Com. v. Bennett, B. , 124 A.3d 327 ( 2015 )

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2015 Pa. Super. 198
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRICE E. BENNETT, JR.
Appellant No. 1811 MDA 2014
Appeal from the Judgment of Sentence September 26, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007472-2013
*************************************************************
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRICE E. BENNETT, JR.
Appellant No. 1814 MDA 2014
Appeal from the Judgment of Sentence September 26, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007517-2013
BEFORE: BOWES, J., OTT, J., and STABILE, J.
OPINION BY OTT, J.: FILED SEPTEMBER 17, 2015
In this consolidated appeal, Brice E. Bennett, Jr., appeals from the
judgment of sentence imposed on September 26, 2014, in the Court of
Common Pleas of York County, following his conviction by a jury on charges
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of defiant trespass and possession of drug paraphernalia,1 and by the judge
on the summary offense of public drunkenness. Bennett received an
aggregate sentence of 12 months and 30 days to 24 months’ incarceration,
to be followed by 12 months’ probation.2 In this timely appeal, Bennett’s
counsel has filed an Anders3 brief, asserting all appellate issues are
frivolous, accompanied by a motion to withdraw as counsel. Bennett has
responded by filing, in this Court, a motion for relief of judgment, a petition
for writ of habeas corpus and an amendment to the petition for writ of
habeas corpus. After a thorough review of the submissions by the parties,
the certified record and relevant law, we affirm the judgment of sentence,
deny Bennett’s pro se filings, and grant counsel’s motion to withdraw.
The underlying facts of this matter are simply stated. Bennett had a
history of panhandling at Li’s Kitchen, located at 287 West Market Street,
York, Pennsylvania. Specifically, he approached patrons while they were in
the small parking lot adjacent to the restaurant. A security guard hired by
Li’s repeatedly told Bennett he was not allowed on the property. On two
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1
18 Pa.C.S. §§ 3503(b)(1)(i), 5505, and 35 P.S. § 780-113(a)(32),
respectively.
2
The 30-day sentence was imposed on the conviction for the summary
offense of public intoxication. Accordingly, it is a straight 30-day sentence.
3
Anders v. California, 386 U.S. 738 (1967). See also, Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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occasions, August 8 and 23, 2013, Bennett, was arrested while in the
parking lot. On both occasions he exhibited indicia of intoxication and on
August 8, 2013, after being taken into custody, police officers found a crack
pipe in Bennett’s possession. Bennett testified he did not trespass; rather,
at all times he was on the public sidewalk. He argued that Li’s Kitchen had a
surveillance camera recording the activities in the parking lot, but no tape
was produced to confirm his alleged trespass. The police officers
acknowledged the existence of the camera, but testified because they had
witnessed Bennett in the parking lot, they had no need to obtain the video
tape. A jury determined Bennett was guilty of two counts of defiant trespass
and one count of possession of drug paraphernalia, and the trial judge found
Bennet guilty on the summary counts of public drunkenness.
Before we begin our substantive analysis, we must first review defense
counsel’s Anders brief and motion to withdraw. See Commonwealth
Goodwin, 928 A.2d 287 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is
frivolous; and
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(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. Counsel also must provide a copy
of the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court’s attention in addition to the points raised by counsel in the
Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 889-880 (Pa. Super. 2014).
Here, counsel has fulfilled all of the dictates of Anders/Santiago,
although he incorrectly informed Bennett that he was entitled to proceed pro
se or with private counsel “if the Superior Court permits me to withdraw”.
See Letter to Bennett, 3/4/2015, at 1. However, this error was corrected by
a sua sponte notice from our Court dated March 10, 2015, informing Bennett
that he was entitled to proceed pro se or obtain private counsel in response
to counsel’s Anders brief; he was not required to wait until counsel’s motion
to withdraw had been ruled granted. Because all technical requirements for
Anders/Santiago have been complied with, proceed to the issue identified
in the Anders brief.
The sole issue raised in the Anders brief is a challenge to the
sufficiency of the evidence. Counsel has correctly noted that there was an
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abundance of evidence to support all convictions. A person commits the
offense of defiant trespass,
[i]f knowing that he is not licensed or privileged to do so, he
enters or remains in any place as to which notice against
trespass has been given by actual communication to the actor.
18 Pa.C.S. § 3503(b)(1)(i).
The evidence presented at trial demonstrated Bennett had been
informed multiple times he was not to be on Li’s Kitchen’s property. In spite
of that instruction, he was apprehended twice in Li’s parking lot.
The offense of possession of drug paraphernalia prohibits:
The use of, or possession with intent to use, drug paraphernalia
for the purpose of planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing, repacking,
storing, containing, concealing, injecting, ingesting, inhaling or
otherwise introducing into the human body a controlled
substance in violation of this act.
