Com. v. Schanck, E. ( 2018 )

J-S81041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ERRICK SCHANCK,
Appellant No. 819 MDA 2017
Appeal from the Judgment of Sentence April 18, 2017
in the Court of Common Pleas of Luzerne County
Civil Division at No.: 13279-2016
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 08, 2018
Appellant, Errick Schanck, appeals from the judgment of sentence
imposed after his conviction of indirect criminal contempt for his violation of a
protection from abuse (PFA) order. Trial counsel has petitioned to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence
and grant counsel’s petition.
We take the following facts and procedural background from our
independent review of the certified record. On December 28, 2016,
Complainant, Nikki Borrero, filed a petition for a PFA order against Appellant,
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* Retired Senior Judge assigned to the Superior Court.
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her ex-husband and the father of her children. The court filed a temporary
order that day and, on January 5, 2017, a final PFA order was filed against
Appellant, for a period of one year. Pursuant to the final order, Appellant was
prohibited from having any contact with Complainant. (See Final PFA Order,
1/05/17, at 2 ¶¶ 3-4).
One week later, on January 12, 2017, Appellant violated the PFA order
by appearing at Complainant’s residence. The court issued a bench warrant
for Appellant’s arrest, and held a hearing thereafter on March 28, 2017. As a
result of testimony it heard, the court convicted Appellant of indirect criminal
contempt, sentenced him to six months’ incarceration, and extended the PFA
order to a period of three years. Appellant’s post-sentence motion was denied
and he timely appealed.1 On October 20, 2017, counsel filed a petition for
leave to withdraw and an Anders brief on the basis that the appeal is
frivolous. Appellant has not responded.
Before reaching Appellant’s issues, we must consider counsel’s request
to withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
The standard of review for an Anders brief is well-settled.
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1On June 21, 2017, counsel filed a timely statement of intent to file an Anders
brief in lieu of filing a statement of errors complained of on appeal. See
Pa.R.A.P. 1925(c)(4). The court filed an opinion on September 7, 2017. See
Pa.R.A.P. 1925(a).
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Court-appointed counsel who seek 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
defendant and advise the defendant 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.
Id. (citations and quotation marks omitted). Further, our Supreme Court
ruled in Santiago, supra, that Anders briefs must contain “a discussion of
counsel’s reasons for believing that the client’s appeal is frivolous[.]”
Santiago, supra at 360.
Instantly, counsel’s Anders brief and application to withdraw
substantially comply with the applicable technical requirements and reveal
that she has made “a conscientious examination of the record [and]
determined that the appeal would be frivolous[.]” Lilley, supra at 997(citation omitted). Additionally, the record establishes that counsel served
Appellant with a copy of the Anders brief and application to withdraw, and a
letter of notice, which advised Appellant of his right to retain new counsel or
to proceed pro se and raise additional issues to this Court. See id.; (see also
Petition for Leave to Withdraw as Counsel, 10/20/17, Exhibit A, at 1). Further,
the application and brief cite “to anything that arguably might support the
appeal[.]” Lilley, supra at 997 (citation omitted); (see also Anders Brief,
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at 4-7). As noted by our Supreme Court in Santiago, the fact that some of
counsel’s statements arguably support the frivolity of the appeal does not
violate the requirements of Anders. See Santiago, supra at 360-61.
Having concluded that counsel’s petition and brief substantially comply
with the technical Anders requirements, we must “conduct [our] own review
of the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation
omitted).
The Anders brief raises two questions for our review:
[1.] Whether the trial court abused its discretion in finding
[Appellant] guilty of indirect criminal contempt where the
Commonwealth failed to prove that all four (4) elements of
indirect criminal contempt were perpetrated by [Appellant] in
violation of the PFA[?]
[2.] Whether the verdict was against the weight of the evidence
presented[?]
(Anders Brief, at 2).
Appellant’s first issue challenges the sufficiency of the evidence to
support his conviction. (See id.). Our standard of review of this matter is
well-settled.
The standard of review for a challenge to the sufficiency of
the evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
find that each element of the crimes charged is established beyond
a reasonable doubt. The Commonwealth may sustain its burden
of proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.
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The facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubt raised as to the accused’s guilt is to be resolved by the
fact-finder. As an appellate court, we do not assess credibility nor
do we assign weight to any of the testimony of record. Therefore,
we will not disturb the verdict 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.
Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)
(citation omitted).
A charge of indirect criminal contempt consists of a claim
that a violation of an Order or Decree of court occurred outside
the presence of the court. Where a PFA order is involved, an
indirect criminal contempt charge is designed to seek punishment
for violation of the protective order. As with those accused of any
crime, one charged with indirect criminal contempt is to be
provided the safeguards which statute and criminal procedures
afford. To establish indirect criminal contempt, the
Commonwealth must prove: 1) the Order was sufficiently definite,
clear, and specific to the contemnor as to leave no doubt of the
conduct prohibited; 2) the contemnor had notice of the Order; (3)
the act constituting the violation must have been volitional; and
4) the contemnor must have acted with wrongful intent.
Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007)
(citations and quotation marks omitted).
Instantly, Appellant admitted he was aware of the PFA order and that it
was clear that he was not to have any contact with Complainant. (See N.T.
Hearing, 3/28/17, at 13). However, the court found that Complainant credibly
testified that Appellant voluntarily knocked on her door on the evening of
January 12, 2017, and requested that she let him inside. (See id. at 4, 18).
Finally, Appellant’s wrongful intent can be imputed from the fact that he knew
with “substantial certainty” that, by approaching the front door of her home,
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Appellant would come into contact with Complainant. Brumbaugh, supra at
111.
Accordingly, we conclude that the trial court properly found that the
Commonwealth produced sufficient evidence to establish each element of
indirect criminal contempt. See Wanner, supra at 717-18. Hence,
Appellant’s first issue is frivolous.
In his second issue, Appellant challenges the weight of the evidence to
support his conviction. (See Anders Brief, at 2). This issue also is frivolous.
The essence of appellate review for a weight claim appears
to lie in ensuring that the trial court’s decision has record support.
Where the record adequately supports the trial court, the trial
court has acted within the limits of its discretion.
* * *
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court. Appellate review of a weight
claim is a review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the
evidence.
Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017),
appeal denied, 171 A.3d 1286 (Pa. 2017) (citation omitted). “To successfully
challenge the weight of the evidence, a defendant must prove the evidence is
so tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Id. (citation and internal quotation marks omitted).
Instantly, Appellant testified that he did not violate the PFA order by
going to Complainant’s home. (See N.T. Hearing, at 13). However, the trial
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court found that Complainant testified credibly to the contrary. Because this
finding has record support, we conclude that the court properly exercised its
discretion in deciding that the verdict was not against the weight of the
evidence or shocking to the judicial conscience. See Windslowe, supra at
712.
Therefore, based on our own independent review of the record, we
conclude that Appellant’s claims are “wholly frivolous” and do not merit relief.
Lilley, supra at 998 (citation omitted). Additionally, we find no other non-
frivolous issues that would merit relief.
Judgment of sentence affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2018
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