Com. v. Coleman-Redd, I. ( 2022 )

J-A24014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISHA COLEMAN-REDD :
:
Appellant : No. 501 EDA 2022
Appeal from the Judgment of Sentence Entered January 13, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009042-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 01, 2022
Appellant, Isha Coleman-Redd, appeals from the judgment of sentence
of an aggregate term of 18 months’ probation, imposed after she was
convicted of one count each of simple assault (18 Pa.C.S. § 2701(a)) and
disarming a law enforcement officer (18 Pa.C.S. § 5104.1(a)). Counsel seeks
permission to withdraw from further representation of Appellant pursuant to
Anders v. California, 386 U.S. 738 (1967). Upon review, we find that
counsel’s Anders brief satisfies the requirements set forth in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Accordingly, we
grant counsel’s petition to withdraw and affirm the judgment of sentence.
The trial court provided the following statement of facts and procedural
history in its Pa.R.A.P. 1925(a) opinion:
Statement of Facts
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On December 18, 2018, Appellant approached a Philadelphia
police officer while he was on patrol outside a bar, punched him
multiple times, [and] then grabbed and pulled on his gun while it
was holstered. Appellant was charged with aggravated assault
[(18 Pa.C.S. § 2702(a))], disarming [a] law enforcement officer
[(18 Pa.C.S. § 5104.1(a))], simple assault [(18 Pa.C.S. §
2701(a))], recklessly endangering another person [(18 Pa.C.S. §
2705)], and disorderly conduct [(18 Pa.C.S. § 5503(a)(1))].
Appellant knowingly and intentionally waived her right to a jury
trial and proceeded to a waiver trial before this court on January
13, 2022. At trial, the Commonwealth presented one witness as
part of their case-in-chief, Philadelphia Police Officer David Wright
III. Appellant presented one character witness, Harold Mann. The
trial evidence and testimony given at trial are summarized below.
a. Philadelphia Police Officer David Wright III
The first and only witness for the Commonwealth was Philadelphia
Police Officer David Wright III, who testified as follows. On
December 8, 2018, at approximately 2:00 a.m., Officer Wright
was on duty in full police uniform. He received a radio call for a
disturbance near 2800 Ridge Avenue in Philadelphia after a bar in
the area was closing for the night and responded to that location
in a marked patrol vehicle. When he arrived, Officer Wright saw
bar patrons exiting the establishment, but no fighting. Officer
Wright parked his patrol vehicle off to the side of Ridge Avenue to
establish a visible police presence in the area and deter violent
incidents between existing bar patrons. Another law enforcement
officer, Philadelphia Police Officer Biyibioku, was also present in
the area.
Officer Wright was standing outside his patrol vehicle with Officer
Biyibioku when Appellant ran up to them. Appellant then grabbed
Officer Wright, pushed him, and punched him at least twice.
Appellant first punched Officer Wright in the chest with a closed
fist, then punched him in the throat with a closed fist. Appellant
subsequently grabbed the handle of Officer Wright’s gun while it
was in Officer Wright’s triple retention holster. Officer Wright felt
his belt move after Appellant grabbed the gun and pulled it up in
the holster. Officer Wright testified that Appellant yanked his
weapon once or twice and that he heard an audible sound each
time she did.
After Appellant grabbed Officer Wright’s gun, he grabbed her hand
to remove it from the weapon and wrestled her to the ground with
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the help of Officer Biyibioku. Officer Wright kept Appellant in a
controlled hold before placing her in custody and calling for a
medic to have her evaluated and taken to a hospital, if necessary.
Officer Wright testified that he had been a police officer for four
years at the time of this incident and that this was the first time
he had ever encountered an individual committing a random act
of violence against police. Officer Wright explained that he called
for a medic because he believed that Appellant’s erratic behavior
may have resulted from being under the influence of
[phencyclidine (“PCP”)]. After Appellant was taken by emergency
medical technicians, she appeared calm and cooperative.
Officer Wright stated that he experienced a little pain after
Appellant punched him in the throat, but that he did not suffer
any injuries and that he did not seek any medical treatment. At
the time of the incident, Officer Wright was wearing an active body
camera. Footage from Officer Wright’s body camera was played
for the court depicting Appellant’s actions on the night of
December 8, 2018. Officer Wright described the footage as dark
and difficult to see clearly, but he was able to identify portions
where Appellant grabbed his gun and flailed her arms as she
punched him.
b. Harold Mann
Appellant’s first and only character witness was Harold Mann, who
testified as follows. Mr. Mann stated that Appellant was a friend
of his who he had known for eight (8) years. He testified that she
had a reputation for being a peaceful person and added that she
was a good person with a good heart. Mr. Mann explained that
he based Appellant’s reputation off his perspective as her friend.
