J-S44010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JOSEPH AUSTIN,

                        Appellant                   No. 314 EDA 2016


     Appeal from the Judgment of Sentence Entered January 15, 2016
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003166-2014


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED NOVEMBER 14, 2017

      Appellant, Joseph Austin, appeals from the judgment of sentence of 25

to 50 years’ incarceration, imposed after he was convicted, following a non-

jury trial, of burglary, criminal trespass, terroristic threats, and simple

assault.   On appeal, Appellant seeks to challenge the sufficiency of the

evidence to sustain his burglary conviction, and the legality of a mandatory

minimum sentence imposed in his case.      Additionally, his counsel, Lauren

Baraldi, Esq., seeks to withdraw her representation of Appellant pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009).         After careful review, we affirm

Appellant’s judgment of sentence and grant counsel’s petition to withdraw.

      Attorney Baraldi summarizes the facts of Appellant’s case in her

Anders brief, as follows:
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     In February of 2014[,] Patrice Simmons was living with her
     children[,] Dshone Simmons [and] Mikell Simmons[,] in a one
     bedroom apartment … in Philadelphia. Ms. Simmons was in a
     relationship with [Appellant], whom she knew as Yusuf.
     [Appellant] did not live at that location, nor was he a signatory
     on the lease[,] but [he] was permitted to stay overnight a few
     nights a week.       At various points in their relationship[,
     Appellant] did have a key to the apartment. On February 26,
     2014[,] after an alleged verbal argument[,] Ms. Simmons told
     [Appellant] he was no longer welcome at the apartment. Both
     Patrice Simmons and Dshone Simmons testified that on that
     date, upon Ms. Simmons[’] direction, Dshone confronted
     [Appellant] and had the apartment key returned. In the early
     morning hours of February 27[], 2014, [Appellant] allegedly
     kicked the door to the apartment[,] splintering the wood[,] and
     the door frame tore away from the sheetrock. It was alleged
     that [Appellant] was agitated and yelling. Both Patrice and
     Dshone Simmons testified that after entering the apartment,
     [Appellant] struck Patrice Simmons. Ms. Simmons also testified
     that [Appellant] whispered[,] “I have a gun outside, I came here
     to kill you.”

Anders Brief at 3-4 (citations to the record omitted). Ultimately, Appellant

fell asleep on Ms. Simmons’ bed, and she was able to escape the apartment

with her children and call the police.     See Commonwealth’s Brief at 2-3

(citations to the record omitted).    Within twenty minutes of that call,

Appellant was arrested. Id. at 3.

     On November 12, 2015, Appellant was convicted, following a non-jury

trial, of the above-stated offenses. After the preparation of a presentence

report and a psychological examination, Appellant proceeded to a sentencing

hearing on January 15, 2016. At the close thereof, he was sentenced to a

mandatory term of 25 to 50 years’ incarceration for his burglary conviction,

pursuant to 42 Pa.C.S. § 9714(a)(2) (requiring a mandatory minimum

sentence of 25 years’ imprisonment where the defendant is convicted of a

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crime of violence, and he was previously convicted of two or more such

crimes arising from separate criminal episodes). His conviction of criminal

trespass merged for sentencing purposes, and he received no further penalty

for his convictions of terroristic threats and simple assault.

       Appellant filed a timely notice of appeal. The trial court then ordered

him to file a Pa.R.A.P. 1925(b) statement. His counsel responded by filing a

Rule   1925(c)(4)   statement,    indicating   her   intent   to   withdraw    from

representing Appellant. On November 14, 2016, Attorney Baraldi filed with

this Court a petition to withdraw as counsel and an Anders brief.             In her

brief, counsel addresses two issues Appellant seeks to raise on appeal - a

challenge to the sufficiency of the evidence to sustain his burglary

conviction, and a challenge to the legality of the mandatory minimum

sentence imposed in his case.

       On December 8, 2016, this Court issued a per curiam order directing

Attorney Baraldi to file “a letter addressed to Appellant advising him of his

immediate right to proceed pro se or with privately retained counsel….” Per

Curiam Order, 12/8/16 (emphasis added). Attorney Baraldi timely complied

with that order.    Appellant thereafter filed a pro se response to Attorney

Baraldi’s petition to withdraw, raising two additional claims. First, Appellant

contends that the trial court erred by denying his pre-sentence request for

new, court-appointed counsel.       Second, Appellant argues that his trial

counsel acted ineffectively by failing to present certain evidence at trial.




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     Before reviewing the merits of Appellant’s claims, we must first

evaluate Attorney Baraldi’s petition to withdraw.   See 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.

     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).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”    Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).


