J-S04012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SCOTT TEIXEIRA                           :
                                          :
                   Appellant              :   No. 511 MDA 2018

          Appeal from the Judgment of Sentence February 27, 2018
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0002996-2016


BEFORE:    SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 28, 2019

      Appellant, Scott Teixeira, appeals from the judgment of sentence

entered following his conviction of various crimes pertaining to him exposing

his genitals to two women. Appellate counsel has filed a petition seeking to

withdraw his representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), which govern a withdrawal from representation on direct appeal. We

grant counsel’s petition to withdraw and affirm.

      The trial court summarized the history of this case as follows:

            On October 25, 2016, the Commonwealth filed an eight (8)
      count criminal Information charging [Appellant] with two (2)
      counts of Indecent Exposure, 18 Pa.C.S.A. §3127 §§ (A); two (2)
      counts of Open Lewdness, 18 Pa.C.S.A. §5901; two (2) counts of
      Harassment, 18 Pa.C.S.A § 2709 §§(A)(4); and two (2) counts of
      Disorderly Conduct, 18 Pa.C.S.A. §5503 §§(A)(3). The charging
      documents, in summary, alleged that [Appellant] was employed
      as a tow truck driver who responded to a service call made by a
____________________________________
* Former Justice specially assigned to the Superior Court.
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     female motorist. Upon arriving at the scene of the service call,
     [Appellant] began making lewd gestures and remarks and
     ultimately he removed his genitals and exposed himself to the
     female driver and a second female who accompanied her.

           A jury trial commenced on January 10, 2018, and after the
     conduct of a trial and the jury’s deliberation, [Appellant] was
     convicted of Indecent Exposure, Open Lewdness and Disorderly
     Conduct.1     [Appellant] was acquitted of both counts of
     Harassment. (N.T. Trial p. 158-159). On February 27, 2018,
     [Appellant] appeared for sentencing. After having considered the
     Pre-Sentence Investigation (PSI), the arguments of counsel, and
     the allocution of [Appellant], we sentenced [Appellant] to an
     aggregate term of thirty (30) months of probation supervision.2
     [Appellant] was advised of his post-sentence rights and the record
     was closed. (N.T. Trial p. 6).

          1 The Commonwealth charged one count of Open
          Lewdness, Disorderly Conduct and Indecent Exposure
          for each of the two (2) victims in the case. It having
          become clear that the duplicate counts derived from
          the same act of [Appellant], the [trial c]ourt asked
          counsel to provide authority to support charging
          [Appellant] with two (2) distinct counts of Open
          Lewdness, Disorderly Conduct and Indecent Exposure
          for the same contemporaneous acts as against two (2)
          victims.    Counsel was given an opportunity to
          research the issue raised by the [trial c]ourt and
          agreed to resolve the matter by submitting one (1)
          count each of the Open Lewdness, Disorderly Conduct
          and Indecent Exposure charges to the Jury’s
          consideration. N.T. Trial pgs. 124-127.

          2 On count one (1) Indecent Exposure, [the trial court]
          sentenced [Appellant] to a term of twenty-four (24)
          months of probation. [The trial court] deemed count
          three (3), Open Lewdness to merge for sentencing
          purposes with count one (1).        On count seven,
          Disorderly Conduct, [the trial court] sentenced
          [Appellant] to a six (6) month term of probation to run
          consecutive to the sentence imposed on count one
          (1).




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            On March 26, 2018, [Appellant], acting pro se, filed a
     document titled “Brief.”3 In response to [Appellant’s] filing [the
     trial court] scheduled a hearing to ascertain whether or not he
     wished to be represented by counsel in his appeal.             See
     Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

           3[The trial court] deemed [Appellant’s] pro se brief as
           a timely Notice of Appeal.

            On May 9, 2018, following the conduct of a hearing, [the
     trial court] determined that [Appellant] wished to be represented
     by counsel in his appeal. By order dated May 11, 2018, [the trial
     court] appointed Attorney Matthew Kelly to represent [Appellant].
     In a second Order issued that same date, [the trial court] directed
     Attorney Kelly to file a Concise Statement pursuant to Pa. R.A.P.
     1925(b) within twenty-one (21) days of the date of [the] Order
     and asked the Commonwealth to respond thereto within twenty-
     eight (28) days. (Order 5/11/2018).

