Com. v. Quail, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JASON QUAIL :
:
Appellant : No. 1874 MDA 2019
Appeal from the Judgment of Sentence Entered July 30, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001204-2018
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 4, 2021
Jason Quail appeals the judgment of sentence entered following his
convictions for Aggravated Indecent Assault-Forceful Compulsion, Indecent
Assault-Forceful Compulsion, and Simple Assault.1 Counsel has filed an
Anders2 brief and a petition to withdraw as counsel. We affirm the judgment
of sentence and grant counsel’s petition.
The trial court aptly summarized the facts of this case as follows:
The victim, -- testified that while pregnant, she awoke at
midnight on June 3, 2018, to her ex-boyfriend, [Quail],
angry and screaming. [The victim] testified: “He grabbed
me behind my neck and threw me onto the bed by my neck
and I was fighting him and trying to get him off of me and
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3125(a)(2), 3126(a)(2), and 2701(a)(3), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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he punched me in the eye and then as he was choking me
he shoved his hand and started shoving it up my vagina.”
She graphically detailed that during the assault, [Quail]
shoved his hand inside her vagina on approximately five
occasions. She indicated that [Quail] thrust four fingers
when inserting his hand into her vagina. She testified: “up
to his wrist,” went inside her vagina, causing her significant
pain and causing her to urinate herself. She believed
[Quail’s] rough actions potentially caused a miscarriage.
After the assault, [the victim] responded to Geisinger
Medical Center where Officer Richard Bachman interviewed
[the victim] and photographed her physical injuries. [The
victim] explained each photograph to the jury, including the
photographs of popped blood vessels in her neck, eye
bruising, and marks on her inner thighs as a result of the
strangulation and assault. Officer Bachman testified that he
requested [a] female officer to photograph [the victim]
because some bruises were located on [the victim]’s inner
thighs. Office Bachman corroborated that the photographs
fairly and accurately depicted [the victim]’s injuries on June
4, 2018. [The victim] also reported that due to the trauma
of the strangulation, she suffered laryngitis for
approximately three (3) days.
Relative to the injuries that [the victim] suffered, the
Commonwealth presented witness Carena Kelly, a
physician’s assistant at Geisinger Medical Center, who
treated [the victim] on June 4, 2018. Ms. Kelly corroborated
bruising and injuries to the victim’s inner thighs, neck, and
forearm. She performed an external and internal vaginal
exam of [the victim]. The examinations revealed no
tenderness or injury to the labia or around the vagina.
Lastly, Ms. Kelly explained that a lack of vaginal injury does
not preclude the occurrence of a sexual assault.
1925(a) Op., filed 5/5/2020, at 2-3 (citation to record omitted).
The jury returned guilty verdicts as referenced above and the trial court
sentenced Quail to an aggregate term of six to 12 years’ incarceration. Quail
filed a post-sentence motion claiming that his sentence was “excessive and
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contrary to law.” Motion for Reconsideration of Sentence, filed 8/5/19. The
trial court denied the motion and Quail filed a timely pro se notice of appeal.
In this Court, counsel filed an Anders brief and a petition to withdraw
as counsel. Quail filed a response to counsel’s Anders brief claiming his
innocence and challenging the credibility of the testimony of the
Commonwealth’s witnesses, including the victim. See Pro Se Response to
Anders Brief. Additionally, the trial court filed an opinion concluding that
Quail’s appellate issue was waived, and even if it was not, it was meritless.
See 1925(a) Op. at 4-8.
As counsel has filed an Anders brief, we must first address whether
counsel has satisfied the procedural requirements under Anders. See
Commonwealth v. Cox, 231 A.3d 1011, 1014 (Pa.Super. 2020). An Anders
brief is filed “when counsel believes an appeal is frivolous and wishes to
withdraw from representation[.]” Id. In such a case, counsel must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel
has determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the
appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise
him of his right to retain new counsel, proceed pro se, or
raise any additional points he deems worthy of this Court’s
attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006)
(citation omitted).
Additionally, an Anders brief must:
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(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
If counsel has satisfied these requirements, we then must conduct “a
full examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.Super.
2018) (en banc) (quoting Anders, 386 U.S. at 744). Should we determine
that the appeal is wholly frivolous, we may grant counsel’s petition to
withdraw. However, “if [this Court] finds any of the legal points arguable on
their merits (and therefore not frivolous) [we] must, prior to decision, afford
the indigent the assistance of counsel to argue the appeal.” Id. (quoting
Anders, 386 U.S. at 744).
Here, counsel has satisfied the procedural requirements of Anders.
Counsel filed a petition to withdraw concluding that the appeal is meritless;
filed a brief raising potential issues that might support the appeal; and has
furnished a copy of the brief to Quail advising him of his right to retain new
counsel, proceed pro se, or raise additional issues that he deems worthy of
our attention.
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Counsel’s Anders brief is also satisfactory. The Anders brief contains a
summary of the procedural history and facts with citations to the record;
references what counsel believes could arguably support the appeal; and
provides counsel’s conclusion that the appeal is frivolous and gives reasons
for such with citations to the record and controlling case law. We now turn to
whether this appeal is wholly frivolous.
Counsel has identified in the Anders brief one claim challenging the
weight of the evidence:
Whether the verdicts of aggravated indecent assault-
forceful compulsion and indecent assault-forceful
compulsion were against the weight of the evidence since
the medical examination of the complainant performed
approximately a day and a half later which included both an
external and internal examination of her labia and vagina
and vaginal ultrasound did not reveal any injury to her
vagina or labia despite her testimony that [Quail] had stuck
his entire hand into her vagina at least 4 or 5 times.
Anders Br. at 4.
A claim challenging the weight of the evidence must be raised in a post
sentence motion or at the sentencing hearing. See Pa.R.Crim.P. 607(A)(1)-
(3). Failure to do so results in waiver of the claim. See Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009) (concluding waiver of weight claim
where appellant failed to raise issue before trial court pursuant to Pa.R.Crim.P.
607).
Here, Quail filed a post-sentence motion challenging the sentence
imposed by the trial court. He argued, “[T]he [s]entence is excessive and
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contrary to law.” Motion for Reconsideration at ¶3. However, his post-sentence
motion did not raise a weight claim, and he did not make any such challenge
at the sentencing hearing. As such, the claim is waived for appellate review.
Sherwood, 982 A.2d at 494. Thus, Quail’s challenge to the weight of the
evidence is frivolous. Furthermore, upon a review of the full record, we discern
no non-frivolous issues that Quail could have raised before this Court.
Therefore, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2021
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