Com. v. Birch-Grey, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee :
:
v. :
:
TITO REINALDO WESLEY BIRCH- :
GREY :
:
Appellant : No. 899 EDA 2020
Appeal from the Judgment of Sentence Entered February 25, 2020
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001420-2019
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED: DECEMBER 29, 2020
Appellant, Tito Reinaldo Wesley Birch-Grey, appeals from the judgment
of sentence entered in the Lehigh County Court of Common Pleas, following
his guilty plea to one count each of aggravated assault and possession of a
firearm prohibited.1 We affirm and grant counsel’s petition to withdraw.
During an altercation over a stolen stereo on March 1, 2019, Appellant
shot one person in the foot and threatened to shoot another individual. The
Commonwealth charged Appellant with two counts each of aggravated assault
and simple assault, as well as one count each of receiving stolen property,
possession of a firearm prohibited, firearms not to be carried without a license,
and terroristic threats. On January 31, 2020, Appellant entered a negotiated
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1 18 Pa. C.S.A. §§ 2702(a)(4) and 6105(a)(1), respectively.
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guilty plea to one count of aggravated assault and one count of possession of
a firearm prohibited. In exchange, the Commonwealth agreed to imposition
of concurrent sentences. On February 25, 2020, with the benefit of a
presentence investigation (“PSI”) report, the court sentenced Appellant to 6
to 12 years’ imprisonment for possession of a firearm prohibited, and a
concurrent term of 2 to 4 years’ incarceration for aggravated assault.
On February 28, 2020, Appellant filed a timely post-sentence motion to
modify his sentence, which the court denied on March 4, 2020. Appellant filed
a timely notice of appeal on March 6, 2020. On the same day, counsel filed a
“Praecipe for Entry/Withdraw of Appearance,” requesting the court to permit
counsel’s withdrawal. On March 9, 2020, the court ordered Appellant to file a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(b). Counsel did not file any Rule 1925 statement. Instead, on
September 1, 2020, counsel filed an application to withdraw and a brief in this
Court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967).2
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2 Generally, counsel’s failure to file a court-ordered Rule 1925 statement
constitutes per se ineffectiveness. Commonwealth v. Burton, 973 A.2d
428, 431-32 (Pa.Super. 2009) (en banc). When waiver occurs due to
counsel’s failure to file a court-ordered concise statement, then remand is
proper. Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa.Super.
2009). However, this Court may review an appeal instead of remanding for a
concise statement where the trial court addressed the issues an appellant
raises on appeal in its opinion. Burton, supra. Here, the trial court opinion
addresses Appellant’s discretionary aspects of sentencing claim, which is the
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As a preliminary matter, counsel seeks to withdraw his 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). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d
266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
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only issue (other than counsel’s request to withdraw) raised in the Anders
brief. Therefore, we will review the sentencing issue raised in the Anders
brief, despite counsel’s failure to file a court-ordered Rule 1925 statement.
See id.
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Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] 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 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, Appellant’s counsel has filed a petition to withdraw. The
petition states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. In the Anders brief, counsel provides a
summary of the facts and procedural history of the case. Counsel’s argument
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refers to relevant law that might arguably support Appellant’s claim on appeal.
Counsel further states the reasons for his conclusion that the appeal is wholly
frivolous. Therefore, counsel has substantially complied with the technical
requirements of Anders and Santiago.
Appellant has not responded to the Anders brief pro se or with newly-
retained private counsel. Counsel raises the following issues on Appellant’s
behalf:
Whether the [trial] court abused its discretion by imposing
a sentence which was manifestly unreasonable based upon
the factors reviewed by the court and that the court failed
to properly and fully consider all those factors?
May appointed counsel be permitted to withdraw after a
conscientious review of the issues and the facts pursuant to
the Anders case?
(Anders Brief at 7).
Appellant argues the court’s 6-to-12-year aggregate sentence is
manifestly excessive where the court did not adequately consider certain
mitigating factors, such as Appellant’s need for treatment, his remorse, his
family life, and his acceptance of responsibility, in crafting the sentence.
Instead, Appellant contends the court focused solely on the seriousness of the
offense. As presented, Appellant challenges the discretionary aspects of his
sentence. See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,
668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195-5-
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(1996) (explaining claim that court did not consider mitigating factors
challenges discretionary aspects of sentencing).3
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
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3 Although “a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his...sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005)
(emphasis in original). A plea bargain that includes a sentence
recommendation, but no agreement for a stated term, however, does not
necessarily preclude a challenge to the discretionary aspects of a sentence.
