Com. v. Jones, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSEPH NAPOLEON JONES :
:
Appellant : No. 1901 MDA 2019
Appeal from the Judgment of Sentence Entered October 22, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005543-2017
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 17, 2020
Appellant, Joseph Napoleon Jones, appeals from the October 22, 2018
judgment of sentence that imposed an aggregate sentence of two to four
years of imprisonment and ordered Appellant to pay a $150.00 fine after a
jury convicted Appellant of strangulation – applying pressure to the throat or
neck, simple assault, and criminal mischief - tampering with tangible property
of another.1 Appellant’s attorney, Marc J. Semke, Esq. (“Attorney Semke”),
filed an Anders brief2 and a petition to withdraw. We grant counsel’s petition
to withdraw and affirm the judgment of sentence.
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1 18 Pa.C.S.A. §§ 2718(a)(1), 2701(a)(1), and 3304(a)(2), respectively.
2Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009) and Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981).
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The record demonstrates that Appellant and the victim were in a
romantic relationship until a physical altercation between the two parties
occurred on July 29, 2017. As a result of his actions during the altercation,
Appellant was charged with the aforementioned crimes on September 22,
2017. At the conclusion of trial on September 11, 2018, a jury convicted
Appellant of the aforementioned crimes. On October 22, 2018, the trial court
sentenced Appellant to a term of two to four years’ incarceration for his
strangulation conviction and a concurrent term of one to two years’
incarceration for his simple assault conviction. The trial court imposed a
$150.00 fine on Appellant for his criminal mischief conviction. Additionally,
Appellant was ordered to have no contact with the victim. Appellant did not
file a post-sentence motion or appeal his judgment of sentence.
On March 20, 2019, Appellant filed pro se a request for modification of
sentence. The trial court considered Appellant’s pro se request for
modification of sentence as a petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and appointed Kristopher
Accardi, Esq. (“Attorney Accardi”) to represent Appellant.3 On July 8, 2019,
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3 “[A]ll motions filed after a judgment of sentence is final are to be construed
as PCRA petitions.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
2013) (citations omitted). Here, Appellant’s judgment of sentence became
final on November 21, 2018, 30 days from the judgment of sentence and upon
the expiration of the time in which to file a direct appeal. See 42 Pa.C.S.A.
§ 9545(b)(3) (stating, “[f]or purposes of [the PCRA], a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
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counsel filed an amended PCRA petition setting forth a claim for per se
ineffective assistance of trial counsel for failure to file a timely direct appeal
of Appellant’s judgment of sentence. The amended PCRA petition requested
that the trial court reinstate Appellant’s direct appeal rights nunc pro tunc. On
October 21, 2019, the PCRA court granted Appellant’s petition and reinstated
his direct appeal rights nunc pro tunc.4
On November 20, 2019, Appellant filed a notice of appeal. The trial
court subsequently ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied, and the trial court filed its Rule 1925(a) opinion on January 31,
2020.
In an April 15, 2020 per curiam order, this Court dismissed Appellant’s
appeal for counsel’s failure to file a brief. On April 23, 2020, the trial court
removed Attorney Accardi as attorney-of-record5 and appointed Attorney
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or at the expiration of time for seeking the review”); see also Pa.R.Crim.P.
720(3) (stating, “[i]f the defendant does not file a timely post-sentence
motion, the defendant's notice of appeal shall be filed within 30 days of
imposition of sentence”).
4 A review of the PCRA hearing transcript demonstrates that the
Commonwealth agreed that Appellant’s direct appeal rights should be
reinstated nunc pro tunc. N.T., 10/21/19, at 2.
5 Attorney Accardi filed a petition to withdraw as counsel with the trial court
on March 19, 2020, stating that due to his recent acceptance of employment
as solicitor for Adams County, Pennsylvania Children and Youth, he was unable
to continue his representation of Appellant. The petition to withdraw further
stated that there were no pending proceedings scheduled in Appellant’s case.
