Com. v. Hunter, S. (memorandum)

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J. S10031/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHELTON C. HUNTER, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1122 WDA 2012 Appeal from the Judgment of Sentence entered May 3, 2012, in the Court of Common Pleas of Erie County, Criminal Division, at No. CP-25-CR-0001766-2011. BEFORE: ALLEN, WECHT, and STRASSBURGER*, JJ. MEMORANDUM BY STRASSBURGER, J.: FILED: May 6, 2013 Shelton C. Hunter (Appellant) appeals from the judgment of sentence entered following his conviction of one count each of burglary, robbery, aggravated assault, possession of an instrument of crime, and theft by unlawful taking, and two counts of criminal mischief damage to property.1 Additionally, Appellant s counsel has filed a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel s petition to withdraw and affirm Appellant s judgment of sentence. 1 18 Pa.C.S. §§ 3502(a), 3701(a)(1)(iv), 2702(a)(4), 907(a), 3921(a) and 3304(a)(5), respectively. * Retired Senior Judge assigned to the Superior Court. J. S10031/13 On May 8, 2011, the victim, Hung Mai, returned to his home from shopping at approximately 7:20 p.m. to find the glass in his door shattered and his lock on the door broken. Upon hearing noises inside his house, Hung Mai returned to the front of his house, and observed Appellant exiting his front door carrying two suitcases. Hung Mai recognized one of the suitcases as his own as it had his name written on it. Hung Mai shouted at Appellant to stop and asked him what he was doing in his home. Appellant continued to flee and Hung Mai followed while yelling for help. After approximately one block, Appellant ran behind a house. When Hung Mai rounded the corner, Appellant struck him multiple times with a hammer leaving lacerations, marks, and bruises on Hung Mai s back and side. Upon arrival of the police, Appellant threw the hammer over a fence where it did damage to a parked vehicle. Appellant was arrested and charged with the aforementioned crimes. Counsel was appointed and a jury trial was scheduled. Prior to trial, Appellant filed a motion requesting that he be permitted to proceed to trial pro se. After a hearing on the matter, and colloquy of Appellant, the court, by order dated December 8, 2011, granted Appellant s request to represent himself and appointed the public defender s office to serve as stand-by counsel. The case was continued at Appellant s request, and a jury trial was subsequently held on March 13 and 14, 2012. Appellant was found guilty of all charges. -2- At the conclusion of trial, On May 3, 2012, Appellant was J. S10031/13 sentenced to an aggregate term of 135 months to 270 months of incarceration to run consecutive to the sentence Appellant was serving for another crime. On May 14, 2012, Appellant filed a motion to modify sentence, which was denied on May 16, 2012. Appellant was appointed appellate counsel and this timely appeal followed. On July 2, 2012, the trial court directed Appellant to file a concise statement of the matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). In response, counsel filed a statement of intent to file an Anders/McClendon brief, pursuant to Pa.R.A.P. 1925 (c)(4).2 On appeal, counsel for Appellant has filed a petition for leave to withdraw as counsel and an Anders brief. 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). Furthermore, there are clear mandates counsel seeking to withdraw pursuant to Anders/McClendon/Santiago must follow. In order for counsel to withdraw from an appeal pursuant to Anders ¦ certain requirements must be met: (1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; 2 The trial court, by letter to our Prothonotary dated August 14, 2012, indicated that it would not be submitting a Memorandum Opinion pursuant to Pa.R.A.P. 1925(a), in light of appellate counsel s representation that she would be filing an Anders/McClendon brief. -3- J. S10031/13 (2) counsel must file a brief referring to anything that might arguably support the appeal, but which does not resemble a no merit letter or amicus curiae brief; and (3) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention. Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). In Santiago, the Supreme Court set forth specific requirements for the brief accompanying counsel s petition to withdraw: [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. Santiago, 978 A.2d at 361. Our review of counsel s petition to withdraw, supporting documentation, and Anders brief reveals that counsel has adequately satisfied the foregoing requirements. Counsel has furnished a copy of the brief to Appellant; advised him of his right to retain new counsel, to proceed pro se, or raise any additional points that he deems worthy of this Court s attention; and has attached a copy of the letter sent to the client with the Anders petition as required under Millisock, supra.3 3 Counsel also avers Appellant has not responded to counsel s petition to withdraw. -4- J. S10031/13 specifically that the appeal is frivolous because the evidence was sufficient to support Appellant s convictions and the trial court applied the correct offense gravity score in sentencing Appellant. Anders Brief, at 6, 7-8. Once counsel has met his or her obligations, it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous. Santiago, 978 A.2d at 355 n.5. Thus, we will now examine the issues set forth by counsel in the Anders brief that Appellant believes have arguable merit. See Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006) ( The essence of Anders is that counsel, without actually arguing against his or her own client, sets forth all arguments put forward by the client. ). In the Anders brief, counsel raises the following issues: [1.] WAS THE FINDING OF GUILT BEYOND A REASONABLE DOUBT AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL? [2.] WAS THE OFFENSE GRAVITY SCORE IN THIS CASE INCORRECT CONSIDERING THE JUDGE SENTENCED [APPELLANT] FOR A BURGLARY COMMITTED WITH A PERSON WITHIN A HOME? Anders Brief at 1.4 While counsel in the statement of questions presented phrases the first issue as one challenging the weight of the evidence, counsel in the argument 4 The Commonwealth filed a letter with this Court declining to file a responsive brief. -5- J. S10031/13 section of the brief actually challenges the sufficiency of the evidence supporting Appellant s robbery and burglary convictions. Accordingly, we will address Appellant s issue as a challenge to the sufficiency of the evidence.5 [O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. 