Finally, Mr. Mann confirmed that he had been convicted in 2007
for robbery, a crime of dishonesty.
Procedural History
On January 13, 2022, after hearing all testimony and closing
arguments from the Commonwealth and Appellant’s counsel,
Scott Gessner, Esquire, this court found Appellant guilty of
disarming law enforcement and simple assault. This court also
sentenced Appellant during the same hearing after she waived the
presentence investigation and mental health reports. Based on
Appellant’s prior record score of zero (0), the sentencing
guidelines recommended this court impose restorative sanctions
to nine (9) months of confinement for the disarming law
enforcement conviction, and restorative sanctions to three (3)
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months of confinement for the simple assault conviction.
Appellant’s counsel argued for the imposition of a sentence of
reporting probations. The Commonwealth indicated that based on
other recent contacts with the criminal justice system for similar
types of behavior, Appellant may need mental health treatment.
After considering the sentencing guidelines, the facts and
circumstances of Appellant’s case, and arguments from counsel,
this court sentenced Appellant to eighteen (18) months of
reporting probation on the disarming law enforcement conviction,
as well as a concurrent eighteen (18) months of reporting
probation on the simple assault conviction. This court also
ordered that the probation department evaluate Appellant to
determine if there was any need for drug and alcohol treatment
or mental health counseling. Finally, this court ordered that if
Appellant successfully served the first twelve (12) months of her
reporting probation, she may be placed on non-reporting
probation for the remainder of her sentence.
Trial Court Opinion (“TCO”), 4/21/22, at 1-5 (unnecessary capitalization,
citations to record, and footnotes omitted).
On February 10, 2022, Appellant filed a timely notice of appeal from the
judgment of sentence imposed by the trial court. On February 14, 2022, the
trial court directed Appellant to file a concise statement of errors complained
of on appeal, pursuant to Pa.R.A.P. 1925(b). On March 7, 2022, in lieu of
filing a Rule 1925(b) statement, Appellant’s counsel filed a statement of his
intention to file an Anders brief, pursuant to Rule 1925(c)(4). The trial court
filed its Rule 1925(a) opinion on April 21, 2022.
Appellant now presents the following issues for our review, via counsel’s
Anders brief: (1) Whether the evidence is sufficient to support Appellant’s
convictions?; and (2) Whether Appellant’s sentence is unlawful? See Anders
Brief at 3.
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“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.
1997)).
Court-appointed counsel who seeks to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous must:
(1) petition the court for leave to withdraw stating that,
after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous;
(2) file a brief referring to anything that arguably might
support the appeal but which does not resemble a “no-
merit” letter or amicus curiae brief; and (3) furnish a copy
of the brief to the [appellant] and advise the [appellant] of
his or her right to retain new counsel or raise any additional
points that he or she deems worthy of the court’s attention.
Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
(citation omitted).
Rojas, 874 A.2d at 639. Appellant’s counsel has complied with these
requirements. Counsel petitioned for leave to withdraw and filed a brief
satisfying the requirements of Anders, as discussed, infra. Counsel also
provided a copy of the brief to Appellant and submitted proof that he advised
Appellant of his right to retain new counsel, to proceed pro se, and/or to raise
new points not addressed in the Anders brief.
Our Supreme Court has held, in addition, that counsel must explain the
reasons underlying his assessment of Appellant’s case and his conclusion that
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the claims are frivolous. Thus, counsel’s Anders brief must satisfy the
following criteria before we may consider the merits of the underlying appeal:
[W]e hold that in 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.
Santiago, 978 A.2d at 361.
Upon review of the Anders brief submitted by Appellant’s counsel, we
find it complies with the technical requirements of Santiago. Counsel’s
Anders brief (1) provides a summary of the procedural history and facts of
this case; (2) directs our attention, when applicable, to the portions of the
record that ostensibly support Appellant’s claims of error; (3) concludes that
Appellant’s claims are frivolous; and (4) does so by citation to the record and
appropriate/applicable legal authorities. Thus, we now examine whether
Appellant’s claims are, indeed, frivolous. We also must “conduct a simple
review of the record to ascertain if there appear on its face to be arguably
meritorious issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
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First, we review Appellant’s claim regarding the sufficiency of the
evidence to support her convictions and, in doing so, we are guided by the
following principles:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. McClelland, 204 A.3d 436, 441 (Pa. Super. 2019)
(quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).
