J-S35020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                           OF PENNSYLVANIA
                             Appellee

                        v.

    RICHARD GARRETT

                             Appellant                    No. 3323 EDA 2018


        Appeal from the Judgment of Sentence Entered August 20, 2018
                 In the Court of Common Pleas of Bucks County
               Criminal Division at No.: CP-09-CR-0006794-2017


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED SEPTEMBER 19, 2019

        Appellant Richard Garrett appeals from the August 20, 2018 judgment

of sentence entered in the Court of Common Pleas of Buck County (“trial

court”), following his bench conviction for one count of terroristic threats.1

Appellant’s counsel, Michael J. Lacson, Esquire, has filed a petition to

withdraw, alleging that this appeal is wholly frivolous, and filed a brief

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

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




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. § 2706(a)(1).
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       The facts and procedural history of this case are undisputed. On July

17, 2017, Appellant was charged with, inter alia, terroristic threats.2 Following

a preliminary hearing, the charges were held for trial. Appellant waived his

rights to a jury trial. At trial, the Commonwealth presented the testimony of

Charles Moye, Jr., among others. As summarized by the trial court:

              [Mr. Moye] testified that he is the neighbor of [Appellant],
       living in the adjacent townhouse in Levittown, Pennsylvania. [Mr.
       Moye] asserted that on June 28, 2017, at approximately 8:15am,
       [Appellant] came on to [Mr. Moye’s] property and appeared to be
       either placing or removing an object from [the] front step. When
       Mr. Moye inquired as to [Appellant’s] purpose and told him to
       leave his property, [Appellant] responded “Don’t worry about
       what the fuck I’m doing on your property. I’ll come up there and
       fuck you up again like I did before.” Mr. Moye testified that he
       believes this was referencing an incident several years earlier
       when [Appellant] confronted Mr. Moye, who was returning home
       from outpatient surgery, on their shared residential walkway and
       punched [Mr. Moye] in the jaw.

              According to Mr. Moye, at that time he warned [Appellant]
       not to come into his house, and [Mr. Moye told Appellant] he had
       a licensed firearm with which he would defense [sic] himself. Mr.
       Moye testified that the [Appellant] responded:

              You’re not going to shoot anybody; you’re not from
              the streets; you never been in a jail before. You’re
              not going to do anything to me. You’re not a real man
              because you haven’t been in prison before . . . the
              only thing you’re going to do is go see Judge Kline.
              She’s not going to do anything but give me a fine, and
              the cops aren’t going to do anything.

       As he left the property, [Appellant] further remarked, “I know
       what time you leave in the morning and I’m going to stab you in
       your fucking back.” Mr. Moye is a dialysis patient, who leaves the
       house regularly at 5:00 a.m. to makes [sic] his appointments.
       [Appellant] has previously confronted him and pushed him when
       he has been leaving the house for these early-morning
       appointments.

____________________________________________


2Appellant also was charged with harassment (18 Pa.C.S.A. § 2709(a)(1))
and disorderly conduct (18 Pa.C.S.A. § 5503(a)(1)). Because he ultimately
was acquitted of these charges, they are not a subject of this appeal.

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Trial Court Opinion, 1/4/19, at 2-3 (record citations omitted). In response,

Appellant testified in his own defense. As the trial court recounted:

      [Appellant] categorically denied having any interaction with Mr.
      Moye on June 28, 2017. He denied being in Mr. Moye’s yard at
      any point that day. He further denied having punched Mr. Moye
      in the mouth in the earlier incident. He agreed that there had
      been multiple past confrontations between himself and Mr. Moye,
      but denied any fault. He denied having ever struck Mr. Moye and
      asserted that he had refrained from doing so because of his
      excellent control of his temper. [Appellant] further insisted that
      his physical prowess was such that he would severely injure Mr.
      Moye if he chose to attack him.

Id. at 3 (record citations omitted). Finding Mr. Moye’s version of the events

more credible, the trial court found Appellant guilty of terroristic threats. On

August 20, 2018, the trial court sentenced Appellant to four to fourteen

months’ incarceration. The court directed that Appellant undergo a mental

health evaluation and fully comply with any treatment recommendations.

