J-S11033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DENNIS EDWARD YORK                         :
                                               :
                      Appellant                :   No. 1124 WDA 2016

              Appeal from the Judgment of Sentence July 14, 2016
                 In the Court of Common Pleas of McKean County
              Criminal Division at No(s): CP-42-CR-0000146-2016,
                             CP-42-CR-0000635-2015



BEFORE:        OLSON, RANSOM, JJ., and STEVENS, P.J.E.*


MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 28, 2017

        Appellant Dennis Edward York appeals from the judgment of sentence

entered in the Court of Common Pleas of McKean County on July 14, 2016,

following his jury trial convictions of one count each of Kidnapping,1

Aggravated Assault,2 Unlawful Restraint,3 Simple Assault,4 Indecent Assault,5

Summary Harassment,6 and Person not to Possess a Firearm.7 Appellant’s

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. 2901(a)(3).
2
    18 Pa.C.S.A. 2702(a)(1).
3
    18 Pa.C.S.A. 2902(a)(1).
4
    18 Pa.C.S.A. 2701(a)(1).
5
    18 Pa.C.S.A. 3126(a)(2).
6
    18 Pa.C.S.A. 2709(a)(1).
7
    18 Pa.C.S.A. 6105(a)(1).
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counsel also has filed an Anders8 brief together with a petition to withdraw

as counsel.     Following our review, we grant counsel’s petition to withdraw

and affirm Appellant’s judgment of sentence.

        At trial, Tanya York testified that on September 30, 2015, she and

Appellant, her husband, had been separated and she had been seeing

another man. N.T., 4/11/16, at 9, 15. Despite the fact that Ms. York had

been involved in a relationship with someone else, Appellant continued to

reside with Ms. York because he “wouldn’t leave.” Id. at 15. That evening,

Ms. York had been drinking alcohol in a bar in Eldred, although she was not

intoxicated. Id. At approximately 10:00 p.m., Appellant arrived at the bar

and drove Ms. York home. Id. at 13.

        When they reached the front door, Appellant grabbed Ms. York by the

hair and told her they were “going to f’n talk.” Appellant dragged her back

to his Jeep, physically put her in the passenger side, and drove off in the

dark. Id. The drive lasted approximately ten to fifteen minutes, and Ms.

York ultimately realized she was in an unfamiliar wooded area. Id. at 14.

Appellant parked the vehicle and repeatedly struck Ms. York in the face and

the back of her head as he questioned her as to why she had been seeing

another man.        Id. at 15.      Appellant demanded that Ms. York call the

individual and tell him their relationship was over.     Frightened, Ms. York


____________________________________________


8
    Anders v. California, 386 U.S. 738 (1967)



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wanted to comply; however, due to the stress of the situation, Ms. York had

forgotten the person’s phone number.             Each time she stated the phone

number incorrectly, Appellant “backhanded” her in the face. Id.          Appellant

continuously drank alcohol throughout the time he and Ms. York were in the

secluded, wooded area. Id. at 20.

       Appellant told Ms. York he was going to leave her in the woods for the

bears and violently attempted to pull her from the Jeep by her arms and

hands. Id. at 15, 22. When Ms. York resisted, he choked her. Id. at 15-

16. Appellant continued to hit Ms. York in the back of the head and punch

her in the face until approximately 5:00 a.m. He also kicked her in the side

when he pulled her out of the vehicle and picked her up by her hair.          Ms.

York described his treatment as terrorizing. Id. at 16-17, 22. As a result of

her very painful injuries, Ms. York suffered numerous bruises, a fractured

shoulder and a concussion. Id. at 16, 23.

       Immediately after Appellant brought Ms. York back to her home, he

disrobed and had non-consensual sex with her.           Id. at 24-25.9   The next

morning after her daughter had gone to school, Ms. York told Appellant to

leave the home immediately. Appellant apologized for the incident and left

willingly. Id. at 26. Ms. York’s daughter called her and explained she was


____________________________________________


9
 Specifically, Ms. York testified that she “didn’t agree or disagree” to have
sexual relations with Appellant and did not attempt to resist him because
she “was exhausted[,] numb[,] [and] had no more fight in [her].” Id. at 25.



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too upset to stay at school. Ms. York picked up her daughter and the two

proceeded to the hospital. Id. at 28.