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      In this case, Attorney Baraldi’s Anders brief complies with the above-

stated requirements.      Namely, she includes a summary of the relevant

factual and procedural history, she refers to portions of the record that could

arguably support Appellant’s sentencing claim, and she sets forth her

conclusion that Appellant’s appeal is frivolous. She also explains her reasons

for reaching that determination, and supports her rationale with citations to

the record and pertinent legal authority. Attorney Baraldi has also supplied

Appellant with a copy of her Anders brief, and she sent him a letter

informing him of the rights enumerated in Nischan.        Accordingly, counsel

has complied with the technical requirements for withdrawal. We will now

independently review the record to determine if Appellant’s issues are

frivolous, and to ascertain if there are any other non-frivolous issues he

could pursue on appeal.

      Appellant first seeks to challenge the sufficiency of the evidence to

sustain his burglary conviction.

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn from that evidence, when viewed in the light
      most favorable to the Commonwealth as verdict winner, was
      sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (citation

omitted).


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      “[A] person commits the offense of burglary if, with the intent to

commit a crime therein, the person … enters a building or occupied

structure, or separately secured or occupied portion thereof that is adapted

for overnight accommodation in which at the time of the offense any person

is present[.]”   18 Pa.C.S. § 3502(a)(1)(ii).       Here, Appellant contends that

the Commonwealth failed to present any evidence to prove that Ms.

Simmons’      “apartment   was   sufficient   for   overnight   accommodations.”

Anders Brief at 6. Appellant further maintains that the Commonwealth did

not demonstrate that he had the intent to commit a crime inside the

apartment at the time he entered it. Id. at 6-7. Finally, Appellant argues

“that he was privileged to enter the apartment because Patrice Simmons had

previously furnished him with a key which gave him unfettered access to the

premises[,]” and because “he stayed at the apartment multiple times during

the week….” Id. at 7.

      We agree with Attorney Baraldi that Appellant’s sufficiency arguments

are frivolous.   First, “[t]o determine whether a structure is adapted for

overnight accommodation, a court considers ‘the nature of the structure

itself and its intended use, and not whether the structure is in fact

inhabited.”    Commonwealth v. Rivera, 983 A.2d 767, 779 (Pa. Super.

2009) (citation omitted).        Here, Ms. Simmons was asked on direct-

examination to describe how her apartment was “structured[,]” to which she

replied:




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     [Ms. Simmons]: It’s an apartment building. It has about four
     apartments, two on the second floor and two on the third floor.
     It’s a private entry. The apartment building is secured by a
     heavy metal door at street level, and then inside … you have
     your own private entrance to your apartment.

N.T. Trial, 11/12/15, at 9. Regarding the layout of her specific apartment,

Ms. Simmons testified:

     [Ms. Simmons]: It was a one-bedroom apartment, very, very
     small. So when you walk in, it would be a wall to the left and
     the bathroom would be straight in front of you. Directly next to
     the bathroom would be a small kitchen and then you had one
     room.

     …

     It was the living area, as well as a bedroom. It had a room
     divider in the middle to section off into bedrooms.

Id. at 9-10.

     We    conclude   that   Ms.   Simmons’   testimony   was   sufficient   to

demonstrate that her apartment was structured for use as an overnight

accommodation.    Notably, the apartment contained a bathroom, kitchen,

and bedroom. Additionally, the apartment was in a building containing three

other apartments.     The building had a street-level entrance, and Ms.

Simmons’ apartment also had a private, individual entrance that was clearly

able to be locked, as Appellant had to forcibly break down the door to gain

access to the home.      This evidence demonstrates that Ms. Simmons’

apartment was designed to be a private, secure dwelling used for overnight

accommodation.

     Second, Appellant contends that the evidence was insufficient to

demonstrate that he had the specific intent to commit a crime inside the

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apartment at the time he entered it. In Commonwealth v. Russell, 460

A.2d 316 (Pa. Super. 1983), we declared that, “[i]n order to be convicted of

burglary, the defendant must have formed the intent to commit a crime

when he entered the victim’s residence, not after he entered.” Id. at 321.

     In this case, the intent element of the burglary offense was sufficiently

proven. In particular, Ms. Simmons testified that earlier on the night of the

incident, Appellant had called her and “started making threats over the

phone….”    Id. at 13.   Later that night, she awoke to her son’s telling her

that Appellant was trying to get into the apartment.        Id. at 13.    Ms.

Simmons’ heard Appellant “banging” and “kicking” the door, and she then

heard the sound of “[w]ood splintering….” Id. at 14. Dshone Simmons also

testified that he heard Appellant “knocking and banging at the door[,]” and

“saying, ‘Open the door. Open the door.” Id. at 48. Dshone stated that he

heard Appellant kick the door in, and Appellant was “yelling profanities

towards [his] mom.” Id. at 48-49. In light of this testimony, we agree with

Attorney Baraldi that “[i]t was reasonable[,] given the totality of the

circumstances[, to infer] that [Appellant] had intended to terrorize and

threaten the occupants of the apartment because of the manner of entry.”