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. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty ¦. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. 5 Moreover we note that Appellant did not file a post-trial motion with the trial court challenging the weight of the evidence, as required by Pa.R.Crim.P. 607, and the trial court, as before mentioned, has not filed an opinion addressing this issue. Thus, because appellate review of a weight of the evidence claim is limited to a review of the judge s exercise of discretion, a challenge to the weight of the evidence must be raised with the trial judge or it is waived. See generally Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997); Commonwealth v. Brown, 648 A.2d 1177, 1189-1192 (Pa. 1994). -6- J. S10031/13 Commonwealth v. Stays, 40 A.3d 160, 167 (Pa. Super. 2012) (internal quotations and citations omitted). Robbery is defined, in relevant part, as follows: (a) Offense defined.(1) A person is guilty of robbery if, in the course of committing a theft, he: * * * (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; * * * (2) An act shall be deemed in the course of committing a theft if it occurs in an attempt to commit theft or in flight after the attempt or commission. 18 Pa.C.S. § 3701 (a)(1)(iv) and (2). The burglary statute provides in pertinent part, as follows: (a) Offense defined.-A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. * * * (c) Grading.(1) Except as provided in paragraph (2), burglary is a felony of the first degree. (2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree. -7- J. S10031/13 18 Pa.C.S. § 3502 (a) and (c). Moreover, occupied structure is defined as [a]ny structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present. 18 Pa.C.S. § 3501. The record reflects that the evidence was more than sufficient to support the verdicts of both challenged crimes. With respect to the robbery conviction, Appellant argues that Hung Mai did not arrive home until after the act took place[;] thus, [the crime of] robbery ¦ was not proven. Anders Brief at 4. Essentially, Appellant maintains that because the victim was not at home during the actual theft, and when he encountered the victim the theft had been completed, his encounter with the victim cannot constitute robbery because it was not in the course of committing a theft. Appellant s argument however overlooks that the victim of the robbery need not be present during the actual commission of the theft to satisfy the element of in the course of committing a theft. The statute specifically states that in the course of committing a theft includes flight after the ¦ commission of the theft. 18 Pa.C.S. § 3701(a)(2). Thus, Appellant s argument is expressly refuted by the terms of the statute itself. Hung Mai testified that upon returning home he saw that the glass in his back door had been broken and he heard a noise of someone running inside his home. Upon returning to his front yard, he observed Appellant exit his home via the front door. He immediately began to follow Appellant -8- J. S10031/13 down the block and behind neighboring homes where Appellant repeatedly struck Hung Mai with the hammer leaving abrasions, lacerations and bruises on his back. Thus, Appellant s encounter with Hung Mai, having taken place in flight immediately following the commission of the theft, satisfies the element of in the course of committing a theft, necessary for upholding the robbery conviction. See Commonwealth v. Johnson, 485 A.2d 397, 401 (Pa. Super. 1984) (holding that where less than one minute elapsed from time defendant departed scene of robbery to fatal shooting of victim, passage of time was negligible and did not represent termination of robbery or defendant s abandonment of robbery scheme). Accordingly, Appellant s challenge to the sufficiency of his robbery conviction on this basis fails. Appellant also contends that the evidence was insufficient to convict him for burglary graded as a felony of the first-degree, because no one was home at the time of the burglary. Anders Brief at 5-6. Appellant s position is contrary to the clear language of the statute. Subsection (c) of section 3502 provides that a burglary is a felony of the first-degree unless the building, structure or portion entered is not adapted for overnight accommodation and no individual is present at the time of entry; then the burglary is a felony of the second degree. Testimony at trial revealed that the building burglarized was Hung Mai s home. Thus, the building was adapted for overnight accommodation. Hence, the fact that Hung Mai was not home at the time of the burglary, in itself, is not a valid basis for -9- J. S10031/13 reducing the grading of the burglary from first-degree to second-degree under the terms of the statute. See Commonwealth v. Waters, 988 A.2d 681 (Pa. Super. 2009) (providing that a defendant commits first degree burglary if the location illegally entered: (1) is adapted for overnight accommodation but no individual is present; (2) is not adapted for overnight accommodation but an individual is present; or (3) is adapted for overnight accommodation and an individual is present ). Accordingly, Appellant s sufficiency claim as to his burglary conviction is devoid of merit. Next Appellant claims that the trial court erred in assessing him an incorrect offense gravity score for the burglary offense. Specifically, Appellant alleges that the court assessed him an offense gravity score consistent with a burglary committed with a person in the home rather than a burglary of a home in which at the time of the offense no person was present. Appellant s issue challenges the discretionary aspects of his sentence. See Commonwealth v. Lamonda, 52 A.3d 365, 371-372 (Pa. Super. 