        Medical personnel testified regarding Ms. York’s injuries.            Stephanie

Schmieg, a physician assistant working in the emergency room of the

Bradford Regional Medical Center, testified that she treated Ms. York on

October 1, 2015. At that time, Ms. York complained of pain and bruising on

her face and discomfort in her throat and neck area.               Id. at 58-59.    Ms.

Schmieg observed bruises on Ms. York’s right eye, lips, right arm, right

elbow and left arm.        She also noticed redness on the front of Ms. York’s

neck.     Id. at 59.      Ms. Schmieg ultimately diagnosed Ms. York with a

concussion and multiple contusions. Id. at 62.

        Dr. Henri Lamothe provided an expert opinion and diagnosis regarding

Ms. York’s injuries and treatment.             Id. at 68.   Dr. Lamothe explained Ms.

York presented with numerous complaints including headache, dizziness, and

multiple bruises. Id. at 70. Dr. Lamothe opined Ms. York had suffered an

“aggravated assault,” concussion and multiple contusions. Id. at 71-74, 78.

        Criminal investigator Pennsylvania State Trooper Mary Gausman

testified that on October 26, 2015, she received a report of a violent incident

regarding Ms. York         and    Appellant       from Trooper    Conner 10   who   had

interviewed Ms. York previously.          Trooper Gausman interviewed Ms. York


____________________________________________


10
     Trooper Conner’s first name is not apparent from the record.



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who told her “[b]asically everything that she said on the stand today.” Id.

at 82-83. In addition, Ms. York informed Trooper Gausman Appellant had a

gun. The parties stipulated on the record that Appellant had been convicted

of a prior offense the result of which he was prohibited from possessing a

firearm. Id. at 93, 95.

     Ms. York’s fifteen-year-old daughter B.P. testified that on September

30, 2015, she had texted Appellant to inquire about her mother’s

whereabouts. Appellant responded he did not know where Ms. York was and

that he was alone drinking beer. Appellant said he suspected Ms. York was

at her “other boyfriend’s” home. Id. at 109-110. B.P. was awake at 5:00

a.m., although she did not see her mother enter with Appellant. She had

been lying in Ms. York’s bed when Appellant came in and told her to, “Go the

F upstairs.” Id. at 116. B.P. later heard Appellant tell Ms. York he “fisted”

her because he was unable to do so in the Jeep. Id. at 117.

      The first time B.P. saw her mother was when she woke up for school

around 6:00-6:30 a.m. on October 1, 2015.      B.P. first heard Ms. York say,

“[Y]ou were going to let me get eaten by the bears,” and Appellant calmly

denied the statement. Id. at 115. B.P. next observed that her mother was

clad only in a robe, although she would not normally dress that way, and

that she was bloody, bruised and dirty. Id. at 113. B.P. noticed handprints

on Ms. York’s neck and heard Appellant admit to having sex with her

mother. Id. at 116-117.




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      Ms. Kelly Kroah, the girlfriend of Appellant’s nephew, testified she is a

manager of the Ole Blue bar in Eldred and knows both Appellant and Ms.

York. N.T., 4/12/16, at 9. Ms. Kroah explained that Ms. York became “very

intoxicated” on September 30, 2015, and at one point fell on the dance

floor. This prompted Ms. Kroah to call Appellant to pick up Ms. York. Ms.

York needed Ms. Kroah’s assistance to walk out of the bar, and she stumbled

as she tried to get into Appellant’s vehicle. Id. at 10. Ms. Kroah stated Ms.

York cut her lip when she fell off her barstool and onto the floor. Id. at 11.

      Appellant testified in his own defense and stated that Ms. York’s prior

testimony had been inaccurate.     N.T., 4/12/16, at 26. Appellant explained

that on September 30, 2015, Ms. Kroah sent him a text message wherein

she asked him to come to the Blue Bar to pick up Ms. York who was

intoxicated. Id. at 27. He stated that when he arrived, he noticed Ms. York

had a bloody lip and that she was limping, and she continued to stumble as

he and Ms. Kroah attempted to get her in the passenger side of his Jeep.

Id. at 30-31.   Appellant related that as the pair was returning home, Ms.

York, “giggling and carrying on in the passenger seat,” suggested that they

proceed to “the lookout” to “watch the stars,” as they had several times

before. Id. at 33-34. Appellant pulled his vehicle into the wooded area, and

the two leaned against the front end of the Jeep while Ms. York drank beer

alone, as he does not drink alcohol. Id. at 35-36, 44.

