the Chester County Court of Common Pleas, following
his jury trial convictions of indecent exposure and open lewdness.1 We
affirm and grant counsel’s petition to withdraw.
On August 23, 2014, Thérèse McElwee entered the Paoli Public Library.
As she sat down at a table, she made eye contact with Appellant and smiled.
After a short time, Ms. McElwee noticed Appellant looked at her as he moved
to a computer station closer to her table. Ms. McElwee looked up from her
work and saw Appellant partially unclothed, with his genitalia exposed as he
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1
18 Pa.C.S.A. §§ 3127(a) and 5901, respectively.
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*Retired Senior Judge assigned to the Superior Court.
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masturbated. Ms. McElwee immediately gathered her belongings and moved
from her seat to report the incident. As she stood, Appellant said “I’ll go, I’ll
go” and left the library.
Ms. McElwee reported the incident to a librarian on duty. Ms. McElwee
and the librarian left the library to see if Appellant was still nearby. The
women did not see Appellant outside of the building; instead they
encountered Officer Jackson, who was investigating a separate incident.
Officer Jackson relayed a description of Appellant over the police radio to
other officers in the area. While patrolling nearby at the Paoli train station,
Officer Gasparo noticed a man who matched Appellant’s description. Officer
Gasparo notified Officer Jackson, who drove by the train station with Ms.
McElwee in his patrol vehicle. Ms. McElwee positively identified Appellant as
the man who exposed himself to her in the library.
Meanwhile, Appellant told Officer Gasparo that Appellant had been at
the Paoli Public Library earlier in the day. Appellant stated a woman flirted
with him while he was there and asked him to expose himself. Appellant
admitted he touched himself to please the woman. Officer Gasparo arrested
Appellant and took him to the police station, where Appellant gave another
verbal account of the incident consistent with his first statement. Appellant
gave a written statement that differed from his verbal statements. In his
written statement, Appellant said a woman approached him and asked him
to expose himself, but he immediately left the library without doing so.
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Prior to trial, Appellant filed multiple pro se motions, which were
forwarded to Appellant’s appointed counsel. Appellant waived his right to
counsel before trial, and his attorney acted as standby counsel during the
proceedings. Following trial on June 4, 2015, a jury convicted Appellant of
indecent exposure and open lewdness. Sentencing occurred immediately.
Appellant requested the court to appoint counsel for sentencing and appeal,
which the court did. The court then sentenced Appellant to nine (9) to
twenty-three (23) months’ incarceration for the indecent exposure
conviction. The open lewdness conviction merged with indecent exposure
for purposes of sentencing, so the court did not impose further punishment.
Appellant submitted various pro se motions/filings between June 4, 2015,
and June 10, 2015, which the court resolved. None of the post-sentence
filings challenged the discretionary aspects of sentencing.
Appellant filed a pro se notice of appeal on June 11, 2015. The court
held a Grazier2 hearing on June 24, 2015, at which time Appellant decided
to continue the appeal process with the assistance of counsel. The court
therefore denied as moot Appellant’s outstanding motion to appeal pro se.
On June 29, 2015, the court ordered counsel to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 15,
2015, appellate counsel requested an extension to file the Rule 1925(b)
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2
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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statement, which the court granted. On August 17, 2015, counsel ultimately
filed a Rule 1925(c)(4) statement of intent to file a brief pursuant to Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
Counsel filed her petition with this Court on October 5, 2015, to withdraw as
counsel.
As a preliminary matter, we address counsel’s petition to withdraw her
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). In Santiago, supra, our
Supreme Court addressed the briefing requirements where court-appointed
appellate counsel seeks to withdraw representation:
Neither Anders nor McClendon 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
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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.
Instantly, appellate counsel filed a petition to withdraw representation.
The petition states counsel fully reviewed the record and concluded the
appeal would be wholly frivolous. In her Anders brief, counsel provides a
summary of the procedural history of the case. Counsel refers to evidence
in the record that may arguably support the issues raised on appeal,
provides citations to relevant law, and states counsel’s reasons for her
conclusion that the appeal is wholly frivolous. Counsel indicates she notified
Appellant of the withdrawal request. Counsel also supplied Appellant with a
copy of the brief and a letter explaining Appellant’s right to proceed pro se
or with new privately retained counsel to raise any points Appellant deems
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necessary. Therefore, counsel has substantially complied with the
requirements of Anders and Santiago.