35 P.S. § 780-113(a)(32).
The evidence produced at trial showed conclusively that Bennett
possessed a glass pipe, commonly used for smoking crack cocaine, including
a piece of Brillo-type steel wool, which is used as both a filter and a holder of
the crack cocaine being smoked. Both the pipe and steel wool had burnt
residue, indicating the pipe had been used. Accordingly, there was sufficient
evidence to support Bennett’s conviction on this charge.
Finally, the offense of public drunkenness requires proof that a person,
[a]ppears in any public place manifestly under the influence of
alcohol or a controlled substance … to the degree that he may
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endanger himself or other persons or property, or annoys
persons in his vicinity
18 Pa.C.S. § 5505.
Police testimony demonstrated Bennett showed indicia of intoxication,
including stumbling and slurred speech. In finding Bennett guilty, the
Honorable Thomas H. Kelley, VI, stated:
I can say that based upon his behavior, which resulted in the
two charges of defiant trespass, I can make the inference that
he was a danger to himself putting himself at risk of being
arrested or to others.
N.T. Trial, 8/7/2014, at 139.
The evidence presented at trial also showed that Bennett was flailing
his arms about, shouting at and arguing with both the security guard and
the police, and was, on one occasion, jumping in and out of patrons’ cars.
Such activities may be properly classified as both annoying and dangerous.
Therefore, there was sufficient evidence to support the summary convictions
for public drunkenness.
We now examine Bennett’s pro se allegations. In his motion for relief
from judgment filed with this court, he argues: (1) the criminal complaints
filed against him were without seal and therefore not official and so deprived
him of due process, and (2) that the trial court erred in failing to charge the
jury on the best evidence rule regarding the Commonwealth’s failure to
produce the surveillance video. These claims are unavailing.
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Bennett is correct that the criminal complaint regarding the August 8,
2013 charges has no seal.4 However, Pa.R.Crim.P. 109 mandates:
A defendant shall not be discharged nor shall a case be
dismissed because of a defect in the form or content of a
complaint, citation, summons, or warrant, or a defect in the
procedures of these rules, unless the defendant raises the defect
before the conclusion of the trial in a summary case or before
the conclusion of the preliminary hearing in a court case, and the
defect is prejudicial to the rights of the defendant.
Pa.R.Crim.P. 109.
The defect was not raised before the conclusion of either the
preliminary hearing or trial, and so the issue has been waived. See
Commonwealth v. Manni, 302 A.2d 374 (Pa. Super. 1973) (failure to
object to defect in complaint waives the issue). Moreover, other than a bald
allegation of a violation of due process, Bennett has not even attempted to
demonstrate how the lack of a seal on the criminal complaint caused him
prejudice.5
Next, he claims the trial judge erred in failing to charge the jury
regarding the best evidence rule. Generally speaking, the best evidence
rule is designed to certify the contents of a writing, recording or photograph
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4
The criminal complaint regarding the August 23, 2013 charges does have
the Seal of Magisterial District Judge, York County, District 19-3-05.
5
We note that Bennett was informed of the charges in a timely manner and
was able to put forward a defense.
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by requiring the original of any of the above be presented as evidence. 6
Bennett misunderstands the import of the best evidence rule. As noted
previously, the parking lot of Li’s Kitchen was under video surveillance. The
police officers testified they personally witnessed Bennett in the parking lot
of Li’s Kitchen and not standing on the public sidewalk. Bennett argued the
eyewitness testimony was not as good as the video surveillance would have
been. Therefore, the “best evidence” was not produced by the
Commonwealth.7 The best evidence rule does not address the
Commonwealth’s presentation of video versus eyewitness testimony.8
Accordingly, the trial court did not err in failing to charge the jury on the
best evidence rule.9
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6
See Pa.R.E. 1002, “An original writing, recording or photograph is required
in order to prove is content unless these rules, other rules prescribed by the
Supreme Court, or a statute provide.” See also Pa.R.E. 1003, which allows a
duplicate to be admitted as evidence unless a genuine question regarding
the original’s authenticity has been raised.
7
The jury knew that video surveillance was in operation at Li’s Kitchen and
that no video evidence was presented at trial. Bennett’s counsel argued in
closing that the failure to present video evidence weighed against the
Commonwealth.
8
Had the video surveillance been introduced into evidence, the best
evidence rule would have applied to ensure the reliability of the video.
9
Bennett also raised a claim of ineffective assistance of counsel. Such
claims are not cognizable in a direct appeal; they are properly raised in a
Post Conviction Relief Act petition. See Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002) (ineffective assistance of counsel claims to be raised via
PCRA).