            On June 1, 2018, [Appellant’s] counsel filed a Concise
     Statement raising two (2) issues, a general allegation that the
     evidence was insufficient as to “all of the elements of the above
     offenses...” and an allegation that the [trial c]ourt erred in failing
     to dismiss a particular juror over a defense objection. (Concise
     Statement filed 6/1/18). On June 8, 2018, [Appellant’s] counsel
     filed a “Supplemental Statement of Matters Complained of On
     Appeal Pursuant To Pa. R.A.P 1925(b)” which raised one additional
     issue alleging that the “Commonwealth violated Rule 600 in failing
     to call the case for trial within the timeframe set forth therein.”
     ([Appellant’s] Supplemental Concise Statement filed 6/8/18). The
     Commonwealth declined to respond to [Appellant’s] Concise
     Statements.

Trial Court Opinion, 10/25/18, at 1-3.

     As noted, counsel has filed a petition to withdraw from representation.

Before we address any questions raised on appeal, we must resolve appellate

counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030

(Pa. Super. 2013) (en banc). There are procedural and briefing requirements




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imposed upon an attorney who seeks to withdraw on direct appeal.              The

procedural mandates are that counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that he
      or she has the right to retain private counsel or raise additional
      arguments that the defendant deems worthy of the court’s
      attention.

Id. at 1032 (citation omitted).

      In this case, those directives have been satisfied. Within the petition to

withdraw, counsel averred that he conducted a conscientious review of the

record and pertinent legal research. Following that review, counsel concluded

that the present appeal is frivolous. Counsel sent Appellant a copy of the

Anders brief and petition to withdraw, as well as a letter, a copy of which is

attached to the petition to withdraw. In the letter, counsel advised Appellant

that he could represent himself or that he could retain private counsel.

Appellant has not filed any additional documents with this Court.

      We now examine whether the Anders brief satisfies the Supreme

Court’s dictates in Santiago, which provide 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 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.


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Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.       The brief sets forth the

procedural history of this case, outlines pertinent case authority, and

discusses counsel’s conclusion that the appeal is frivolous. We thus conclude

that the procedural and briefing requirements for withdrawal have been met.

      Counsel has identified the following issues that Appellant believes entitle

him to relief:

      I. Whether the evidence was sufficient to support a guilty verdict.

      II. Whether the trial court erred in failing to dismiss a juror.

      III. Whether the Commonwealth violated Rule 600 in failing to call
      the case for trial within the requisite timeframe.

Anders Brief at 1.

      Appellant first argues that the evidence was insufficient to support his

convictions. Anders Brief at 5-6. Specifically, Appellant contends that the

evidence did not show beyond a reasonable doubt that Appellant committed

the crimes of indecent exposure, open lewdness, and disorderly conduct. Id.

      Our standard of review is well established:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder[’s].  In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no

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      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the finder
      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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      The crime of indecent exposure is defined as follows:

      (a) Offense defined. — A person commits indecent exposure if
      that person exposes his or her genitals in any public place or in
      any place where there are present other persons under
      circumstances in which he or she knows or should know that this
      conduct is likely to offend, affront or alarm.

18 Pa.C.S. § 3127(a). Regarding open lewdness, the Crimes Code sets forth

that “[a] person commits a misdemeanor of the third degree if he does any

lewd act which he knows is likely to be observed by others who would be

affronted or alarmed.” 18 Pa.C.S. § 5901. In addition, the crime of disorderly

conduct is defined, in pertinent part, as follows:

      (a) Offense defined. — A person is guilty of disorderly conduct
      if, with intent to cause public inconvenience, annoyance or alarm,
      or recklessly creating a risk thereof, he:

                                     ***

            (3) uses obscene language, or makes an obscene
            gesture.

18 Pa.C.S. § 5503(a)(3).

      In addressing this issue, the trial court offered the following analysis:




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           A review of the facts of the instant case and the testimony
     of the Commonwealth’s witnesses, clearly indicate that the
     evidence was more than sufficient to enable a jury to find
     [Appellant] guilty of Indecent Exposure, Open Lewdness, and
     Disorderly Conduct.

