J-S57036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
              v.                          :
                                          :
EUGENE REAGAN,                            :
                                          :
                   Appellant              :           No. 647 EDA 2017

            Appeal from the Judgment of Sentence October 4, 2016
              in the Court of Common Pleas of Delaware County,
              Criminal Division, No(s): CP-23-CR-0005918-2015

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 18, 2017

        Eugene Reagan (“Reagan”) appeals from the judgment of sentence

imposed following his conviction of two counts of recklessly endangering

another person, and one count each of attempted murder, aggravated

assault, and firearms not to be carried without a license.1     Additionally,

Reagan’s counsel, James Brose, Esquire (“Attorney Brose”), has filed a

Motion to Withdraw as Appellate Counsel, as well as a brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967) (hereinafter the “Anders

Brief”). We grant Attorney Brose’s Motion to Withdraw, and affirm Reagan’s

judgment of sentence.

        In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 4/6/17, at 1-13.



1
    See 18 Pa.C.S.A. §§ 2705, 901(a), 2501(a), 2702(a)(1), 6106(a)(1).
J-S57036-17


      On July 22, 2016, a jury convicted Reagan of the above-referenced

crimes.      On October 4, 2016, the trial court sentenced Reagan to an

aggregate prison term of 15 to 30 years. Reagan filed a pro se Motion to

reconsider sentence. The trial court thereafter appointed Attorney Brose as

Reagan’s counsel.     On February 7, 2017, the trial court denied Regan’s

Motion to reconsider sentence. Reagan filed a timely Notice of Appeal, and a

court-ordered Concise Statement of matters complained of on appeal.

However, in lieu of filing a brief on Reagan’s behalf, Attorney Brose filed an

Anders brief.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, he must do the

following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.




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2009), our Supreme Court addressed the second requirement of Anders,

i.e., the contents of an Anders brief, and required that the brief

      (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.       “Once counsel has satisfied the [Anders]

requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.”     Edwards, 906 A.2d at 1228

(citation omitted).

      Here, Attorney Brose has complied with each of the requirements of

Anders.     Attorney Brose indicates that he conscientiously examined the

record and determined that an appeal would be frivolous. Further, Attorney

Brose’s Anders brief comports with the requirements set forth in Santiago.

Finally, the record includes a copy of the letter that Attorney Brose sent to

Reagan, advising him of his right to proceed pro se or retain alternate

counsel and file additional claims, and stating Attorney Brose’s intention to

seek permission to withdraw. Thus, Attorney Brose has complied with the



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procedural requirements for withdrawing from representation. Accordingly,

we will conduct an independent review to determine whether Reagan’s

appeal is, in fact, wholly frivolous.

      The first issue raised in the Anders brief is whether the trial court

erred by granting the Commonwealth’s Motion in limine to limit testimony

regarding prior incidents between Reagan and his ex-wife, Margaret Giles

(“Giles”). Anders Brief at 3. Attorney Brose points to the trial court’s ruling

that Reagan could not testify about incidents with Giles that had occurred

more than one year prior.         Id. at 4.   Attorney Brose contends that

challenging the court’s ruling would be useless because Reagan did not claim

self-defense; the incidents with Giles were not criminal events; and the

victim, Gary Hudson (“Hudson”), was not deceased.        Id.   Attorney Brose

also points to Reagan’s claim that the gun went off “accidentally,” and

argues that such claim rendered any prior disputes between him and Giles

irrelevant. Id. at 5. Finally, Attorney Brose asserts that, even if the trial

court erred in limiting the testimony, such error was harmless, as the

evidence of Reagan’s guilt was overwhelming. Id.

      In its Opinion, the trial court addressed this issue, set forth the

relevant law, and determined that the issue lacked merit. See Trial Court

Opinion, 4/6/17, at 19-20; see also id. at 21 (wherein the trial court

determined that even if its ruling was in error, such error was harmless, as

the evidence of Reagan’s guilt was overwhelming). We agree with the trial



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court’s determination, and affirm on this basis as to the first issue raised in

the Anders brief. See id.