Further, the trial court recommended that Appellant not be paroled until and

unless he was mentally stable and did not pose a threat to himself or others.

Finally, the court ordered that Appellant have no contact with Mr. Moye for

the term of his sentence.     Appellant filed a motion for reconsideration of

sentence, which the trial court denied following a hearing on October 22,

2018. Appellant timely appealed. The trial court directed Appellant to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant

complied, raising a sufficiency of evidence claim. In response, the trial court

issued a Pa.R.A.P. 1925(a) opinion.

      On April 22, 2019, Appellant’s counsel filed in this Court a motion to

withdraw as counsel and filed an Anders brief, wherein counsel repeats the

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sufficiency of the evidence claim: “Was the evidence presented at trial

sufficient to support a conviction for terroristic threats?” Anders Brief at 4.

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

merits of the underlying issues without first examining counsel’s petition to

withdraw.   Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).     It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

      Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention. Accordingly, we conclude that counsel has satisfied the

procedural requirements of Anders.




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      We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:

      [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. Here, our review of counsel’s brief indicates that

he has complied with the briefing requirements of Santiago. We, therefore,

conclude   that   counsel   has   satisfied   the   minimum     requirements    of

Anders/Santiago.

      Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now turn to the merits

of Appellant’s appeal.

      Appellant’s sole issue on appeal implicates the sufficiency of the

evidence underlying his conviction for terroristic threats. It is settled that “[a]

claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by

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      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014).

      The Crimes Code defines terroristic threats as follows.          “A person

commits the crime of terroristic threats if the person communicates, either

directly or indirectly, a threat to . . . commit any crime of violence with intent

to terrorize another.”     18 Pa.C.S.A. § 2706(a)(1).        To sustain such a

conviction, the Commonwealth must prove that the defendant threatened to

commit a crime of violence, and that the defendant communicated the threat

in order to terrorize another person or acted with reckless disregard for the

risk of causing terror. See Commonwealth v. Beasley, 138 A.3d 39, 46

(Pa. Super. 2016), appeal denied, 161 A.3d 791 (Pa. 2016). “Neither the

ability to carry out the threat, nor a belief by the person threatened that the

threat will be carried out, is an element of the offense.” Id. (citation omitted).

And, “[b]eing angry does not render a person incapable of forming the intent

to terrorize.”   Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super.

2016) (citation omitted), appeal denied, 167 A.3d 698 (Pa. 2017).




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         Instantly, based upon the evidence presented at trial, viewed in a light

most favorable to the Commonwealth, we agree with Attorney Lacson that the

Commonwealth proved beyond a reasonable doubt Appellant committed the

offense of terroristic threats under Section 2706(a)(1).       As the trial court

found:

         [I]n the morning on [June 28, 2017], [Appellant] came on to Mr.
         Moye’s property, and the parties had the verbal exchange Mr.
         Moye described.      The [trial court] further finds that when
         [Appellant] stated, “I know what time you leave in the morning
         and I’m going to stab you in your fucking back,” his purpose was
         that, on the frequent mornings that Mr. Moye had to leave the
         house at 5:00 a.m., he would thereafter do so in apprehension
         that [Appellant] would attack him with a knife. The [trial court]
         further finds that [Appellant] has a subjective belief and intent
         that Mr. Moye would in fact be placed in fear by this threat, and
         that causing this fear was [Appellant’s] object. [Appellant’s]
         stabbing threat to his neighbor [Mr. Moye] was thus a statement
         threatening a crime of violence for the purpose of placing Mr. Moye
         in fear of the same, satisfying the elements of [Section]
         2706(a)(1).

Trial Court Opinion, 1/4/19, at 3-4. Accordingly, Appellant’s sufficiency claim

fails.

         We have conducted an independent review of the record and addressed

Appellant’s issue on appeal. Based on our conclusions above, we agree with

Attorney Lacson that the issue Appellant seeks to litigate in this appeal is

wholly frivolous.     Also, we do not discern any non-frivolous issues that

Appellant could have raised. We, therefore, grant Attorney Lacson’s petition

to withdraw and affirm the judgment of sentence.

         Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/19




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