J-S56004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEREMIE ALAN BAKER,

                            Appellant                  No. 56 MDA 2016


       Appeal from the Judgment of Sentence Entered February 17, 2015
                In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000538-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 21, 2016

        Appellant, Jeremie Alan Baker, appeals nunc pro tunc from the

judgment of sentence of an aggregate term of 11 to 22 years’ imprisonment,

imposed after he was convicted of one count each of burglary (18 Pa.C.S. §

3502(a)(1)), robbery (18 Pa.C.S. § 3701(a)(1)(ii)), and criminal conspiracy

to commit robbery (18 Pa.C.S. § 903(1)(1)). Counsel seeks permission to

withdraw from further representation pursuant to Anders v. California, 386

A.2d 738 (Pa. 1967).         Upon review, we find that counsel’s Anders brief

substantially satisfies the requirements set forth in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We also agree with counsel that the

issues Appellant seeks to raise on appeal – challenges to the sufficiency of

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*
    Former Justice specially assigned to the Superior Court.
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the evidence – are frivolous, and there are no other non-frivolous issues he

could raise herein. Accordingly, we grant counsel’s petition to withdraw and

affirm the judgment of sentence.

      Appellant’s convictions stem from an incident that occurred during the

early morning hours of May 21, 2014, at the home of the victims, Sanjiv and

Rashmi Mohla.    Mr. and Mrs. Mohla own three gas stations and two small

motels. They reside next door to one of their motels, the Fairfield Lodge,

located in Fairfield, Pennsylvania.   N.T. Trial, 12/9/14, at 59-60.   Mr. and

Mrs. Mohla routinely brought cash home at the end of each business day and

kept the cash in a money bag in either their kitchen or bedroom overnight.

Mrs. Mohla would then deposit the funds at the bank the next day. Id. at

65-67.

      Appellant’s father, Phillip Baker, was a master electrician and did some

work for Mr. and Mrs. Mohla at their places of business beginning in July or

August of 2013. Later that year, Phillip Baker introduced Appellant to the

Mohla’s.   Appellant and his brother, Jeffrey Baker, began doing yard work

and other odd jobs around the Fairfield Lodge in December 2013. Id. at 60-

64. Mr. Mohla testified that there were several occasions between April 14,

2014 and May 20, 2014, where a portion of the cash from their business

went missing from their home. Id. at 72-75. At first, the Mohla’s thought

perhaps they had miscounted the funds, but then later began to suspect that

Appellant and/or his brother were responsible. Id. at 113, 128.




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      On the night of the incident, Mr. and Mrs. Mohla were sleeping in their

bedroom and were awoken around 1:00 a.m. by two men with flashlights.

Id. at 76. Mr. Mohla attempted to get up, but was struck on the head with a

flashlight by one of the men, causing him to bleed profusely and fall to his

knees on the floor. The intruder then threatened to shoot him and held a

gun to his forehead.    Id. at 77.   The other intruder went straight to the

drawer where Mr. and Mrs. Mohla usually kept their money bag, and after

discovering that the bag was empty, asked: “Where’s the money?” Id. at

79-80. Mr. Mohla stated that both men became agitated and that the man

holding the gun then demanded “the big money” or else he would shoot him.

Id. at 80-82. The man with the gun then forced Mr. Mohla to his feet and

prodded him with a gun to his back until Mr. Mohla finally led him to the

money bag in another bedroom. The intruder instructed Mr. Mohla to get on

the floor and not to look up at him or else he would shoot him.          He then

turned on the light, counted the money, and shouted to the other man, “We

got the money. Let’s go.” Id. at 83-84. While Mr. Mohla was being held at

gun point and led throughout the house by one intruder, the other intruder

stayed with Mrs. Mohla and instructed her to “lie down or you’ll get hurt.”

Id. at 122. Mrs. Mohla testified that she recognized this man as Appellant.

Id. at 120.