Anders Brief at 7; see also Russell, 460 A.2d at 321-22 (stating that the

specific intent for burglary “may be established by the defendant’s words or

inferred from his conduct or from the attendant circumstances.”) (citation

omitted).




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      Third, Appellant avers that, because he had a key to Ms. Simmons’

apartment and stayed there several nights a week, the Commonwealth failed

to rebut his affirmative defense that he was licensed and/or privileged to

enter the apartment.       See 18 Pa.C.S. 3502(b)(3) (“It is a defense to

prosecution for burglary if[,] … at the time of the commission of the

offense[,] … [t]he actor is licensed or privileged to enter.”).   We disagree

with Appellant’s argument. Even if Appellant had previously been licensed

or privileged to enter Ms. Simmons’ apartment, the Commonwealth’s

evidence established that that permission had clearly been revoked prior to

his entry on the night in question. Specifically, Ms. Simmons testified that

the day before the incident, she had an argument with Appellant and

informed him that she “did not want him there at [her] apartment anymore.”

Id. at 13. Later that night, Ms. Simmons instructed Dshone Simmons to get

the apartment key from Appellant. Id. at 51. Accordingly, Dshone went to

the store where Appellant was working and asked Appellant for the key. Id.

While Appellant first refused to give Dshone the key, he eventually turned it

over to Dshone. Id. at 51-52. This evidence was sufficient to prove that

Appellant was not licensed or privileged to enter Ms. Simmons’ apartment in

the early morning hours on the day after he returned the key to her

apartment, and she informed him that he was not welcome there anymore.

      Having found no merit to Appellant’s three claims regarding the

sufficiency of the evidence to sustain his burglary conviction, we agree with

Attorney Baraldi that Appellant’s first issue is frivolous.

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      Next, Appellant seeks to argue that the court illegally imposed a

mandatory    sentence   pursuant    to   42   Pa.C.S.   §   9714,   because   the

Commonwealth failed to provide proper notice of the applicability of that

provision, or prove that he had prior convictions triggering it.

      We conclude that both of Appellant’s arguments are frivolous. Prior to

trial, Appellant completed a written waiver of his right to a jury trial, which

explicitly stated that he would be subject to a 25-year mandatory minimum

sentence if he was convicted of burglary.       See Written Waiver Colloquy,

11/10/15, at ¶ 39.        Appellant indicated he understood the potential

applicability of that mandatory sentence by writing “yes” after that

paragraph of the colloquy, and by signing his name at the end of the

colloquy form.     See id. Additionally, the day before the sentencing

proceeding, the Commonwealth filed a “Sentencing Memorandum” again

stating that Appellant faced the mandatory minimum term of 25 years’

incarceration pursuant to 42 Pa.C.S. § 9714(a)(2).          See Commonwealth’s

Sentencing Memorandum, 1/14/16, at 3.          At the start of the sentencing

hearing, defense counsel confirmed that he had received and reviewed that

sentencing memorandum.       N.T. Sentencing, 1/15/16, at 7.        Based on this

record, we conclude that Appellant had reasonable notice of the applicability

of the mandatory sentence under 42 Pa.C.S. § 9714(a)(2).




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      We     also   conclude   that   the   Commonwealth presented sufficient

evidence to support the applicability of that mandatory-minimum sentencing

provision.     At   the   sentencing     hearing,   the   Commonwealth   detailed

Appellant’s two prior convictions which triggered the applicability of the ‘third

strike’ provision of section 9714(a)(2).             Id. at 8-9; 10-11.      The

Commonwealth also entered into evidence the sentencing memorandum that

outlined Appellant’s prior convictions. Id. at 10. Appellant did not challenge

the accuracy of his criminal record; thus, the court did not schedule a

hearing to admit further evidence regarding Appellant’s prior convictions.

See 42 Pa.C.S. § 9714(d) (“If the offender … contests the accuracy of the

record, the court shall schedule a hearing and direct the offender and the

attorney for the Commonwealth to submit evidence regarding the previous

convictions of the offender.”).       Thus, we conclude that the Commonwealth

presented sufficient evidence to demonstrate the applicability of section

9714(a)(2), and Appellant’s sentence under that provision is not illegal.

      In sum, we agree with Attorney Baraldi that the two issues she

addresses in her Anders brief are meritless. We now will examine the two

claims Appellant raises in his pro se response to counsel’s petition to

withdraw.