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Semke to represent Appellant. On May 12, 2020, Attorney Semke filed an
application with this Court to reinstate Appellant’s direct appeal. In a May 13,
2020 per curiam order, this Court reinstated Appellant’s appeal. On July 22,
2020, Attorney Semke filed an Anders brief and a petition to withdraw as
Appellant’s counsel.6
Preliminarily, we must address Attorney Semke’s petition to withdraw
and the accompanying Anders brief, both alleging this appeal is frivolous.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). In order to withdraw pursuant to Anders, “counsel
must file a brief that meets the requirements established by our Supreme
Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).”
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014) (parallel
citation omitted). Specifically, counsel’s Anders brief must comply with the
following requisites:
(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;
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6The Commonwealth did not file a brief in this matter. Rather, on August 21,
2020, the Commonwealth filed a letter in lieu of a brief, stating that it agreed
with Attorney Semke’s assessment that Appellant’s appeal was frivolous.
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(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. (citation omitted).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his [or her] client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa. Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option 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.” Id. “Once
counsel has satisfied the above requirements, it is then this Court’s duty to
conduct its own review of the trial court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en
banc) (citation and internal quotation marks omitted).
Instantly, Attorney Semke satisfied the technical requirements of
Anders and Santiago. In his Anders brief, counsel identified the pertinent
factual and procedural history and made citation to the record. Counsel raises
two claims challenging the sufficiency of the evidence to support Appellant’s
convictions of strangulation and simple assault, respectively, that could
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arguably support an appeal, but ultimately, counsel concludes the appeal is
frivolous. Counsel also attached to his petition a letter to Appellant that fulfills
the notice requirements of Millisock.7 Appellant has not filed a response to
counsel’s letter, the Anders brief, or the petition to withdraw. Accordingly,
we proceed to conduct an independent review of the record to determine
whether the appeal is wholly frivolous.
In his Anders brief, counsel raises the following issues on Appellant’s
behalf:
1. Whether the evidence presented was insufficient to sustain
the conviction for strangulation?
2. Whether the [evidence] presented was insufficient to
sustain the conviction for simple assault?
Anders Brief at 7. These issues raise claims challenging the sufficiency of the
evidence for which our standard of review and scope of review are
well-settled.8
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7Neither the Anders brief nor the petition to withdraw include proof of service
demonstrating that counsel provided the same to Appellant. A review of the
Millisock letter, however, states that counsel enclosed with the letter a copy
of the Anders brief and the petition to withdraw.
8 Counsel concedes that the Rule 1925(b) statement, filed by prior appellate
counsel, failed to state the element or elements of the crime upon which the
evidence was insufficient. Anders Brief at 15-16; see Appellant’s Rule
1925(b) Statement, 12/16/19; see also Commonwealth v. Gibbs, 981 A.2d
274, 281 (Pa. Super. 2009) (holding that an issue challenging the sufficiency
of the evidence is waived when the Rule 1925(b) statement fails to specify the
element or elements upon which the evidence was insufficient), appeal denied,
3 A.3d 670 (Pa. 2010).
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The standard we apply in reviewing the sufficiency of the evidence
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 proof or 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 the evidence actually
received must be considered. Finally, the trier[-]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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).
Section 2718(a)(1) of the Pennsylvania Crimes Code states, “A person
commits the offense of strangulation if the person knowingly or intentionally
impedes the breathing or circulation of the blood of another person by []
applying pressure to the throat or neck.” 18 Pa.C.S.A. § 2718(a)(1). The
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Here, a review of Appellant’s Rule 1925(b) statement demonstrates that prior
appellate counsel failed to set forth the specific element or elements of the
crime upon which Appellant contends the evidence is insufficient, and
therefore, the issues are waived. However, whenever an issue, which is
otherwise waived on appeal, is raised in the context of an Anders brief, we
will consider the issue to determine its merit. Commonwealth v.
Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (holding, that Anders
requires the review of issues otherwise waived on appeal).
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“[i]nfliction of a physical injury to a victim [is] not [] an element of the
offense.” Id. at § 2718(b) (stating, “[t]he lack of physical injury to a victim
shall not be a defense in a prosecution under this section”).