      Following a jury trial, Appellant was sentenced to the above-stated

term on February 17, 2015.      The trial court summarized the subsequent

procedural history of this case in its Pa.R.A.P. Rule 1925(a) opinion:

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        No direct appeal was filed. However, on April 9, 2015, Appellant
        filed pro se correspondence challenging trial counsel’s
        performance. This [c]ourt treated the correspondence as a Post
        Conviction Relief Petition[1] and appointed P.C.R.A. counsel to
        represent Appellant. Appointed counsel was further granted
        opportunity to file an Amended P.C.R.A. Petition in compliance
        with statutory authority. Thereafter, [an] Amended P.C.R.A.
        Petition was timely filed which included a claim that trial counsel
        abandoned Appellant on direct appeal. After [a] pre-hearing
        conference, this [c]ourt conducted [a] hearing on October 19,
        2015. By Order dated December 17, 2015, Appellant’s P.C.R.A.
        Petition was granted to the extent trial counsel was ineffective in
        failing to timely perfect an appeal. Accordingly, Appellant’s
        post[-]sentence rights were reinstated.        This direct appeal
        follows. See Commonwealth v. Huddleston, 55 A.3d 1217
        (Pa. Super. 2012).

Trial Court Opinion (TCO), 3/11/16, at 1 n.1.

        Appellant now presents the following claims, via counsel’s Anders

brief, as follows:

        I.    Was the evidence insufficient to find [Appellant] guilty of
              conspiracy when the element of planning of the crime of
              conspiracy was not established at trial, in that no other
              person was charged?

        II.   Was the evidence insufficient to find [Appellant] guilty of
              robbery when there was no testimony that [he] had a
              weapon, nor was there testimony that [Appellant] made
              any threats of force?

Anders Brief at 7.

        “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.

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1
    Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.



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2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.

Super. 1997)).

     Court-appointed counsel who seek to withdraw from
     representing an appellant on direct appeal on the basis that the
     appeal is frivolous 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) file a brief referring to anything that arguably might
          support the appeal but which does not resemble a “no
          merit” letter or amicus curiae brief; and (3) furnish a copy
          of the brief to the [appellant] and advise the [appellant] of
          his or her right to retain new counsel or raise any
          additional points that he or she deems worthy of the
          court’s attention.

     Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
     (citation omitted).

Rojas, 874 A.2d at 639.        Appellant’s counsel has complied with these

requirements.    Counsel petitioned for leave to withdraw, and filed a brief

satisfying the requirements of Anders, as discussed, supra.       Counsel also

provided a copy of the brief to Appellant, and submitted proof that he

advised Appellant of his right to retain new counsel, proceed pro se, and/or

to raise new points not addressed in the Anders brief.

     Our Supreme Court has held, in addition, that counsel must explain

the reasons underlying his assessment of Appellant’s case and his conclusion

that the claims are frivolous. Thus, counsel’s Anders brief must satisfy the

following criteria before we may consider the merits of the underlying

appeal:




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       [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.

       Upon review of the Anders brief submitted by Appellant’s counsel, we

find that it contains a summary of the procedural history and facts of this

case, identifies the issues that Appellant wishes to raise, and references

facts and case law arguably supporting those claims. We acknowledge that

counsel’s Anders brief lacks a conclusion that Appellant’s claims are

frivolous and reasons to support this conclusion. However, counsel did state

in his petition to withdraw that, after a conscientious examination of the

record, he determined the issues to be frivolous.

       Here, we will overlook counsel’s failure to include a statement of

frivolity in his Anders brief, because that omission does not impede our

ability, in this case, to review Appellant’s sufficiency claims in accordance

with our standard of review.2             Based on the foregoing, we find that

Appellant’s     counsel     has    substantially   complied   with   the   Anders’

requirements.       Substantial compliance has been deemed sufficient for
____________________________________________


2
  Counsel should be careful to fully comply with all of the Anders
requirements in future cases.



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withdrawal on direct appeal. Commonwealth v. Wrecks, 934 A.2d 1287,

1290 (Pa. Super. 2007). Thus, we now examine whether Appellant’s claims

are, indeed, frivolous.

      To begin, we note our standard of review:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

      First, we review Appellant’s challenges to the sufficiency of the

evidence to support his conviction of robbery.    To sustain a conviction for

robbery under 18 Pa.C.S. § 3701(a)(1)(ii), the Commonwealth is required to

prove “that in the course of committing a theft, [the] [a]ppellant threatened

another with or intentionally put her in fear of immediate serious bodily

injury.” Commonwealth v. Valentine, 101 A.3d 801, 806-807 (Pa. Super.

2014) (internal quotation marks and citations omitted).      Appellant alleges

that the evidence was insufficient to support his conviction of robbery

because he did not have any weapon and did not make any threats.

Appellant’s Brief at 15. However, under Pennsylvania law, “[t]he evidence is

sufficient to convict a defendant of robbery under this section if the evidence

demonstrates aggressive actions that threatened the victim’s safety.        The


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court must focus on the nature of the threat posed by an assailant and

whether he reasonably placed a victim in fear of immediate serious bodily

injury.” Id. at 807 (internal citations omitted). Thus, this claim is frivolous.