Commonwealth v. Dalberto, 648 A.2d 16 (Pa.Super. 1994), appeal denied,
540 Pa. 594, 655 A.2d 983 (1995), cert. denied, 516 U.S. 818, 116 S.Ct. 75,
133 L.Ed.2d 34 (1995). Here, as the Commonwealth explained at sentencing:
“There was a binding agreement that [the] counts would run concurrently. All
other sentencing provisions were to be open to the [c]ourt.” (N.T. Sentencing
Hearing, 2/25/20, at 3). Thus, Appellant’s guilty plea was negotiated as to
running the sentences concurrent to one another, but the plea did not include
an agreement for a “stated term” of the sentence. Thus, Appellant is able to
challenge the discretionary aspects of his sentence in this appeal. See id.-6-
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denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Under Pa.R.A.P. 2119(f), an appellant must invoke the appellate court’s
jurisdiction by including in his brief a separate concise statement
demonstrating 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 requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in
original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (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 913. This Court does not accept bald assertions
of sentencing errors as substantial questions. Commonwealth v. Malovich,
903 A.2d 1247 (Pa.Super. 2006). Rather, an appellant must articulate the
bases for his allegations that the sentencing court’s actions violated the
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sentencing code. Id. A claim of excessiveness can raise a substantial
question as to the appropriateness of a sentence under the Sentencing Code,
even if the sentence is within the statutory limits. Mouzon, supra at 430,
812 A.2d at 624. Bald allegations of excessiveness, however, do not raise a
substantial question to warrant appellate review. Id. at 435, 812 A.2d at 627.
Rather, there is a substantial question “only where the appellant’s Rule
2119(f) statement sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process….” Id.“An allegation that a sentencing court failed to consider or did not
adequately consider certain factors does not raise a substantial question that
the sentence was inappropriate.” Cruz-Centeno, supra at 545 (internal
quotation marks omitted). For example, an allegation that the sentencing
court ignored or did not accord proper weight to an appellant’s rehabilitative
needs does not raise a substantial question. Commonwealth v. Berry, 785
A.2d 994 (Pa.Super. 2001). On the other hand, “an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.” Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal denied, 629 Pa. 636,
105 A.3d 736 (2014). See also Commonwealth v. Trimble, 615 A.2d 48(Pa.Super. 1992) (holding defendant’s claim that court failed to consider
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factors set forth under Section 9721(b) and focused solely on seriousness of
defendant’s offense raised substantial question).
Here, Appellant timely filed a notice of appeal, and preserved his
sentencing issue in a timely filed post-sentence motion and in a Rule 2119(f)
statement. See Evans, supra. As presented, Appellant’s claim concerning
an excessive sentence in combination with the court’s failure to consider
certain mitigating factors arguably raises a substantial question. See Raven,
supra.
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005).
Pursuant to Section 9721(b), “the court shall 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 to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as
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part of the record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.” Id.
Nevertheless, “[a] sentencing court need not undertake a lengthy discourse
for its reasons for imposing a sentence or specifically reference the statute in
question….” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.
2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record
as a whole must reflect the sentencing court’s consideration of the facts of the
case and the defendant’s character. Id. “In particular, the court should refer
to the defendant’s prior criminal record, his age, personal characteristics and
his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert
denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).
Instantly, the court imposed sentences that were in the standard range
of the guidelines. Additionally, the court had the benefit of a PSI report at
sentencing. Therefore, we can presume the court considered the relevant
factors when sentencing Appellant. See Tirado, supra (stating where
sentencing court had benefit of PSI report, law presumes court was aware of
and weighed relevant information regarding defendant’s character and
mitigating factors). Moreover, the court explained at sentencing that it
considered Appellant’s prior record, the circumstances of the altercation, and
the impact Appellant’s actions had on the victims when it crafted Appellant’s
sentence. The court also considered character letters from Appellant’s wife
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and daughter, as well as testimony from Appellant and his wife, which included
information about Appellant’s family life, employment history, acceptance of
responsibility for his actions, and expression of remorse. Thus, the court
properly considered the appropriate factors in rendering Appellant sentence,
and Appellant’s sentencing challenge fails. See Hyland, supra. Following an
independent review of the record, we agree with counsel that the appeal is
wholly frivolous. See Dempster, supra. Accordingly, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/20
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