2012) (en banc). Our standard of review in such cases is one of abuse of discretion. 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. (Pa. Super. 2006). Commonwealth v. Shugars, 895 A.2d 1270, 1275 Moreover, where an appellant challenges the discretionary aspects of a sentence there is no automatic right to appeal, - 10 - J. S10031/13 and an appellant s appeal should be considered a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010): [a]n appellant challenging the discretionary aspects of his sentence must invoke this Court s jurisdiction by satisfying a four-part test: [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). Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Instantly, Appellant has met prongs one and two of this test by filing a timely notice of appeal and by preserving the issue in a timely motion for modification of sentence. However, Appellant has failed to include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).6 Typically, this would result in waiver of this argument. 6 It is well established that Pa.R.A.P. 2119(f) requires an appellant to provide a separate statement specifying where the sentence falls in the sentencing guidelines, what provision of the sentencing code has been violated, what fundamental norm the sentence violates, and the manner in - 11 - J. S10031/13 Commonweath v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011). However because the Commonwealth failed to object, we may proceed to address whether Appellant has raised a substantial question. Id. It is well- established that a claim that the sentencing court used an incorrect offense gravity score poses a substantial question. Lamonda, 52 A.3d at 371 (citing Commonwealth v. Archer, 722 A.2d 203, 201-211 (Pa. Super. 1988) (en banc)). Thus, we will address Appellant s claim on its merits. Certain offenses in the Crimes Code are subcategorized and scored by the Pennsylvania Commission on Sentencing according to the particular circumstances of the offense. See generally 204 Pa.Code § 303.3(b). One such offense is burglary. 204 Pa.Code § 303.15. In section 303.15, burglary, in relevant part, is subcategorized as follows. For burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present an offense gravity score of a 9 is assigned. Id. For burglary of a structure adapted for overnight accommodation in which at the time of the offense no person is present, the assigned offense gravity score is a 7. Id. In this instance, the trial court concluded that the offense was properly viewed for sentencing purposes as a burglary of a structure adapted for overnight accommodation in which, at the time of the offense, any person is which it violates the norm. Commonwealth v. Sarapa, 13 A.3d 961, 962 (Pa. Super. 2011) (citing Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)). - 12 - J. S10031/13 present. Thus, Appellant was assigned an offense gravity score of 9 in calculation of his sentence. Although Appellant is correct at the inception of his burglary no one was present in the home, during the commission of the burglary Hung Mai returned home. This Court has previously addressed a similar situation in Commonwealth v. Stepp, 652 A.2d 922 (Pa. Super. 1995). In Stepp a homeowner left his residence during the morning hours and returned home around 12:30 p.m. to find his door open and the doorknob broken. The homeowner reached into the doorway and retrieved his shotgun and then entered his residence. Stepp attempted to flee from the homeowner but was detained and later arrested by the police. In determining that the higher offense gravity score for burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present should be applied, this Court reasoned: [t]he danger of harm to a person is the same whether that person confronts the burglar upon re-entry into his home or whether he comes downstairs and finds the burglar in his living room. While it may be true that some burglars are more professional than others and plan their criminal activity so that the occupants are most likely absent when the burglar puts his plan into motion, many burglars simply choose to burglarize a structure which appears unoccupied. In either situation, it does not advance the interests of justice to reward the burglar with a lower offense gravity score simply because he was lucky at the moment he entered the then unoccupied structure. A potentially violent encounter exists whenever a person discovers an intruder inside his home. - 13 - J. S10031/13 Id. at 924. See also Commonwealth v. Knowles, 891 A.2d 745 (Pa. Super. 2006) (following rationale in Stepp for similar argument but for determination under 42 Pa.C.S. § 9714, which provides, in relevant part, that a crime of violence includes burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present). Thus, we concluded in Stepp that the likelihood for greater mischief and violence is equally present both when a person returns to their residence and discovers an intruder and when a person already within the home discovers an intruder. Id. at 924. While the homeowner in Stepp reentered his home after discovering a burglary in progress and Hung Mai, in this instance, did not actually enter his home, we see this, under the circumstances of this case, as a distinction without a difference. Regardless, of whether he entered his home, Hung Mai encountered Appellant as he was fleeing from the front door, and violence ensued with Hung Mai being injured. We find the likelihood for mischief and violence was equally present in this case as where a person returns home and actually enters the premises. Consequently, we find that the trial court applied the proper offense gravity score in sentencing Appellant. In conclusion, we have not only reviewed the Anders Brief filed on behalf of Appellant, but also have conducted an independent evaluation of the record in this case and concur with counsel s assessment that the appeal - 14 - J. S10031/13 is wholly frivolous. Consequently, we grant counsel s petition to withdraw and affirm Appellant s judgment of sentence. Judgment of sentence affirmed. granted. Judgment Entered. Deputy Prothonotary Date: May 6, 2013 - 15 - Petition to withdraw as counsel

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