      Appellant maintained he did not inflict any of Ms. York’s bruises and

explained that she sustained the injuries to her mouth from her fall in the

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bar and the others when she fell down a hill in the woods while urinating.

Id. at 37-39. Appellant added he had difficulty helping Ms. York up, as her

pants were around her ankles, and he was forced to grab her by the arms

and wrists to pull her backwards over the hill.     Id. at 38-39. Appellant

estimated it had taken him approximately twenty minutes to get Ms. York to

the top of the embankment. Appellant “dusted her off,” after which Ms. York

indicated she wanted to stay and drink some more beer, and Appellant

agreed. Id. at 40. The two reminisced about past experiences, as Appellant

had planned to move out of the home the next day. Id. at 42.

      At some point, Ms. York fell over the bank two more times, and after

the third fall, Appellant decided it was time to bring her home.    Appellant

claimed he never had sexual relations with Ms. York that evening. Id. at 43.

Appellant said Ms. York did not want a divorce, and that she had helped him

move his belongings out of the home the next day.          Id. at 45, 50-51.

Appellant also denied the pistol in the courtroom belonged to him and

represented that he never had owned a firearm. Id. at 48.

      Ms. York presented rebuttal testimony at which time she denied ever

needing help to Appellant’s Jeep on September 30, 2015.       Id. at 63. She

indicated that she had a conversation with Ms. Kroah following the latter’s

testimony that day at which time Ms. Kroah told Ms. York she loved her and

“it was nothing personal.” Id. She denied ever going to the Rock City hill

overlook to “stargaze” with Appellant, and she stated he had never picked

her up at the Blue Bar before that evening, as it is located only a block from

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her home.        Id. at 64-65.         She stressed she did not fall down an

embankment, but rather was beaten by Appellant “for hours on end.” Id. at

65.

       On July 15, 2016, Appellant was sentenced to an aggregate term of

thirty (30) years to sixty (60) years in prison.          Appellant was also

determined to be a Tier I sex offender and required to register under

Megan’s Law for a period of fifteen (15) years.

       Appellant filed a timely notice of appeal on August 4, 2016. On August

9, 2016, the trial court ordered Appellant to file a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

filed a motion for extension of time in which to file the same, and in lieu of

filing a concise statement, on September 26, 2016, counsel filed a notice of

intent to file an Anders brief with this Court pursuant to Pa.R.A.P.

1925(c)(4).11     On December 12, 2016, counsel filed a brief pursuant to

Anders and its Pennsylvania counterpart Commonwealth v. Santiago,




____________________________________________


11
    In response to this notice, on October 28, 2016, the trial court filed an
order wherein it noted counsel’s intention to withdraw and directed the Clerk
of Courts to transmit the record to the Superior Court. We caution that the
filing of a statement of intent to withdraw as counsel pursuant to Anders
and Rule 1925(c)(4) does not necessarily relieve the trial court of its duty to
provide the rationale for its decision under Rule 1925(a)(1); however, as we
are able to discern from the record the reasons for the trial court’s order and
the issue Appellant presents on appeal, we refrain from remanding for a
thorough Rule 1925(a) opinion.



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602 Pa. 159, 978 A.2d 349 (2009)12 together with an application to

withdraw as counsel. Appellant has filed no further submissions either pro

se or through privately-retained counsel. The Commonwealth filed a letter

in lieu of a brief with this Court on December 22, 2016.

        Before addressing the question raised on appeal, we must first resolve

counsel's petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). See also Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen 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.”). There

are procedural and briefing requirements imposed upon an attorney who

seeks to withdraw on 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.




____________________________________________


12
   Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.



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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders 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.


Santiago, supra at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her 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). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287,

1290 (Pa.Super. 2007).

      Herein, counsel contemporaneously filed his Motion to Withdraw and

an Anders brief. The motion states counsel's determination that no non-

frivolous appellate issues exist. See Motion to Withdraw at ¶ 3. The Motion

further explains that counsel notified Appellant of the withdrawal request

and forwarded a copy of the brief to Appellant together with a letter



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explaining his right to proceed pro se or with new, privately-retained counsel

to raise any additional points or arguments that Appellant believed had

merit. See id. at ¶ 4; see also Letter to Appellant, dated December 9,

2016.