Pursuant to Section 2701(a)(1) of the Crimes Code, a person is guilty
of simple assault if he, or she, “attempts to cause or intentionally, knowingly
or recklessly causes bodily injury to another[.]” Id. at § 2701(a)(1); see also
Commonwealth v. Jenkins, 96 A.3d 1055, 1061 (Pa. Super. 2014) (stating,
“[a] conviction for simple assault requires the Commonwealth to establish that
a defendant caused, or attempted to cause, bodily injury to another person”
(citation omitted)), appeal denied, 104 A.3d 3 (Pa. 2014).
The Crimes Code defines the terms “knowingly,” “intentionally,” and
“recklessly” as follows:
§ 302. General requirements of culpability
...
(b) Kinds of culpability defined.--
(1) A person acts intentionally with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or a
result thereof, it is his conscious object to engage in conduct
of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he
is aware of the existence of such circumstances or he
believes or hopes that they exist.
(2) A person acts knowingly with respect to a material element
of an offense when:
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(i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of
that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will cause
such a result.
(3) A person acts recklessly with respect to a material element
of an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor's conduct
and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable
person would observe in the actor's situation.
18 Pa.C.S.A. § 302(b)(1-3). “[I]ntent can be proven by direct or
circumstantial evidence; it may be inferred from acts or conduct or from the
attendant circumstances.” Commonwealth v. Miller, 172 A.3d 632, 641
(Pa. Super. 2017) (citation and original quotation marks omitted), appeal
denied, 183 A.3d 970 (Pa. 2018). “Bodily injury” is defined as the
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.
In his first issue, Appellant challenges the sufficiency of the evidence to
support his conviction of strangulation. Anders Brief at 15-18. Counsel, upon
a review of the record, found this issue wholly frivolous. Id. at 18. Counsel
asserts that the victim’s testimony that Appellant applied pressure directly to
her neck, the eyewitness’s observation of Appellant choking the victim, the
Commonwealth otolaryngology9 expert’s diagnosis that the victim, after the
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9 Otolaryngology is a medical specialty that focuses, inter alia, on the
treatment of issues pertaining to the ears, nose, and throat.
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incident, suffered a laryngeal contusion in her throat, and the opinion offered
by the Commonwealth’s expert in forensic nursing that the victim was
strangled, individually and collectively, demonstrated the elements necessary
to convict Appellant of strangulation. Id. at 16-18.
In viewing all the evidence admitted at trial in the light most favorable
to the Commonwealth, as verdict winner, the record demonstrates that during
the victim’s domestic altercation with Appellant, Appellant “put both of his
hands around [her] neck and just started to squeeze.” N.T., 9/5/18, at 141.
According to the victim, Appellant’s fingers were on the sides of her neck and
his thumbs were on the front of her neck; one thumb on each side of her
windpipe. Id. at 142. After Appellant placed both of his hands on the victim’s
neck, the victim “started to see a very bright light, and [her hearing] got very
muffled.” Id. at 143. An eyewitness observed Appellant choking the victim
as the victim gasped for air.10 N.T., 9/6/18, at 254.11 The responding police
officer, Sergeant Byers, stated that upon arriving at the scene of the incident
he observed the victim having, inter alia, “redness around her neck.” N.T.,
9/10/18, at 36. Sergeant Byers testified that the injuries he observed were
consistent with the victim’s recollection of events, which included, inter alia,
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10 The eyewitness’s testimony differed from the victim’s account in that the
eyewitness, from his vantage point, observed Appellant choking the victim
with only one hand around the victim’s neck. N.T., 9/5/18, at 254.
11The notes of testimony incorrectly identified the testimony as occurring on
Thursday, January 6, 2018. The record demonstrates that the testimony
occurred on Thursday, September 6, 2018.
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that Appellant strangled her during the course of the altercation. Id. at 38.
Commonwealth Exhibits 1 through 5, admitted at trial, were photographs of
the victim’s neck as it appeared the night of the incident and depicted redness
and injury. See Commonwealth Exhibits 1-5.
The Commonwealth’s medical expert in otolaryngology examined the
victim several days after the incident and concluded, to a reasonable degree
of medical certainty, that the victim suffered a contusion injury to the
laryngeal or “voice-box” region of the neck. N.T., 9/7/18, at 293.12 The
Commonwealth’s medical expert in forensic nursing stated that she reviewed
the victim’s statement to the police, the transcript of the preliminary hearing,
the victim’s medical records, and photographs of the victim’s injuries. Upon
the conclusion of her review, the forensic nurse stated that the evidence
demonstrated that the victim’s injuries were consistent with having been
strangled. Id. at 319.