      First, Appellant contends that the trial court erred by denying his pre-

sentence motion for the appointment of new counsel.                 By way of

background, Appellant was represented by David Santee, Esq., at trial and


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at sentencing.    Prior to the sentencing hearing, Appellant filed a pro se

motion seeking, inter alia, a new court-appointed attorney.             At the

sentencing proceeding, the court addressed that motion, listening to

Appellant’s arguments that Attorney Santee had acted ineffectively at trial

by not presenting certain evidence, and that counsel continued to act

ineffectively by not presenting such evidence at the sentencing hearing.

See N.T. Sentencing Hearing, 1/15/16, at 18-20; 26-29.         Ultimately, the

court denied Appellant’s motion for a new attorney, concluding that Attorney

Santee could seek to withdraw after sentencing, and after filing a notice of

appeal on Appellant’s behalf. Id. at 31-32.

      Appellant now contends that the trial court erred in this decision. He

claims that because of the court’s decision, he “was denied counsel and thus

[was] denied a fair trial and an opportunity to present mitigating evidence at

the time of sentencing….”        Appellant’s Response to Petition to Withdraw,

3/13/17, at 2.

      Initially, we note that:

      “the right to appointed counsel does not include the right to
      counsel of the defendant's choice.” Commonwealth v.
      Albrecht, 554 Pa. 31, 720 A.2d 693, 709 (1998). Moreover,

         [w]hether to grant a defendant's petition to replace court
         appointed counsel is a decision which is left to the sound
         discretion of the trial court. As a general rule, however, a
         defendant must show irreconcilable differences between
         himself and his court appointed counsel before a trial court
         will be reversed for abuse of discretion in refusing to
         appoint new counsel.



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      Commonwealth v. Grazier, 391 Pa. Super. 202, 570 A.2d
      1054, 1055 (1990) (citations omitted). See also Pa.R.Crim.P.
      Rule 122(C) (“A motion for change of counsel by a defendant for
      whom counsel has been appointed shall not be granted except
      for substantial reasons.”).

Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007)

      Here, we first point out that Appellant did not move for new counsel

until after his trial; thus, he cannot now claim that the court’s denial of that

motion denied him a fair trial. Additionally, Appellant has not demonstrated

that the court abused its discretion by refusing to remove Attorney Santee

before Appellant’s sentencing. Appellant’s argument in support of his motion

for new counsel focused primarily on asserting that Attorney Santee had

acted ineffectively at trial. See N.T. Sentencing at 26-29. Appellant at no

point identified what ‘irreconcilable differences’ existed between himself and

Attorney Santee at the time of Appellant’s sentencing, so as to warrant the

appointment of new counsel. See Grazier, 570 A.2d at 1055.

      Appellant also does not identify what mitigating evidence Attorney

Santee failed to present at the sentencing hearing that would have resulted

in a reduced sentencing.     Indeed, the court imposed the most mitigated

sentence it possibly could, as it was required to sentence Appellant to the

mandatory term of 25 years’ incarceration for his burglary offense, and the

court did not impose any additional sentence for his remaining convictions.

In light of this record, Appellant has failed to prove that the court abused its




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discretion in denying his pre-sentence motion for the appointment of new

counsel.

      In Appellant’s second pro se issue, he seemingly argues that Attorney

Santee acted ineffectively at trial by not presenting certain evidence.    See

Appellant’s “Application for Remand and New Counsel or Writ of Habeas

Corpus or New Trial Pursuant to Pa.R.A.P. 123,” 3/15/17 (attached to

Appellant’s “Answer to Application to Withdraw as Counsel” filed on March

15, 2017).    In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our

Supreme Court reaffirmed its prior holding in Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of

ineffective assistance of counsel should be deferred until collateral review

under the PCRA.     Holmes, 79 A.3d at 576.         The specific circumstances

under which ineffectiveness claims may be addressed on direct appeal are

not present in the instant case.    See id. at 577-78 (holding that the trial

court may address claim(s) of ineffectiveness where they are “both

meritorious and apparent from the record so that immediate consideration

and relief is warranted,” or where the appellant’s request for review of

“prolix” ineffectiveness claims is “accompanied by a knowing, voluntary, and

express waiver of PCRA review”).       Accordingly, Appellant must wait until

collateral review to assert his ineffective assistance of counsel claim.

      In sum, we conclude that the issues raised in Attorney Baraldi’s

Anders brief, and in Appellant’s pro se response thereto, are frivolous.


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Additionally, our review of the record reveals no other non-frivolous issues

that Appellant could raise herein.     Therefore, we affirm his judgment of

sentence and grant Attorney Baraldi’s petition to withdraw.

      Judgment of sentence affirmed.          Petition to withdraw granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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