J-S10015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NATHANIEL BROOKS, JR.

                            Appellant                 No. 1783 EDA 2015


              Appeal from the Judgment of Sentence June 4, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003577-2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED JANUARY 22, 2016

        Appellant, Nathaniel Brooks, Jr., appeals from the judgment of

sentence entered in the Chester County Court of Common Pleas, following

his jury trial convictions of indecent exposure and open lewdness.1       We

affirm and grant counsel’s petition to withdraw.

        On August 23, 2014, Thérèse McElwee entered the Paoli Public Library.

As she sat down at a table, she made eye contact with Appellant and smiled.

After a short time, Ms. McElwee noticed Appellant looked at her as he moved

to a computer station closer to her table. Ms. McElwee looked up from her

work and saw Appellant partially unclothed, with his genitalia exposed as he

____________________________________________


1
    18 Pa.C.S.A. §§ 3127(a) and 5901, respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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masturbated. Ms. McElwee immediately gathered her belongings and moved

from her seat to report the incident. As she stood, Appellant said “I’ll go, I’ll

go” and left the library.

      Ms. McElwee reported the incident to a librarian on duty. Ms. McElwee

and the librarian left the library to see if Appellant was still nearby.     The

women did not see Appellant outside of the building; instead they

encountered Officer Jackson, who was investigating a separate incident.

Officer Jackson relayed a description of Appellant over the police radio to

other officers in the area. While patrolling nearby at the Paoli train station,

Officer Gasparo noticed a man who matched Appellant’s description. Officer

Gasparo notified Officer Jackson, who drove by the train station with Ms.

McElwee in his patrol vehicle. Ms. McElwee positively identified Appellant as

the man who exposed himself to her in the library.

      Meanwhile, Appellant told Officer Gasparo that Appellant had been at

the Paoli Public Library earlier in the day. Appellant stated a woman flirted

with him while he was there and asked him to expose himself.           Appellant

admitted he touched himself to please the woman. Officer Gasparo arrested

Appellant and took him to the police station, where Appellant gave another

verbal account of the incident consistent with his first statement. Appellant

gave a written statement that differed from his verbal statements.         In his

written statement, Appellant said a woman approached him and asked him

to expose himself, but he immediately left the library without doing so.


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       Prior to trial, Appellant filed multiple pro se motions, which were

forwarded to Appellant’s appointed counsel.           Appellant waived his right to

counsel before trial, and his attorney acted as standby counsel during the

proceedings. Following trial on June 4, 2015, a jury convicted Appellant of

indecent exposure and open lewdness.             Sentencing occurred immediately.

Appellant requested the court to appoint counsel for sentencing and appeal,

which the court did.        The court then sentenced Appellant to nine (9) to

twenty-three      (23)   months’      incarceration   for     the   indecent   exposure

conviction.    The open lewdness conviction merged with indecent exposure

for purposes of sentencing, so the court did not impose further punishment.

Appellant submitted various pro se motions/filings between June 4, 2015,

and June 10, 2015, which the court resolved.                None of the post-sentence

filings challenged the discretionary aspects of sentencing.

       Appellant filed a pro se notice of appeal on June 11, 2015. The court

held a Grazier2 hearing on June 24, 2015, at which time Appellant decided

to continue the appeal process with the assistance of counsel.                 The court

therefore denied as moot Appellant’s outstanding motion to appeal pro se.

On June 29, 2015, the court ordered counsel to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 15,

2015, appellate counsel requested an extension to file the Rule 1925(b)

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2
    Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).



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statement, which the court granted. On August 17, 2015, counsel ultimately

filed a Rule 1925(c)(4) statement of intent to file a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and

Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

Counsel filed her petition with this Court on October 5, 2015, to withdraw as

counsel.

      As a preliminary matter, we address counsel’s petition to withdraw her

representation, pursuant to Anders, supra and Commonwealth v.

Santiago, 602 Pa. 159, 978 A.2d 349 (2009).            Anders and Santiago

require counsel to: 1) petition the Court for leave to withdraw, certifying

that after a thorough review of the record, counsel has concluded the issues

to be raised are wholly frivolous; 2) file a brief referring to anything in the

record that might arguably support the appeal; and 3) furnish a copy of the

brief to the appellant and advise him of his right to obtain new counsel or file

a pro se brief to raise any additional points the appellant deems worthy of

review.    Santiago, supra at 173-79, 978 A.2d at 358-61.           Substantial

compliance with these requirements is sufficient.         Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). In Santiago, supra, our

Supreme Court addressed the briefing requirements where court-appointed

appellate counsel seeks to withdraw representation:

           Neither Anders nor McClendon requires that counsel’s
           brief provide an argument of any sort, let alone the type of
           argument that counsel develops in a merits brief. To
           repeat, what the brief must provide under Anders are

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         references to anything in the record that might arguably
         support the appeal.