                                   ***

            In [Appellant’s] case, the Commonwealth’s first witness
     testified that the vehicle she was driving became disabled at the
     intersection of Pierce and North Gates Street in Kingston,
     Pennsylvania. (N.T. Trial p. 45) She called a friend who lived
     nearby to accompany and assist her. (Id. p. 45-46). A police
     officer and a parent of her friend helped her push the vehicle out
     of the way of traffic. (Id.) The officer and parent then left the
     scene leaving the female driver and her friend to wait for
     [Appellant’s] tow truck which they summoned by phone. (Id.)
     Ultimately, [Appellant] responded to the service call and began
     working on the disabled vehicle. (Id. p. 48) It wasn’t long before
     [Appellant] exposed his genitals to the motorist and her company.
     The witness[’s] pertinent testimony was as follows:

           Q. So you’re about this far from him. After all that
           was happening, what happened next?

           A. When [Appellant] took his shirt off, he took his
           mechanic shirt off and his sweatshirt, but he did put
           the mechanic shirt back on; and then he was working
           on the car doing whatever springs and stuff, and then
           we were sitting on the sidewalk and he was there
           where the cars would be naturally parked on the road;
           and he went to his truck to look for something, and
           when he came back to work on my car, he was
           completely exposed through his pants.

           Q. When you say that he was completely exposed,
           what do you mean by that?

           A. His penis was out.

           Q. And his penis was out through his pants?

           A. Yes.


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          Q. Was it part of his penis or his entire penis, if you
          remember?

          A. No, it was completely exposed, yeah. (N.T. Trial p.
          49)

           A second Commonwealth witness, the motorist’s friend, was
     called to testify and the following exchange occurred:

          Q. What happened next?

          A. [Appellant] went and took his sweatshirt off. He
          came back and started working, I guess on the
          battery. I don’t really know car stuff, but the battery
          area. He was working on it; and then both Kristen
          and I were sitting on the sidewalk, and he turned
          around and his stuff was exposed.

          Q. When you say his---I’m going to back up a minute.
          When all this is happening, about how far are you and
          Kristen from where he is?

          A. From me to her probably.

          Q. And you said that he turned toward you, and he
          had his stuff exposed. What do you mean when you
          said, stuff?

          A. His private area, his penis and stuff.

          Q. His penis was exposed?

          A. Yes.

          Q. Was his penis completely exposed or partially
          exposed or something else?

          A. Completely. (N.T. Trial p. 70-71)

           Accordingly, we do not hesitate to conclude that sufficient
     evidence was presented to demonstrate that [Appellant]
     committed the offense of Indecent Exposure.         Indeed, the
     evidence of his guilt is overwhelming.


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             Likewise, we believe the same aforementioned evidence
      would adequately sustain the Commonwealth’s burden for Count
      three (3) Open Lewdness and Count seven (7) Disorderly Conduct.
      The statute governing Open Lewdness, 18 Pa.C.S.A. § 5901, reads
      as follows: “A person commits a misdemeanor of the third degree
      if he does any lewd act which he knows is likely to be observed by
      others who would be affronted or alarmed.” 18 Pa.C.S.A. § 5901.
      Plainly, by exposing his genitals to two women in public
      [Appellant] committed an act sufficient to sustain his conviction
      on this charge. An individual is guilty of disorderly conduct if, with
      intent to cause public inconvenience, annoyance or alarm, or
      recklessly creating a risk thereof, he uses obscene language, or
      makes an obscene gesture. 18 Pa.[C.S.] § 5503 §§ (A)(3). We
      do not hesitate to agree that [Appellant’s] conduct recklessly
      caused annoyance and alarm.

Trial Court Opinion, 10/25/18, at 4-7.

      We agree with the trial court that the evidence presented was sufficient

to prove that Appellant purposely exposed his genitals to the two women. The

above cited testimony offered by the two women, when viewed in the light

most favorable to the Commonwealth as the verdict winner, is sufficient for

the jury to conclude beyond a reasonable doubt that Appellant, while

rendering assistance to a motorist and her friend, exposed his genitals with

the purpose of alarming the victims. Accordingly, the evidence is sufficient to

prove that Appellant committed the crimes of indecent exposure, open

lewdness, and disorderly conduct. Therefore, Appellant’s contrary argument

lacks merit.