      Appellant contends that he lacked the criminal intent to cause serious

bodily harm and that he did not assist with the robbery, but rather attended

to the wife and kept her from getting hurt. Appellant’s Brief at 15. After

careful review, we discern Appellant’s contentions to be wholly frivolous. As

the trial court summarized in its opinion:

      [T]wo intruders entered the home of the victims in the middle of
      the night. One victim was struck in the head by a heavy
      flashlight and led away by gunpoint. The other was forced to the
      ground with the instruction to lie there or she would be hurt.
      This instruction followed her observation of the other intruder
      putting a gun in her husband’s face after knocking him to the
      floor with a flashlight blow to his head and thereafter threatening
      to shoot him. Although it is reasonable to conclude from the
      trial evidence that the intruder other than Appellant was the
      more violent of the two and possessed the firearm, this
      distinction is immaterial. Pennsylvania law is clear that evidence
      of Appellant’s assistance to the other intruder throughout the
      course of the robbery is sufficient to support a finding of shared
      intent to facilitate the other’s actions.     Commonwealth v.
      Everett, 443 A.2d 1142, 1145 (Pa. 1982). Thus, even assuming
      Appellant did not carry a weapon, employ threats, or cause
      physical injury, his assistance to the other intruder is sufficient
      to support the elements necessary for conviction. Id.

TCO at 4.

      Next, Appellant argues that the evidence was insufficient to sustain his

conviction of conspiracy to commit robbery.      He asserts that a conspiracy

requires at least two members and suggests that he was the only person

charged in this matter with conspiracy. Appellant’s Brief at 12. Appellant


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also argues that the Commonwealth failed to prove that he entered into an

agreement to commit a crime.          Id.   Based on the following, Appellant’s

claims are frivolous.

      It is well-established that “[t]o sustain a conviction for criminal

conspiracy, the Commonwealth must establish the defendant: (1) entered

into an agreement to commit or aid in an unlawful act with another person

or persons; (2) with a shared criminal intent; and (3) an overt act was done

in furtherance of the conspiracy.”      Commonwealth v. Devine, 26 A.3d

1139, 1147 (Pa. Super. 2011). “This overt act need not be committed by

the   defendant;   it   need   only   be    committed   by   a   co-conspirator.”

Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)

(citations omitted).

      As the trial court stated in its well-thought-out opinion, the evidence at

trial overwhelmingly satisfied the above elements. TCO at 2. Both victims

testified,

      that they were awakended at gunpoint in the middle of the night
      by two individuals who were shining flashlights in their eyes.
      The male victim was struck in the head with a large metal
      flashlight and [was] removed from the bedroom at gunpoint
      while being directed to take one of the intruders to the location
      … where the money was secured. The second intruder remained
      upstairs with the female victim instructing her to lie on the floor
      and remain there or “she would get hurt.”            Both victims
      described a scenario wherein the two intruders were acting in
      concert with each other.       After locating the money, both
      intruders fled ….

Id. (internal footnote omitted) (emphasis added).



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      “Proof of conspiracy is almost always extracted from circumstantial

evidence.” Hennigan, 753 A.2d at 253. Even if an explicit agreement to

commit a crime cannot be proven, “[t]he conduct of the parties and the

circumstances surrounding such conduct may create a web of evidence

linking the accused to the alleged conspiracy beyond a reasonable doubt.”

Devine, 26 A.3d at 1147. Moreover, “[e]ven if the conspirator did not act

as a principal in committing the underlying crime, he is still criminally liable

for the actions of his co-conspirators in furtherance of the conspiracy.”

Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012). Finally,

“this Court has repeatedly held that flight, along with other circumstantial

evidence, supports the inference of a criminal conspiracy.” Commonwealth

v. Marquez, 980 A.2d 145, 150 (Pa. Super. 2000). Flight from the scene of

the crime, when viewed in the totality of the circumstances, can be evidence

of consciousness of guilt and a desire to escape prosecution. Id.

      We conclude that the totality of the evidence, viewed in the light most

favorable to the Commonwealth, was sufficient to sustain Appellant’s

convictions for robbery and conspiracy to commit robbery, and that

Appellant’s sufficiency claims are frivolous. Finally, our review of the record

reveals no other potential, non-frivolous issues which Appellant could raise

on appeal. Accordingly, we grant counsel’s motion to withdraw.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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