                                  *    *    *

         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel filed a petition to withdraw representation.

The petition states counsel fully reviewed the record and concluded the

appeal would be wholly frivolous. In her Anders brief, counsel provides a

summary of the procedural history of the case. Counsel refers to evidence

in the record that may arguably support the issues raised on appeal,

provides citations to relevant law, and states counsel’s reasons for her

conclusion that the appeal is wholly frivolous. Counsel indicates she notified

Appellant of the withdrawal request. Counsel also supplied Appellant with a

copy of the brief and a letter explaining Appellant’s right to proceed pro se

or with new privately retained counsel to raise any points Appellant deems

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necessary.       Therefore,     counsel    has   substantially   complied   with   the

requirements of Anders and Santiago.

       Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, so we review this appeal on the basis of the

issues raised in the Anders brief:

          WAS THE JURY’S VERDICT FINDING APPELLANT GUILTY
          OF INDECENT EXPOSURE PURSUANT TO 18 PA.C.S.A. §
          3127(A) AND OPEN LEWDNESS PURSUANT TO 18
          PA.C.S.A. §  5901  AGAINST   THE WEIGHT    AND
          SUFFICIENCY OF THE EVIDENCE PRESENTED BY THE
          COMMONWEALTH?

          DID THE TRIAL COURT ABUSE ITS DISCRETION
          SENTENCING APPELLANT TO NINE TO TWENTY-THREE
          MONTHS’ INCARCERATION FOR INDECENT EXPOSURE, 18
          PA.C.S.A. § 3127(A)?

(Anders Brief at 3).3

       Appellant first argues nudity on its own is not a lewd act as set forth in

the open lewdness statute.              Appellant contends the jury’s questions

regarding whether masturbation was an essential element of a lewd act

indicated the jury was not convinced Appellant masturbated in the library.

Appellant maintains the jury’s questions indicated their doubt that the facts

presented were adequate to return a guilty verdict on the charge of open
____________________________________________


3
  Notwithstanding the phrasing of Appellant’s first issue, his argument as
presented challenges only the sufficiency of the evidence, not the weight of
the evidence.    See, e.g., Commonwealth v. Smith, 853 A.2d 1020
(Pa.Super. 2004) (explaining remedy for challenges to sufficiency of
evidence is judgment of acquittal; remedy for challenges to weight of
evidence is new trial).



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lewdness.      Appellant concludes the Commonwealth offered insufficient

evidence at trial to convict Appellant of open lewdness.4 We disagree.

       With respect to a sufficiency of the evidence challenge:

          The standard we apply…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 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

       The Crimes Code defines open lewdness as follows:

          § 5901. Open lewdness.


____________________________________________


4
  Appellant makes no challenge to the sufficiency of the evidence supporting
his conviction for indecent exposure.



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            A person commits a misdemeanor of the third degree if he
            does any lewd act which he knows is likely to be observed
            by others who would be affronted or alarmed.

18 Pa.C.S.A. § 5901.

         Instantly,   the   Commonwealth   presented   the   testimony   of   Ms.

McElwee, Officer Gasparo, and Officer Jackson at trial. Ms. McElwee testified

that she made eye contact with Appellant before she sat down at a table in

the Paoli Public Library. Ms. McElwee indicated she looked up from her work

and saw Appellant masturbating, with his genitalia fully exposed.             Ms.

McElwee stated she was shocked by Appellant’s conduct and immediately

reported it to a librarian on duty and then to the police.

         Officer Jackson broadcast the description of Appellant over the police

radio.     Officer Gasparo indicated he was at the train station and had just

spoken to Appellant, who matched the description of the man in the library.

Officer Jackson drove by the station with Ms. McElwee, and Ms. McElwee

positively identified Appellant as the man who exposed himself in the library.

Officer Gasparo testified he spoke to Appellant, and Appellant admitted he

had exposed himself at the library after a woman asked him to do so.

         Appellant exposed himself to Ms. McElwee in a public library. The trial

evidence indicates Appellant was looking at Ms. McElwee as he masturbated

and said, “I’ll go, I’ll go” when she reacted with shock. Prior to his arrest,

Appellant admitted he had exposed himself in the public library.              The

Commonwealth’s evidence showed Appellant displayed his genitals in a


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public    setting   to   the   shock   and    alarm   of   another    library   patron.

Consequently, the evidence was sufficient to sustain Appellant’s conviction

for open lewdness. See Jones, supra.

         In his next issue, Appellant complains his sentence for the offense of

indecent exposure is excessive. Specifically, Appellant asserts his sentence

of   nine    to   twenty-three   months’      incarceration   was    “excessive”   and

constitutes “too severe a punishment.”            As presented, Appellant’s issue

challenges the discretionary aspects of sentencing. See Commonwealth v.

Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly excessive challenges discretionary aspects of sentencing).

         Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.          Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

            [W]e conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal, See
            Pa.R.A.P. 902 and 903; (2) whether the issue was properly
            preserved at sentencing or in a motion to reconsider and
            modify sentence, See Pa.R.Crim.P. 720; (3) whether
            appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
            (4) whether there is a substantial question that the
            sentence appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

         When appealing the discretionary aspects of a sentence, an appellant


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must invoke the appellate court’s jurisdiction by including in the brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f).      The concise statement must indicate “where the

sentence falls in relation to the sentencing guidelines and what particular

provision of the code it violates.”    Commonwealth v. Kiesel, 854 A.2d

530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d

721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920

(2000)).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.       Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Sierra, supra at 912-13. A claim that a sentence is

manifestly excessive might raise a substantial question if the appellant’s

Rule 2119(f) statement sufficiently articulates the manner in which the

sentence imposed violates a specific provision of the Sentencing Code or the

norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d

at 627. On the other hand, a bald assertion of sentence excessiveness does


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not raise a substantial question.   Commonwealth v. Trippett, 932 A.2d

188 (Pa.Super. 2007).     Furthermore, even in the context of Anders, the

appellant waives his challenge to the discretionary aspects of sentencing

when he fails to preserve the issue in a timely post-sentence motion.

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

      Instantly, the court sentenced Appellant to nine to twenty-three

months on June 4, 2015.        Between June 4, 2015 and June 10, 2015,

Appellant submitted various pro se motions and filings. None of Appellant’s

pro se filings challenged the discretionary aspects of sentencing. Appellant’s

failure to preserve his sentencing claim in any post-sentence motion

constitutes waiver of the claim on appeal. See id.; Evans, supra.

      Moreover, even if Appellant had properly preserved his sentencing

claim, as presented it fails to raise a substantial question. Appellant merely

offers a bald claim of excessiveness without specific reasons for his

contention. See Trippett, supra. Further, the court reasoned as follows

when it imposed Appellant’s sentence:

         [I]n sentencing someone such as [Appellant], the court
         has to consider the sentencing guidelines, which we all
         talked about. And then I have to balance, I have to
         consider all the factors in our Sentencing Code and balance
         the background, character and circumstances                 of
         [Appellant] with the circumstances of the crime, whether
         there is a need to incarcerate him to prevent future
         offenses by him. And I have to consider the possibility of
         rehabilitation. Furthermore, I have to follow the general
         principle that the sentence imposed should call for
         confinement that is consistent with the protection of the
         public, the gravity of the offense as it relates on the impact

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       of the life of the victim, as well as on the community. And
       I must consider and address [Appellant’s] rehabilitative
       needs.

       Having said all that, it’s very easy for me to go in the
       aggravated range. It would be very easy for me to go into
       the mitigated range. But to me, the very top of the
       standard [range] is required because of a variety of
       reasons. One, the consistent violations of the law over the
       last, you know, nine years or so, all involving the same
       behavior. I’m sure there’s a mental health problem that’s
       prompting this behavior. But still, [there are] many people
       who are diagnosed with schizophrenia and depression and
       many other ailments who see their psychiatrist, take their
       medicine and live very productive lives. And you know
       that.

                               *     *      *

       You’re not going to leave the court much [choice]. Quite
       honestly, the SCI Waymark, that’s a prison that’s very
       good with treating psychological and psychiatric disorders.
       So I could easily aggravate and sent you upstate so you
       could get the mental health treatment that I think you
       need. I think you know you need it. We want to stop this
       slippage and right the ship and get you back and
       productive in the community.

       The reason I’m going to give you the sentence I am as well
       is because I believe I want the probation department to
       verify where you’re going to be living before you’re just
       released, like walking out of here tonight as your lawyer is
       asking me to do. I want them to verify that. And I want
       them to contact the [Veterans Administration] to make
       sure you are available for mental health treatment and sex
       offender treatment that I’m going to so order at the
       request of the Commonwealth, which I think you need.

                               *     *      *

       I thought the recommendation of the Commonwealth is
       sound, especially since [Appellant has] been doing this for
       a number of times. He’s just got to stop. … People go to
       the library, you know, they expect to be able to have

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           peace and quiet, like you, but not to be exposed to such
           rude behavior. It’s rude. It’s foul. It’s not right. And you
           know better. I considered your service to this country in
           fashioning this sentence.

(N.T. Sentencing, 6/4/15, at 185-190). At sentencing, the court considered

all relevant sentencing factors, including Appellant’s other offenses in similar

settings and his military service.      The court imposed a standard range

sentence and put its reasons for Appellant’s sentence on the record.

Therefore, even if Appellant had properly preserved his sentencing claim, it

would merit no relief. See Anderson, supra; Sierra, supra. Accordingly,

we affirm and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




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