J-568018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

V.

WARREN D. EASLEY

 

Appe||ant No. 1868 WDA 2015

Appeal from the Judgment of Sentence dated October 13, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-OOOOO71-2015

BEFORE: sHoGAN, J., sol_ANo, J., and sTRAssBuRGER, J.*
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 08, 2016
Appe||ant Warren D. Easley appeals from the judgment of sentence
imposed after a jury convicted him of one count of aggravated assault and
two counts of aggravated harassment by a prisoner.1 With this appeal,
Appe||ant's counsel has filed a petition to withdraw and an Anders2 brief,
stating that the appeal is wholly frivolous. After careful review, we affirm
and grant counsel's petition to withdraw.
The facts underlying this appeal are as follows. On July 10, 2014,

Appe||ant, while an inmate at the State Correctional Institution (“SCI") at

 

* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a)(3) and 2703.1, respectively.

2 Ander$ v. California, 386 U.S. 738 (1967).

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Albion, punched a correctional officer in the head on the way to his violence
prevention group. Trial Court Opinion, 1/12/16, at 1 (citing N.T., 7/22/15,
at 36-37). Later that same day, Appe||ant spat in the face of a prison nurse.
Id. (citing N.T., 7/22/15, at 48). Two days later, he spat on another
correctional officer. Id. (citing N.T., 7/22/15, at 55).

In April 2015,3 a transportation order was entered for the Sheriff of
Erie County to convey Appe||ant from SCI Fracl<ville4 to the Erie County Jail
in order to appear in court with respect to the July 2014 offenses. On
April 29, 2015, the administrative assistant to the warden of SCI Frackville
contacted personnel at the Sheriff's Office and told them that Appe||ant was
refusing to be transported to Erie to stand trial. Commonwealth's EXhibit A-
2, 7/22/15; N.T., 7/22/15, at 5, 9. Notwithstanding this information, two
sheriff's deputies went to SCI Frackville on April 30, 2015 and were again
informed that Appe||ant refused to be transported to appear in court. On
May 5, 2015, the Commonwealth filed a motion to continue the trial, which

was granted by the trial court the next day.

 

3 The exact date of the order cannot be read in the certified record. The
order was date-stamped by the Clerk of Records on April 21, 2015 and
entered on the docket on that date.

4 Although the record is not clear, it appears that at some time between July
2014 and April 2015, Appe||ant was transferred from SCI Albion to SCI
Frackville.

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Two more transportation orders were entered on June 18, 2015 and
July 2, 2015. On July 16, 2015, two sheriff's deputies again travelled to SCI
Frackville to escort Appe||ant to Erie County. They were informed that,
shortly before they arrived, Appe||ant had punched the light in his cell,
causing a cut to himself that bled. Appe||ant then called out to a correctional
officer and said, “I cut up. See this is the s--- I have to deal with. I'm done.
I'm done talking, get the f--- away from my door.” Appe||ant then threw a
mixture of blood and milk under his cell that struck the correctional officer
on both shoes and part of his legs. Trial Court Opinion, 1/12/16, at 3; N.T.,
7/22/15, at 5-6, 9.

Thereafter, Appe||ant told the sheriff's deputies that he was willing to
go to court but that he refused to wear his prison uniform while travelling.
Trial Court Opinion, 1/12/16, at 3-4; N.T., 7/22/15, at 7, 9. The trip from
SCI Frackville to Erie lasts about five hours, requiring stops for food, fuel,
and bathroom use. Trial Court Opinion, 1/12/16, at 4. After consulting with
the district attorney and the correctional officers, the Erie County sheriff's
deputies cancelled the transport orders.

Later that day, the Commonwealth moved for a trial in absentia, which
the Honorable Shad Connelly granted by an order dated that same day.
Immediately before the commencement of the jury trial on July 22, 2015,
the trial court judge, the Honorable John Garhart, reviewed the history of

this case on the record and concurred with Judge Connelly's order. In a Rule

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1925 opinion, Judge Garhart later stated: “Appellant has waived his
constitutional right to be present for trial. Accordingly, his allegations to the
contrary are meritless." Trial Court Opinion, 1/12/16, at 4.

On July 22, 2015, following a trial by jury, Appe||ant was convicted in
absentia of the aforementioned offenses. On October 13, 2015, the trial
court sentenced Appe||ant to an aggregate 18-36 months' incarceration, to
be served consecutively to the sentence for which he was already confined.

On October 19, 2015, Appe||ant filed a post-sentence motion, which
the trial court denied on October 27, 2015. On November 23, 2015,
Appe||ant filed this timely appeal. On appeal, Appe||ant presents a single
issue for our review:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

GRANTING THE COMMONWEALTH'S MOTION FOR TRIAL IN

ABSENTIA.

Anders Brief, at 3. In connection with this appeal, Appe||ant's counsel has
also filed her petition to withdraw and her Anders brief.5

“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. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (internal citation omitted). An Anders brief shall comply with the

 

5 Appellate counsel formally filed her petition to withdraw as counsel on
May 25, 2016. Appe||ant has not filed a pro se response to the petition to
withdraw. On July 18, 2016, the Commonwealth sent a letter to this Court
stating that it did not intend to file a responsive brief.

