Opinion
J-S75035-18 No. 3426 EDA 2017
01-25-2019
COMMONWEALTH OF PENNSYLVANIA v. THOMAS HARRIS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 15, 2017 in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003877-2014 BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Thomas Harris ("Harris") appeals from the judgment of sentence entered after a jury convicted him of three counts of indecent assault of a person less than 16 years of age, and one count each of indecent exposure, corruption of minors, and endangering the welfare of children. Additionally, counsel for Harris, J. Anthony Foltz, Esquire ("Attorney Foltz"), has filed an Application to Withdraw ("Application") from his representation of Harris, as well as a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant Attorney Foltz's Application and affirm Harris's judgment of sentence.
See 18 Pa.C.S.A. §§ 3126(a)(8), 3127(a), 6301(a)(1)(ii), 4304(a)(1). We will hereinafter refer to the convictions of these offenses collectively as "the sexual offenses."
Briefly, Harris's convictions arise out of his sexual assaults of the minor daughter of his paramour, while they were residing together in Linwood, Pennsylvania. In March 2014, the Commonwealth charged Harris with the sexual offenses, as well as one count of criminal solicitation - involuntary deviate sexual intercourse with a child.
The matter eventually proceeded to a jury trial, at which the Commonwealth presented several witnesses, including the minor victim. Harris also testified on his own behalf, and denied all of the victim's allegations. At the close of trial, the jury convicted Harris of the sexual offenses. Harris then timely filed a pro se Motion for Judgment of Acquittal or a New Trial ("Post-trial Motion"), asserting that the Commonwealth had failed to present sufficient evidence to convict him of any of the sexual offenses, and that the convictions were against the weight of the evidence. The trial court denied Harris's Post-trial Motion. On September 15, 2017, the trial court sentenced Harris to an aggregate term of six months to two years less two days in jail, followed by ten years of probation.
Harris timely filed a Notice of Appeal. The trial court then entered an Order directing Harris to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Harris, through Attorney Foltz, timely filed a Concise Statement, raising the following claim: "The evidence is insufficient to sustain a conviction for the offenses charged against [] Harris because the evidence of [the] Commonwealth does not prove beyond a reasonable doubt that [] Harris committed any of the acts charged." Concise Statement, 5/3/18. Thereafter, Attorney Foltz filed the Application and an Anders Brief. Harris did not file a pro se brief or respond to the Application and Anders Brief.
"When faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel's request to withdraw." Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders , counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief 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.
Commonwealth v. Orellana , 86 A.3d 877, 879-80 (Pa. Super. 2014). Once counsel has satisfied the above requirements, this Court must undertake an independent examination of the record to determine whether the appeal is wholly frivolous. Commonwealth v. Townsend , 693 A.2d 980, 982 (Pa. Super. 1997).
Santiago , 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right 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." Commonwealth v. Nischan , 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied , 594 Pa. 704, 936 A.2d 40 (2007).
Here, Attorney Foltz states in the Application that he has conducted a thorough review of the record and concluded that the appeal is frivolous. Application, 10/10/18, at ¶¶ 2, 3. Attorney Foltz states that he has notified Harris of his intention to withdraw, furnished Harris with copies of the Application and Anders Brief, and advised Harris of his right to retain new counsel or proceed pro se to raise any points he believes worthy of this Court's attention. Id. at ¶¶ 4-6, and Exhibit A. Accordingly, Attorney Foltz has satisfied the procedural requirements of Anders.
Attorney Foltz's Anders Brief also comports with the requirements of Santiago , as it includes a thorough recitation of the history of the case, identifies one potential claim for review, and states counsel's conclusion that the claim is without merit and frivolous. Accordingly, because Attorney Foltz has complied with the requirements for withdrawing from representation, we will independently review the record to determine whether Harris's appeal is, in fact, wholly frivolous.
The Anders Brief presents the following issue for our review: "[Whether t]he trial court erred in denying [] Harris's [Post-trial M]otion ... after his convictions because the Commonwealth failed to provide sufficient evidence to prove beyond a reasonable doubt that he committed the offenses charged[?]" Anders Brief at 6.
