Com. v. Folkmann (memorandum)

 Annotate this Case
Download PDF
J-S07036-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, Appellee v. VICTOR THOMAS FOLKMANN, Appellant No. 1875 EDA 2012 Appeal from the Judgment of Sentence of June 12, 2012, in the Court of Common Pleas of Delaware County, Criminal Division at No. CP-23-CR-0001557-2011 BEFORE: OLSON, WECHT and COLVILLE*, JJ. MEMORANDUM BY COLVILLE, J.: Filed: March 12, 2013 This is an appeal from a judgment of sentence. In addition, Appellant s counsel has filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We grant counsel s petition and affirm the judgment of sentence. The background underlying this matter can be summarized in the following manner. Appellant was charged with multiple crimes in connection to his repeated sexual assaults of his daughter and his attempt to sexually assault his daughter s friend. Appellant pled guilty to statutory sexual assault, incest, and attempted indecent assault. Thereafter, the trial court held a hearing in order to determine whether Appellant should be classified as a Sexually Violent Predator ( SVP ). After the hearing, the court _________________ *Retired Senior Judge assigned to the Superior Court. J-S07036-13 concluded that the Commonwealth proved that Appellant should be classified as an SVP. The court later sentenced Appellant, and this appeal followed. In addition, Appellate counsel petitioned this Court for leave to withdraw pursuant to Anders. The following principles guide our review of this matter: Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof. . . . Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention. If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief. Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007) (citations omitted). Our Supreme Court has clarified portions of the Anders procedure: Accordingly, we hold that in 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 -2- J-S07036-13 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). We conclude that counsel has substantially complied with the Anders requirements. We, therefore, will undertake a review of the appeal to determine if it is wholly frivolous. According to counsel, Appellant wishes to claim that the Commonwealth failed to present sufficient evidence to prove he meets the criteria to be classified as an SVP. More specifically, Appellant believes the Commonwealth failed to prove by clear and convincing evidence that Appellant has a mental abnormality or personality disorder that makes him likely to engage in predatory sexually violent offenses. The trial court issued an opinion wherein it addressed and rejected Appellant s claim. Trial Court Opinion, 10/17/12. With the proper standard of review in mind,1 we ____________________________________________ 1 We review such claims in the following manner. A challenge to the sufficiency of the evidence is a question of law requiring a plenary scope of review. The appropriate standard of review regarding the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses. As a reviewing court, we may not weigh the evidence and substitute our judgment for that of the (Footnote Continued Next Page) -3- J-S07036-13 reviewed the certified record and concluded that the trial court s opinion provides a proper basis for rejecting Appellant s sufficiency-of-the-evidence claim. We, therefore, adopt that opinion in agreeing with counsel that this appeal is wholly frivolous and in affirming the judgment of sentence. Judgment of sentence affirmed. Petition to withdraw granted. (Footnote Continued) _______________________ fact-finder. Furthermore, a fact-finder is free to believe all, part or none of the evidence presented. At the hearing prior to sentencing the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator. Accordingly, in reviewing the sufficiency of the evidence regarding the determination of SVP status, we will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied . . .. Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003) (citations and quotation marks omitted). -4-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.