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Bennett has also filed a petition for writ of habeas corpus and
amendment thereto, claiming, initially, that counsel was ineffective for
failing to realize and inform the court that he was medically “unable to be
cognizant of his guaranteed constitutional rights.” Although the remainder
of the petition and amendment are not readily understandable, he also
appears to argue again that he was unjustly convicted because of the failure
to produce the surveillance video.10 Because, as best as we can discern,
these claims sound in ineffective assistance of counsel and the fact that
habeas corpus has been subsumed by the Post Conviction Relief Act (PCRA),
42 Pa.C.S. § 9541 et seq., we dismiss these claims without prejudice to raise
them in a timely PCRA petition.11
Lastly, we address the extent of this Court’s review in the present
case. Most recently, in Commonwealth v. Flowers, 113 A.3d 1246 (Pa.
Super. 2015), a panel of our Court explicitly determined it is our
responsibility to review the entire record to see if there exists any additional,
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10
There are other claims that simply make no sense, such as a claim of
illegal sentence for retail theft. Bennett was not charged with retail theft
and was not sentenced for retail theft. He also claims the evidence against
him should have been suppressed because the police car approached him
with the high beams on and the siren was not activated.
11
Specifically, see Commonwealth v. Byers, 467 A.2d 9, 11 (Pa. Super.
1983) (habeas corpus subsumed by PCRA) and 42 Pa.C.S. § 9542 (same).
We wish to make clear that we are not in any way suggesting Bennett file a
PCRA petition or that any of the claims are in any way meritorious. We
simply note that, as raised, the claims are not currently cognizable.
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non-frivolous issues that might have been overlooked by counsel. Id. at
1250. Flowers relies on the en banc decision in Commonwealth v.
Goodwin, 928 A.2d 287 (Pa. Super. 2007 (en banc), to support this
approach. Flowers, and the myriad of cases cited in the lead and
dissenting opinions, address a “pure” Anders situation in which the only
brief under consideration is the one filed by counsel.
Here, Bennett availed himself of his right to file a pro se response
raising issues he believes were both meritorious and overlooked by counsel.
See Commonwealth v. Flowers, 113 A.3d at 1248-49 (after Anders brief
has been filed, appellant has the right to proceed pro se or hire private
counsel). By filing a pro se response, as in this case, or hiring private
counsel, the appellant has essentially filed an advocate’s brief. It is well-
settled that when an advocate’s brief has been filed on behalf of the
appellant, our Court is limited to examining only those issues raised and
developed in the brief. We do not act as, and are forbidden from acting as,
appellant’s counsel. Accordingly, our independent review is logically limited
in the situation presented herein. If we conduct an independent review of
the entire record, and conclude that there are no non-frivolous issues to be
found anywhere therein, we have rendered the appellant’s right to proceed
pro se or to hire private counsel, meaningless. There would be no point in
allowing a pro se or counseled filing if we had already determined any issue
raised therein was frivolous.
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Therefore, when an appellant, either acting pro se or through private
counsel, files a response to the Anders brief, our independent review is
limited to those issues raised in the Anders brief. We then review the
subsequent pro se or counseled filing as we do any advocate’s brief. Such
approach is supported by dicta in Commonwealth v. Baney, 860 A.2d 127
(Pa. Super. 2004),12 which stated:
1. The Superior Court should initially consider only the Anders
brief to determine whether the issues are in fact wholly frivolous.
2. If the Court determines that the issues are not wholly
frivolous, it should grant relief accordingly.
3. If it finds the issues in the Anders brief to be wholly frivolous,
the Court should determine whether the defendant has been
given a reasonable amount of time to either file a pro se brief or
obtain new counsel. See Anders, 386 U.S. at 744, 87 S.C.t
1396 (“A copy of counsel's brief should be furnished the indigent
and time allowed him to raise any points that he chooses”).
4. When a reasonable amount of time has passed and no pro se
or counseled brief has been filed, the Court should dismiss the
appeal as wholly frivolous pursuant to its initial determination
and affirm the decision of the trial court.
5. When a pro se or counseled brief has been filed within a
reasonable amount of time, however, the Court should then
consider the merits of the issues contained therein and rule upon
them accordingly.
Commonwealth v. Baney, 860 A.2d 127, 129 (Pa. Super. 2004).
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12
The issue in Baney was whether the pro se filing in response to the
Anders brief should be considered or if it represented an improper hybrid
filing.
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We have followed the procedure described above in reviewing both the
Anders brief and Bennett’s pro se filings. In light of the foregoing, based
upon our review, we find the claim raised by counsel in the Anders brief to
be frivolous. Additionally, all claims raised by Bennett in his pro se filings,
excepting those premature ineffective assistance of counsel claims, are also
frivolous. Accordingly, Bennett is not entitled to relief.
Judgment of sentence affirmed. Motion to withdraw as counsel
granted. Motion for relief from judgment is denied. Petition for writ of
habeas corpus and amendment thereto are denied. Any claims of ineffective
assistance of counsel raised therein are denied without prejudice to be
raised in a timely PCRA petition.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
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