Appellant has filed neither a pro se brief nor a counseled brief with
new privately retained counsel, so we review this appeal on the basis of the
issues raised in the Anders brief:
WAS THE JURY’S VERDICT FINDING APPELLANT GUILTY
OF INDECENT EXPOSURE PURSUANT TO 18 PA.C.S.A. §
3127(A) AND OPEN LEWDNESS PURSUANT TO 18
PA.C.S.A. § 5901 AGAINST THE WEIGHT AND
SUFFICIENCY OF THE EVIDENCE PRESENTED BY THE
COMMONWEALTH?
DID THE TRIAL COURT ABUSE ITS DISCRETION
SENTENCING APPELLANT TO NINE TO TWENTY-THREE
MONTHS’ INCARCERATION FOR INDECENT EXPOSURE, 18
PA.C.S.A. § 3127(A)?
(Anders Brief at 3).3
Appellant first argues nudity on its own is not a lewd act as set forth in
the open lewdness statute. Appellant contends the jury’s questions
regarding whether masturbation was an essential element of a lewd act
indicated the jury was not convinced Appellant masturbated in the library.
Appellant maintains the jury’s questions indicated their doubt that the facts
presented were adequate to return a guilty verdict on the charge of open
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3
Notwithstanding the phrasing of Appellant’s first issue, his argument as
presented challenges only the sufficiency of the evidence, not the weight of
the evidence. See, e.g., Commonwealth v. Smith, 853 A.2d 1020
(Pa.Super. 2004) (explaining remedy for challenges to sufficiency of
evidence is judgment of acquittal; remedy for challenges to weight of
evidence is new trial).
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lewdness. Appellant concludes the Commonwealth offered insufficient
evidence at trial to convict Appellant of open lewdness.4 We disagree.
With respect to a sufficiency of the evidence challenge:
The standard we apply…is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict
winner, there is sufficient evidence to enable the fact-
finder to find every element of the crime beyond a
reasonable doubt. In applying [the above] test, we may
not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn
from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the [finder]
of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crimes Code defines open lewdness as follows:
§ 5901. Open lewdness.
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4
Appellant makes no challenge to the sufficiency of the evidence supporting
his conviction for indecent exposure.
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A person commits a misdemeanor of the third degree if he
does any lewd act which he knows is likely to be observed
by others who would be affronted or alarmed.
18 Pa.C.S.A. § 5901.
Instantly, the Commonwealth presented the testimony of Ms.
McElwee, Officer Gasparo, and Officer Jackson at trial. Ms. McElwee testified
that she made eye contact with Appellant before she sat down at a table in
the Paoli Public Library. Ms. McElwee indicated she looked up from her work
and saw Appellant masturbating, with his genitalia fully exposed. Ms.
McElwee stated she was shocked by Appellant’s conduct and immediately
reported it to a librarian on duty and then to the police.
Officer Jackson broadcast the description of Appellant over the police
radio. Officer Gasparo indicated he was at the train station and had just
spoken to Appellant, who matched the description of the man in the library.
Officer Jackson drove by the station with Ms. McElwee, and Ms. McElwee
positively identified Appellant as the man who exposed himself in the library.
Officer Gasparo testified he spoke to Appellant, and Appellant admitted he
had exposed himself at the library after a woman asked him to do so.
Appellant exposed himself to Ms. McElwee in a public library. The trial
evidence indicates Appellant was looking at Ms. McElwee as he masturbated
and said, “I’ll go, I’ll go” when she reacted with shock. Prior to his arrest,
Appellant admitted he had exposed himself in the public library. The
Commonwealth’s evidence showed Appellant displayed his genitals in a
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public setting to the shock and alarm of another library patron.
Consequently, the evidence was sufficient to sustain Appellant’s conviction
for open lewdness. See Jones, supra.
In his next issue, Appellant complains his sentence for the offense of
indecent exposure is excessive. Specifically, Appellant asserts his sentence
of nine to twenty-three months’ incarceration was “excessive” and
constitutes “too severe a punishment.” As presented, Appellant’s issue
challenges the discretionary aspects of sentencing. See Commonwealth v.
Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is
manifestly excessive challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e 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 that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
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must invoke the appellate court’s jurisdiction by including in the brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). The concise statement must indicate “where the
sentence falls in relation to the sentencing guidelines and what particular
provision of the code it violates.” Commonwealth v. Kiesel, 854 A.2d
530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d
721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920
(2000)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 912-13. A claim that a sentence is
manifestly excessive might raise a substantial question if the appellant’s
Rule 2119(f) statement sufficiently articulates the manner in which the
sentence imposed violates a specific provision of the Sentencing Code or the
norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d
at 627. On the other hand, a bald assertion of sentence excessiveness does
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not raise a substantial question. Commonwealth v. Trippett, 932 A.2d
188 (Pa.Super. 2007). Furthermore, even in the context of Anders, the
appellant waives his challenge to the discretionary aspects of sentencing
when he fails to preserve the issue in a timely post-sentence motion.
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).
Instantly, the court sentenced Appellant to nine to twenty-three
months on June 4, 2015. Between June 4, 2015 and June 10, 2015,
Appellant submitted various pro se motions and filings. None of Appellant’s
pro se filings challenged the discretionary aspects of sentencing. Appellant’s
failure to preserve his sentencing claim in any post-sentence motion
constitutes waiver of the claim on appeal. See id.; Evans, supra.
Moreover, even if Appellant had properly preserved his sentencing
claim, as presented it fails to raise a substantial question. Appellant merely
offers a bald claim of excessiveness without specific reasons for his
contention. See Trippett, supra. Further, the court reasoned as follows
when it imposed Appellant’s sentence:
[I]n sentencing someone such as [Appellant], the court
has to consider the sentencing guidelines, which we all
talked about. And then I have to balance, I have to
consider all the factors in our Sentencing Code and balance
the background, character and circumstances of
[Appellant] with the circumstances of the crime, whether
there is a need to incarcerate him to prevent future
offenses by him. And I have to consider the possibility of
rehabilitation. Furthermore, I have to follow the general
principle that the sentence imposed should call for
confinement that is consistent with the protection of the
public, the gravity of the offense as it relates on the impact
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of the life of the victim, as well as on the community. And
I must consider and address [Appellant’s] rehabilitative
needs.
Having said all that, it’s very easy for me to go in the
aggravated range. It would be very easy for me to go into
the mitigated range. But to me, the very top of the
standard [range] is required because of a variety of
reasons. One, the consistent violations of the law over the
last, you know, nine years or so, all involving the same
behavior. I’m sure there’s a mental health problem that’s
prompting this behavior. But still, [there are] many people
who are diagnosed with schizophrenia and depression and
many other ailments who see their psychiatrist, take their
medicine and live very productive lives. And you know
that.
* * *
You’re not going to leave the court much [choice]. Quite
honestly, the SCI Waymark, that’s a prison that’s very
good with treating psychological and psychiatric disorders.
So I could easily aggravate and sent you upstate so you
could get the mental health treatment that I think you
need. I think you know you need it. We want to stop this
slippage and right the ship and get you back and
productive in the community.
The reason I’m going to give you the sentence I am as well
is because I believe I want the probation department to
verify where you’re going to be living before you’re just
released, like walking out of here tonight as your lawyer is
asking me to do. I want them to verify that. And I want
them to contact the [Veterans Administration] to make
sure you are available for mental health treatment and sex
offender treatment that I’m going to so order at the
request of the Commonwealth, which I think you need.
* * *
I thought the recommendation of the Commonwealth is
sound, especially since [Appellant has] been doing this for
a number of times. He’s just got to stop. … People go to
the library, you know, they expect to be able to have
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peace and quiet, like you, but not to be exposed to such
rude behavior. It’s rude. It’s foul. It’s not right. And you
know better. I considered your service to this country in
fashioning this sentence.
(N.T. Sentencing, 6/4/15, at 185-190). At sentencing, the court considered
all relevant sentencing factors, including Appellant’s other offenses in similar
settings and his military service. The court imposed a standard range
sentence and put its reasons for Appellant’s sentence on the record.
Therefore, even if Appellant had properly preserved his sentencing claim, it
would merit no relief. See Anderson, supra; Sierra, supra. Accordingly,
we affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2016
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