We must first address whether this issue has been properly preserved for appellate review. In its Opinion, the trial court determined that the issue was waived, as being improperly preserved in Harris's court-ordered Rule 1925(b) Concise Statement. The trial court cogently reasoned as follows:
Our Superior Court has stated that Pennsylvania Rule of Appellate Procedure 1925 is crucial and "is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all." Commonwealth v. Freeman , 128 A.3d 1231, 1248 (Pa. Super. 2015) (internal citations omitted)[.]
Furthermore, with respect to challenges to the sufficiency of the evidence, our Superior Court has explained, "In order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant's Rule 1925(b) statement must state with specificity the element or elements upon which the appellant alleges that the evidence was insufficient." Id. "Such specificity is of particular importance in cases where, as here, the appellant was convicted of multiple crimes[,] each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Id. (quoting[] Commonwealth v. Gibbs , 981 A.2d 274[, 281] (Pa. Super. 2009))[.]
In Freeman , [the] appellant's concise statement alleged, "the evidence at trial was insufficient to sustain a conviction of the crimes charged." The [Superior] Court explained that the statement was "far too vague to warrant meaningful appellate review[,]" as it did not specify which elements of the crime or even
which crimes the Commonwealth failed to prove beyond a reasonable doubt. Id.Trial Court Opinion, 5/11/18, at 2-3 (unnumbered); see also Pa.R.A.P. 1925(b)(4)(ii) & (vii) (providing, respectively, that "[t]he Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge[,]" and that "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph [] are waived." (emphasis added)). We agree with the trial court's foregoing rationale and likewise determine that Harris waived his sole issue on appeal for lack of sufficient specificity in his Concise Statement. See Freeman , supra.
Much like in Freeman , in the instant matter, [Harris's Rule] 1925 Statement is far too vague for this court to even begin to identify the issues[, and] therefore, those issues are waived. [Harris] was charged with seven counts: three counts of Indecent Assault of a Person Less than 16 Years of Age; one count of Indecent Exposure; one count of Corruption of Minors; one count of Endangering the Welfare of a Child; and one count of Criminal Solicitation - Involuntary Deviate Sexual Intercourse with a Child over 12 and under 16. Each crime contains multiple elements[,] and the crime of Indecent Exposure even contains a requirement that the jury find beyond a reasonable doubt that [Harris] committed the offense in a place where he knew or should have known that a child under the age of sixteen was present.
Following a full three days of testimony before a jury, [Harris] was convicted of six of the seven counts filed against him. Without more specificity, this court is unable to prepare a proper legal analysis and is essentially without the aid of a Statement of Matters Complained of on Appeal.
Nevertheless, even if Attorney Foltz had not waived this claim on behalf of Harris, we would determine that it would not have entitled Harris to relief. See Townsend , supra (stating that this Court must undertake an independent examination of the record to determine whether the appeal is wholly frivolous). Harris challenges that "[t]he record of this case, as indicated by [] Harris in his [Post-trial M]otion ...[,] shows numerous conflicts between the witnesses of the [C]ommonwealth[,] as well as dramatic changes in testimony from the alleged victim in the case." Anders Brief at 24; see also Post-trial Motion, 9/6/17, at ¶ 5 (asserting that "the overwhelming inconsistencies & contrariness between the alleged victim's trial testimony and prior statements made the evidence so weak & inconclusive that no probability of fact may be drawn from the combined circumstances ....").
It is well established that "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. Kearney , 92 A.3d 51, 64 (Pa. Super. 2014) (citation omitted); see also Commonwealth v. Furness , 153 A.3d 397, 401, 404 (Pa. Super. 2016) (stating that assessments of credibility and conflicts in the evidence are for the fact-finder to resolve, and that this Court is not permitted to reexamine credibility determinations or substitute our judgment for that of the fact-finder). Accordingly, the jury in Harris's case was entitled to ostensibly credit the testimony of the victim, and to weigh any purported conflicts in the evidence. See Furness , supra ; see also Commonwealth v. Strutt , 624 A.2d 162, 164 (Pa. Super. 1993) (stating that "[t]he testimony of a sexual assault victim standing alone is sufficient weight to support a conviction.").
Finally, our review of the record reveals no other potential claims that Harris could raise that would entitle him to appellate relief.
Application granted. Judgment of sentence affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/25/2019