        In the Anders brief, counsel provides a detailed summary of the facts

and procedural history of the case with citations to the record, refers to

evidence of record that might arguably support the issue raised on appeal

challenging the sufficiency of the evidence, provides citations to relevant

case law, and states his conclusion that the appeal is wholly frivolous and his

reasons therefor. See Anders brief at 3-5. Accordingly, counsel has

substantially complied with the requirements of Anders and Santiago. As

Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the Anders brief wherein counsel presents the

following question for this Court’s review:   “Was the evidence sufficient to

support the jury’s verdict?” Anders brief at 3.

        The standard of review for a challenge to the sufficiency of the

evidence is as follows:

        In determining whether the evidence was sufficient to support a
        defendant's conviction, we must review the evidence admitted
        during the trial along with any reasonable inferences that may
        be drawn from that evidence in the light most favorable to the
        Commonwealth as the verdict winner. If we find, based on that
        review, that the jury could have found every element of the
        crime beyond a reasonable doubt, we must sustain the
        defendant's conviction.

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Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (citation

omitted).

     Appellant was convicted of the following seven, statutorily defined

crimes:

     Kidnapping

     (a) Offense defined.-- Except as provided in subsection (a.1),
     a person is guilty of kidnapping if he unlawfully removes another
     a substantial distance under the circumstances from the place
     where he is found, or if he unlawfully confines another for a
     substantial period in a place of isolation, with any of the
     following intentions:
          (3) To inflict bodily injury on or to terrorize the victim or
     another.

18 Pa.C.S.A. § 2901(a)(3).

     Aggravated Assault

     (a) Offense defined.--A person is guilty of aggravated assault
     if he:
         (1) attempts to cause serious bodily injury to another, or
     causes such injury intentionally, knowingly or recklessly under
     circumstances manifesting extreme indifference to the value of
     human life[.]

18 Pa. C.S.A. § 2702(a)(1).

     Unlawful restraint

     (a) Offense defined.-- Except as provided under subsection
     (b) or (c), a person commits a misdemeanor of the first degree if
     he knowingly:
         (1) restrains another unlawfully in circumstances exposing
     him to risk of serious bodily injury[.]

18 Pa.C.S.A. § 2902(a)(1).

     § 2701. Simple assault

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     (a) Offense defined.-- Except as provided under section 2702
     (relating to aggravated assault), a person is guilty of assault if
     he:
         (1) attempts to cause or intentionally, knowingly or
     recklessly causes bodily injury to another[.]

18 Pa.C.S.A. § 2701(a)(1).


     § 3126. Indecent assault

     (a) Offense defined.--A person is guilty of indecent assault if
     the person has indecent contact with the complainant, causes
     the complainant to have indecent contact with the person or
     intentionally causes the complainant to come into contact with
     seminal fluid, urine or feces for the purpose of arousing sexual
     desire in the person or the complainant and:
         (2) the person does so by forcible compulsion[.]

18 Pa.C.S.A. § 3126(a)(2).


     § 2709. Harassment

     (a) Offense defined.--A person commits the              crime of
     harassment when, with intent to harass, annoy           or alarm
     another, the person:
        (1) strikes, shoves, kicks or otherwise subjects     the other
     person to physical contact, or attempts or threatens    to do the
     same[.]

18 Pa.C.S.A. § 2709(a)(1).

     § 6105. Persons not to possess, use, manufacture,
     control, sell or transfer firearms

     (a) Offense defined.--
        (1) A person who has been convicted of an offense
     enumerated in subsection (b), within or without this
     Commonwealth, regardless of the length of sentence or whose
     conduct meets the criteria in subsection (c) shall not possess,
     use, control, sell, transfer or manufacture or obtain a license to


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      possess, use, control, sell, transfer or manufacture a firearm in
      this Commonwealth.


18 Pa.C.S.A. § 6105(a)(1).

      Instantly, viewing all of the evidence in the light most favorable to the

Commonwealth as the verdict winner, we find there was sufficient evidence

for the jury to find that Appellant forced Ms. York into his vehicle against her

will and drove her to an unknown location in a wooded area.           Appellant

terrorized Ms. York by threatening to leave her alone in the secluded area.

He slapped, punched, kicked and choked her over a period of hours resulting

in her sustaining a concussion and multiple contusions.        When Appellant

finally returned Ms. York to her home, he had non-consensual sex with her.

In addition, he was in possession of a firearm, although as a convicted felon

he was prohibited from doing so.      Thus, there was sufficient evidence to

enable the fact-finder to find every element of Appellant's crimes beyond a

reasonable doubt, and a challenge to the sufficiency of the evidence would

be frivolous.

      Petition to withdraw as counsel granted.         Judgment of sentence

affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017




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