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requirements set forth by the Supreme Court of Pennsylvania in

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009):
[W]e hold 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.

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client:

Counsel must also 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 the

Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above 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." Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,

“this Court must conduct an independent review of the record to discern if

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|II
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there are any additional, non-frivolous issues overlooked by counse
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnotes and citations omitted).

Here, counsel has provided a copy of her May 23, 2016
correspondence to Appe||ant, which shows that counsel provided a copy of
the Anders Brief to Appe||ant and advised Appe||ant of his right either to
retain new counsel or proceed pro se on appeal to raise any points he deems
worthy of the court's attention. Further, counsel's Anders Brief, also dated
May 23, 2016, complies with prevailing law in that counsel has provided a
procedural and factual summary of the case with references to the record.
Counsel additionally advances relevant portions of the record that could
arguably support Appe||ant's claims on appeal.

Ultimately, counsel cites her reasons and conclusion that Appe||ant's
case “presents no non-frivolous issues for review”:

In the present case, there is indeed cause for the trial court to

grant the Commonwealth's Motion to Try in Absentia. . . . [T]he

Commonwealth produced ample evidence of the security risk

transporting the Appe||ant posed. As noted in the record, the

Appe||ant was a security and flight risk as well as a danger to

himself. The risk of transport was well-documented in

[Department of Corrections] records . . . where the Appe||ant

was housed in the most secure housing - in the RHU [restricted

housing unit]. The risk of taking him out of a secure setting and

transporting him across the state was large. In addition, the

Appe||ant had, on numerous occasions, refused and even

sabotaged his opportunity to be transported to Erie County on

three separate occasions. The fact that the Appe||ant
subsequently expressed his desire to be transported to stand

trial was not enough to [allay] the fear and risk of transporting

him.

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Anders Brief, at 6-7. In light of the foregoing, we conclude that counsel's
petition to withdraw and her Anders brief comply with the requirements of
Santiago and Orellana. As a result, we proceed to conduct an independent
review to ascertain if this appeal is indeed wholly frivolous.

"A defendant's right to be present at trial is guaranteed by the Sixth
Amendment to the United States Constitution; by Article I, Section 9 of the
Pennsylvania Constitution; and by Pennsylvania Rule of Criminal Procedure
602(A)." Commonwealth v. Faulk, 928 A.2d 1061, 1065 (Pa. Super.
2007) (citation omitted). However, "[t]he right may be waived either
impliedly, via the defendant's actions, or expressly." Id. As such, a
“defendant's absence without cause at the time scheduled for the start of
trial . . . shall not preclude proceeding with the trial, including the return of
the verdict and the imposition of sentence." Pa.R.Crim.P. 602(A). The
decision to proceed in absentia is within the trial court's discretion. As the
Supreme Court of Pennsylvania stated in Commonwealth v. Wilson, 712
A.2d 735, 739 (Pa. 1998):

[B]efore exercising its discretion to continue in the defendant's
absence, the trial court should consider the following issues:

[T]he likelihood that the trial could soon take place with the
defendant present; the difficulty of rescheduling, particularly in
multiple-defendant trials; the burden on the Government in
having to undertake two trials,

[T]his list of issues is not exhaustive. Other factors may be
taken into consideration as the situation requires.

Id.

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Here, the trial court stated at the outset that Appe||ant “has done
everything he can to bedevil the authorities in attempting to carry out [his]
right” to participate in a trial. N.T., 7/22/15, at 8. The trial court set forth
the circumstances before it as follows:

[Appellant has] committed serious misconducts, erupt[ed] in his

cell, punch[ed] his light causing him to bleed, [and] mix[ed]

blood with his milk to throw on the guards. . . . [T]he fact that at

one instance there [Appellant] is agreeing to go is only an

aberration in what appears to be a long extended pattern of

misconduct by [Appellant] to thwart our attempts to get him

here.
Id. at 6, 8. The trial court also took into account that Appe||ant is violent, in
a restricted housing unit, and, in the opinions of multiple correctional
officers, “one of the worst, if not the worst, inmates they've ever housed."
Id. at 6-7. The trial court acknowledged that the Commonwealth has the
“physical power and force to compel his appearance. We could do that. But
we couldn't do that without great risk . . . to injuring the deputies.” Id. at
8. The trial court concluded: “[H]e's not entitled, in my view, to jerk the
deputies around. I know that's not a legal word, I'm thinking of a better
word, but to basically turn them into yo-yos as he changes his mind as an
attempt to manipulate them and the system." Id.

We agree, and hold that the trial court appropriately weighed the
specific circumstances of this case against Appe||ant's constitutional right to

be present for trial. In particular, the difficulty and burden of rescheduling

the trial yet again and assuring that Appe||ant would be present at a

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rescheduled trial, at great risk to the government personnel who would have
to assure his presence, weighs heavily in favor of the trial court's decision.
Accordingly, the trial court did not abuse its discretion in deciding to try
Appe||ant in absentia.

Based on the foregoing, we agree with appellate counsel that the sole
issue raised by Appe||ant lacks merit. In addition, we have reviewed the
certified record consistent with Flowers, 113 A.3d at 1250, and have
discovered no additional arguably meritorious issues. Thus, we grant
appellate counsel's petition to withdraw and affirm the trial court's judgment
of sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