Based upon the totality of the circumstances and viewing the evidence
in the light most favorable to the Commonwealth, as verdict winner, we find
there was sufficient evidence to enable the jury, as trier-of-fact, to find that
Appellant strangled the victim. The record demonstrates that Appellant
knowingly and intentionally applied pressure to the victim’s throat and neck
and impeded the victim’s breathing to the extent that she was gasping for air,
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12 The notes of testimony incorrectly identified the testimony as occurring on
Friday, January 7, 2018. The record demonstrates that the testimony
occurred on Friday, September 7, 2018.
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experienced a change in vision and loss of hearing, and sustained injuries to
her neck and throat area consistent with strangulation. Therefore, Appellant’s
first issue is without merit.
In his second issue, Appellant challenges the sufficiency of the evidence
to support his conviction of simple assault. Anders Brief at 18-19. Counsel
concludes that this issue is wholly frivolous because, in addition to the injuries
sustained as a result of the strangulation, the victim sustained injuries to her
head and body as a result of the altercation with Appellant. Id.
As discussed supra, the victim sustained bodily injury to her throat and
neck as a result of strangulation. Additionally, the victim sustained multiple
bodily injuries, including injuries to her shoulder, elbow, back, foot, and face,
as a result of Appellant’s shoving, hitting, and dragging of the victim
throughout the kitchen, deck, and yard areas of Appellant’s home. See, e.g.,
N.T., 9/5/18, at 114, 118, 136, and 144; see also Commonwealth Exhibits
6-18 and 22-33.
Based upon the totality of the circumstances and viewing the evidence
in the light most favorable to the Commonwealth, as verdict winner, we find
there was sufficient evidence to enable the jury, as trier-of-fact, to conclude
that Appellant knowingly, intentionally, and recklessly caused bodily injury to
the victim to support a conviction of simply assault. Therefore, Appellant’s
second issue is without merit.
Upon a review of the record, we conclude it supports Attorney Semke’s
assessment that Appellant’s appeal is wholly frivolous. Moreover, our
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independent review of the record reveals no additional, non-frivolous claims.13
Therefore, we grant counsel’s petition to withdraw and affirm the judgment of
sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
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13 In his Anders brief, counsel asserts,
Prior [a]ppellate [c]ounsel filed a [Rule 1925(b)] statement that
included [the issue,] “Whether the guilty verdict[s] for
strangulation and simple assault [were] against the weight of the
evidence[?]” However, it appears that neither prior appellate
counsel nor trial counsel filed a post[-]sentence motion preserving
the issue of weight.
Anders Brief at 7 n.1.
Although this Court “may overlook certain procedural deficiencies in appellate
court filings to ensure that Anders counsel has not overlooked non-frivolous
issues[,]” this Court is not permitted “to address issues that were not properly
preserved in the trial court.” See Commonwealth v. Cox, 231 A.3d 1011,
1016 (Pa. Super. 2020) (holding, “the mere filing of an Anders brief and
petition to withdraw will not serve to resuscitate claims that were already
waived upon the filing of the notice of appeal”), citing Pa.R.A.P. 302(a).
Here, the record demonstrates that trial counsel did not raise an issue that
the verdict was against the weight of the evidence orally, on the record, prior
to sentencing, in a written motion prior to sentencing, or in a post-sentence
motion. See Pa.R.Crim.P. 607(A)(1-3) (stating, “[a] claim that the verdict
was against the weight of the evidence shall be raised with the trial judge in
a motion for a new trial: (1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion”); see also N.T., 9/11/18, at 286 (demonstrating that
trial counsel raised “an oral motion to set aside the verdict due to
insufficiency of the evidence” and not because the verdict was against the
weight of the evidence (emphasis added)). Trial counsel, therefore, failed to
preserve a weight claim, and we are not permitted to review the issue. Cox,
231 A.3d at 1016.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2020
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