      Appellant next argues that the trial court erred in failing to dismiss a

juror. Anders Brief at 6-7. Appellant contends that “despite objection from

counsel, a jury member was permitted to serve as a juror despite


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acknowledging that she knew a Commonwealth witness, Kristen Blight.” Id.

at 6. Essentially, Appellant posits that the juror should have been removed.

Under these particular facts, we disagree.

      Before addressing the merits of Appellant’s claim, we must determine

whether Appellant properly preserved the issue for our consideration. It is

well settled in Pennsylvania that a party must make a timely and specific

objection at trial in order to preserve an issue for appellate review. Pa.R.A.P.

302(a), see also Commonwealth v. Montalvo, 641 A.2d 1176, 1185 (Pa.

Super. 1994) (citation omitted) (“In order to preserve an issue for review, a

party must make a timely and specific objection at trial”).        Pursuant to

Pa.R.A.P. 302, issues that are not raised in the lower court are waived and

cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Likewise, we

have long held that “[a] claim which has not been raised before the trial court

cannot be raised for the first time on appeal.” Commonwealth v. Lopata,

754 A.2d 685, 689 (Pa. Super. 2000). Even issues of constitutional dimension

cannot be raised for the first time on appeal. Commonwealth v. Strunk,

953 A.2d 577, 579 (Pa. Super. 2008). Thus, only claims properly presented

in the trial court are preserved for appeal.

      Our review of the record reflects that the following transpired when the

assistant district attorney called Commonwealth witness Kristen Blight to

testify:




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      [ASSISTANT DISTRICT ATTORNEY]: Thank you, Your Honor. The
      Commonwealth is going to call Kristen Blight. Your Honor, may
      we have a sidebar briefly?

      (A discussion was held off the record at sidebar.)

      THE COURT: Before we proceed, ladies and gentlemen of the jury,
      a person being called as a witness is indicating she thinks she
      might know one of you who are in the jury, and I know one of the
      questions you were asked during the jury questioning procedure
      is whether you know any of the potential witnesses, and I don’t
      believe any of you had responded that you did, so I’m just going
      to ask again. Does any member of the jury know Ms. Blight?

      UNIDENTIFIED JUROR: I don’t personally know her, but we went
      to high school together. I’ve never spoken with her, though. The
      question was if we were friends. I’ve never spoken a word to her.

      THE COURT: Would any of that to [sic] cause you to feel in any
      way it would impair your ability to sit on this case?

      UNIDENTIFIED JUROR: No, not at all.

      THE COURT: Counsel fine?

      [DEFENSE COUNSEL]: That’s fine.

      THE COURT: Okay. Thank you.

N.T., 1/9/18, at 41-42.

      Thus, the record indicates that, when faced with the opportunity to

object, defense counsel declined to do so. Accordingly, Appellant’s claim that

the juror was improperly permitted to remain on the jury despite objection

from counsel is belied by the record. Moreover, because Appellant failed to

make a timely and specific objection at trial, the issue is not preserved for

appellate review. Pa.R.A.P. 302(a).




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      Appellant last argues that the Commonwealth violated Pa.R.Crim.P.

600. Anders Brief at 7. Appellant asserts that the Commonwealth failed to

call his case for trial within the required timeframe. Id.

      In the instant matter, our review of the record reveals that at no time

during the pendency of this case did Appellant’s trial counsel file a motion to

dismiss the charges pursuant to Rule 600. See Pa.R.Crim.P (600)(D)(1)

(stating, “[w]hen a defendant has not been brought to trial within the time

periods set forth in paragraph (A), at any time before trial, the defendant’s

attorney, or the defendant if unrepresented, may file a written motion

requesting that the charges be dismissed with prejudice on the ground that

this rule has been violated...”).   Again, it is well settled that “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). Accordingly, we agree with the trial court that

Appellant has waived his Rule 600 claim. See Trial Court Opinion, 11/27/13,

at 3 (stating that “[t]his issue was never raised before the trial court and this

issue … is waived.”).

      Finally, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case that

Appellant may raise.    Commonwealth v. Yorgey, 188 A.3d 1190, 1198-

1199 (Pa. Super. 2018) (en banc).        Having concluded that there are no

meritorious issues, we grant Appellant’s counsel permission to withdraw, and

we affirm the judgment of sentence.


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     Petition to withdraw as counsel granted.   Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/28/2019




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