Here, Appellant was convicted of simple assault and disarming a law
enforcement officer. A person is guilty of simple assault if he or she “attempts
to cause or intentionally, knowingly[,] or recklessly causes bodily injury to
another[.]” 18 Pa.C.S. § 2701(a)(1). Moreover, we note:
The Commonwealth need not establish that the victim actually
suffered bodily injury; rather, it is sufficient to support a
conviction if the Commonwealth establishes an attempt to inflict
bodily injury. This intent may be shown by circumstances which
reasonably suggest that a defendant intended to cause injury.
To show an “attempt” to inflict bodily injury, it must be shown that
the actor had a specific intent to cause bodily injury. A person
acts intentionally with respect to a material element of an offense
if it is his conscious object to engage in conduct of that nature or
to cause such a result.
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Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super. 2002) (internal
citations, brackets, and quotation marks omitted).
A person commits the offense of disarming a law enforcement officer if
he or she “without lawful authorization, removes or attempts to remove a
firearm, rifle, shotgun or weapon from the person of a law enforcement officer
… when the officer is acting within the scope of the officer’s duties[] and …
has reasonable cause to know or knows that the individual is a law
enforcement officer….” 18 Pa.C.S. § 5104.1(a).
In support of Appellant’s convictions, the trial court opined:
Based on the credible testimony given by Philadelphia Police
Officer David Wright III and the corroborating body camera
footage played at trial, this court determined that Appellant
approached Officer Wright while he was standing beside his
marked police patrol vehicle near a bar on Ridge Avenue in
Philadelphia. Appellant then struck Officer Wright in the chest and
the throat with a closed fist, thereby committing the offense of
simple assault by attempting to cause bodily injury to him.
Appellant next grabbed the handle of Officer Wright’s gun while it
was holstered and pulled it multiple times, attempting to remove
it from Officer Wright’s person. As Officer Wright was on duty in
full uniform outside his marked patrol vehicle at the time,
Appellant had reasonable cause to know that Officer Wright was a
law enforcement officer. The evidence was thus sufficient to
establish that Appellant also committed the offense of disarming
law enforcement.
TCO at 6. Reviewing the record in a light most favorable to the
Commonwealth as the verdict winner, we conclude the evidence sufficiently
supports Appellant’s convictions.
Next, we review Appellant’s claim regarding the legality of her sentence.
We begin by noting that a challenge to the legality of a sentence can never be
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waived and may be raised by this Court sua sponte. Commonwealth v.
Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014) (citation omitted); see
also Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa. Super.
2011) (“A challenge to the legality of a sentence may be raised as a matter of
right, is not subject to waiver, and may be entertained as long as the reviewing
court has jurisdiction.”). It is also well-established that “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.
Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id.“Issues relating to the legality of a sentence are questions of law[.] … Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)
(citations omitted).
The crime of disarming a law enforcement officer is graded as a felony
of the third degree, and simple assault is graded as a misdemeanor of the
second degree. Commonwealth’s Brief at 8 (citing 18 Pa.C.S. §§ 5104.1,
2701). The maximum sentences for these crimes are 7 years’ imprisonment
and 2 years’ imprisonment, respectively. Id. (citing 18 Pa.C.S. §§ 1103-
1104). In this instance,
[u]pon finding Appellant guilty, [the trial c]ourt sentenced
Appellant to an aggregate term of eighteen (18) months of
reporting probation, with the possibility for … Appellant to be
placed on non-reporting probation if she successfully served the
first twelve (12) months of her sentence. [The trial c]ourt also
ordered that the probation department evaluate Appellant to
determine if there was any need for drug and alcohol treatment
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or mental health counseling. Appellant’s sentence of restorative
sanctions was squarely within the sentencing guidelines based on
Appellant’s prior record score of zero (0). Additionally, it was
consistent with the gravity of Appellant’s offenses and her
rehabilitative needs.
TCO at 6-7. As Appellant’s concurrent sentences are standard-range
sentences that are well within the statutory maximums for each charge, we
conclude that Appellant’s sentence is not illegal.
Finally, our review of the record reveals no other potential, non-frivolous
issues that Appellant could raise on appeal. As such, we agree with counsel
that Appellant’s appeal in this case is wholly frivolous. Accordingly, we grant
counsel’s motion to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2022
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