      The second issue raised in the Anders brief is whether the trial court

erred by denying Reagan’s Motion in limine to preclude Timothy Bates

(“Bates”) from providing testimony that differed from his statement to

police.   Anders Brief at 5.        According to Attorney Brose, “the only

discrepancy in the [trial] testimony of [] Bates versus his prior statement

was that he saw [Reagan] approach the car where the shooting occurred

after he had walked back to his truck. Id. at 6. Attorney Brose points out

that Bates consistently stated that he saw Reagan approach the car and

shoot into it. Id. Finally, Attorney Brose asserts that the defense had the

opportunity to cross-examine Bates about the discrepancy, and the jury had

the ability to assess his credibility. Id.

      In its Opinion, the trial court addressed this issue, set forth the

relevant law, and determined that the issue lacked merit. See Trial Court

Opinion, 4/6/17, at 20; see also id. at 21 (wherein the trial court

determined that even if its ruling was in error, such error was harmless, as

the evidence of Reagan’s guilt was overwhelming). We agree with the trial

court’s determination, and affirm on this basis as to the second issue raised

in the Anders brief. See id.

      The third issue raised in the Anders brief is whether the trial court

erred in making its rulings regarding Reagan’s expired license to carry a



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firearm. Anders Brief at 6-7. According to Attorney Brose, the trial court

initially precluded testimony regarding the expired license, but ultimately

permitted Reagan to testify about the license, and allowed the license to be

admitted as a defense exhibit. Id. at 7.

      In its Opinion, the trial court addressed this issue, set forth the

relevant law, and determined that the issue lacked merit. See Trial Court

Opinion, 4/6/17, at 20-21; see also id. at 21 (wherein the trial court

determined that even if its ruling was in error, such error was harmless, as

the evidence of Reagan’s guilt was overwhelming). We agree with the trial

court’s determination, and affirm on this basis as to the third issue raised in

the Anders brief. See id.

      The fourth issue raised in the Anders brief is whether the trial court

erred when it instructed the jury as to “flight as consciousness of guilt.”

Anders Brief at 7. Attorney Brose claims that there is no dispute that, after

the shooting, Reagan got in his truck and drove away from the crime scene.

Id. Attorney Brose further claims that the trial court’s instruction was taken

directly from the model jury instructions on flight as consciousness of guilt.

Id.

      In its Opinion, the trial court addressed this issue, set forth the

relevant law, and determined that the issue lacked merit. See Trial Court

Opinion, 4/6/17, at 21-24.    We agree with the trial court’s determination,




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and affirm on this basis as to the fourth issue raised in the Anders brief.

See id.

      The final issue raised in the Anders brief is whether the evidence was

sufficient to support Reagan’s convictions. Anders Brief at 8. According to

Attorney Brose, consistent credible testimony from several witnesses, and

video evidence from the bar, placed Reagan at the scene of the shooting.

Id. Attorney Brose indicates that Reagan admitted that he approached the

car, but claimed that the gun had gone off “accidentally.”       Id.   Attorney

Brose asserts that “the only issue for the jury was whether [] Reagan had

the intent to fire that gun and injure or kill [] Hudson.” Id. Attorney Brose

contends that the Commonwealth presented the uncontradicted testimony of

Detective Louis Gandizio, who testified that the gun in question would not

have accidentally fired by banging it on a car window, and would only have

discharged by someone pulling the trigger. Id. at 8 (citing N.T., 7/21/16, at

286-87). Attorney Brose argues that this evidence, when viewed in the light

most favorable to the Commonwealth as the verdict winner, was sufficient to

support the verdict. Id. at 9.

      In its Opinion, the trial court addressed this issue, set forth the

relevant law, and determined that the issue lacked merit. See Trial Court

Opinion, 4/6/17, at 14-19.       We agree with the trial court’s determination,

and affirm on this basis as to the fourth issue raised in the Anders brief.

See id.



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     Based on our independent review of the record, we conclude that all of

the issues raised in the Anders brief are, in fact, wholly frivolous. Having

found no other non-frivolous issues during our review, we grant Attorney

Brose’s Motion to Withdraw, and affirm Reagan’s judgment of sentence.

     Motion to Withdraw granted; judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/18/2017




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