J-S15035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ZACHARIAH JOHNSON

                            Appellant               No. 1929 MDA 2013


              Appeal from the Judgment of Sentence July 2, 2013
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001337-2012


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED MARCH 13, 2015

        Appellant Zachariah Johnson appeals from the judgment of sentence

entered in the Centre County Court of Common Pleas. Appellant’s counsel

filed an Anders1 brief and a petition for leave to withdraw as counsel. We

affirm and grant counsel’s petition for leave to withdraw.

        In its opinion denying Appellant’s post-sentence motions, the trial

court summarized the factual and procedural history as follows:

          [Appellant] and his co-defendant, Joseph Jenkins, were
          charged with Robbery, Conspiracy, and Simple Assault for
          an incident that occurred on July 9, 2011 outside of the
          Parkway Plaza Apartments. Defendants approached
          Anthony Caracillo while he was urinating by a dumpster
          behind the apartment complex and asked him for money
          to buy more beer for the party that they had all been
____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).
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            attending. Mr. Caracillo gave one of the defendants a
            dollar, and then walked past them. Defendants then
            attacked Mr. Caracillo and stole possessions off of his
            person, ultimately leaving him injured, bloodied, and with
            a broken jaw.

            A jury trial was held on May 21, 2013. [Appellant] was
            found guilty of Robbery—Bodily Injury, 18 [Pa.C.S.] §
            3701, 18 [Pa.C.S.] § 306; Criminal Conspiracy, Robbery—
            Bodily Injury, 18 [Pa.C.S.]. § 3701, 18 [Pa.C.S.] §
            903(a)(1); and Simple Assault, 18 [Pa.C.S.] § 2701(a)(1),
            18 [Pa.C.S.] § 306(a). [Appellant] was sentenced on July
            2, 2013, to a total sentence of 5 1/2 to 11 years in a State
            Correctional Facility.

Opinion, 10/10/2013, at 1-2.

       Appellant filed a post-sentence motion arguing that simple assault

merged with robbery for sentencing purposes.         Opinion, 10/10/2013.   On

October 10, 2013, the trial court denied the post-sentence motion.          On

October 25, 2013, Appellant’s counsel filed a timely notice of appeal.      On

November 15, 2013, Appellant’s counsel filed a statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b).         That same day, the trial court issued its 1925(a)

opinion.2

       On November 22, 2013, Appellant filed with this Court a pro se

application to remove counsel.         On December 6, 2013, this Court ordered


____________________________________________


2
 The trial court’s 1925(a) opinion relied on its opinion and order denying the
post-sentence motions. Opinion in Response to Matters Complained of on
Appeal, 11/15/2013.




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the trial court to conduct a Grazier3 hearing to determine whether

Appellant’s pro se application to remove counsel was knowing, intelligent,

and voluntary. On December 31, 2013, the trial court conducted the hearing

and granted Appellant’s application to remove counsel and proceed pro se.

       On February 5, 2014, the trial court issued an order requiring

Appellant to file a 1925(b) statement within 21 days. On February 21, 2014,

Appellant filed a pro se 1925(b) statement.          On March 4, 2014, the trial

court issued its 1925(a) opinion.

       On March 4, 2014, Appellant filed with this Court a motion for

appointment of appellate counsel. On March 18, 2014, this Court instructed

the trial court to appoint appellate counsel.       On March 21, 2014, the trial

court appointed appellate counsel. Although ordered to file a brief on behalf

of Appellant on March 27, 2014, May 12, 2014, June 13, 2014, and August

1, 2014, prior counsel failed to file a brief. On August 15, 2014, nine days

late, prior counsel filed a petition to withdraw. The petition failed to comply

with the dictates of Anders and Santiago.4 On August 28, 2014, this Court

remanded the case to the trial court for the removal of counsel and

appointment of new counsel.             On September 4, 2014, the trial court

appointed present appellate counsel.             Counsel filed two requests for


____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998).
4
    Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009).



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additional time to file a brief, which this Court granted.   On December 8,

2014, counsel filed an Anders brief and a petition for leave to withdraw as

counsel.

      Because new appellate counsel filed a petition to withdraw pursuant to

Anders and its Pennsylvania counterpart, Santiago, we must address

counsel’s petition before reviewing the merits of Appellant’s underlying

issues. 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 the

Pennsylvania 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 must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her 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).     Substantial compliance with these requirements is

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sufficient.     Commonwealth        v.    Wrecks,      934     A.2d   1287,        1290

(Pa.Super.2007). “After establishing that the antecedent requirements have

been met, this Court must then make an independent evaluation of the

record to determine whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

      Appellant’s counsel filed a petition for leave to withdraw as counsel.

The petition states counsel conscientiously examined the record in this

matter and determined that any appeal would be frivolous.                 Petition for

Leave to Withdraw as Counsel, at ¶ 2; Letter to Appellant. Counsel notified

Appellant of the withdrawal request, supplied him with copies of the petition

for leave to withdraw and the Anders brief, and sent Appellant a letter

explaining his right to proceed pro se or with new, privately-retained counsel

to raise any additional points or arguments that Appellant believed had

merit.   See Petition for Leave to Withdraw as Counsel at ¶ 4-5; Letter to

Appellant.    In the Anders brief, counsel provides a summary of the facts

and procedural history of the case with citations to the record, refers to

evidence of record that might arguably support the issues raised on appeal,

provides citations to relevant case law, states his conclusion that the appeal

is wholly frivolous, and states his reasons for concluding the appeal is

frivolous.     Accordingly,   counsel    has   substantially   complied     with    the

requirements of Anders and Santiago.




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      Appellant has not filed a pro se brief or a counseled brief with new,

privately-retained counsel. We, therefore, review this appeal based on the

issues of arguable merit raised in the Anders brief.

      Counsel raises the following issue of arguable merit:

         1. The [t]rial [c]ourt erred in concluding that the [s]imple
            [a]ssault conviction did not merge with the [r]obbery
            conviction for sentencing purposes.

Anders Brief at 17.      Counsel’s Anders brief also discusses the following

four issues, which Appellant raised in his pro se 1925(b) statement:

         1. The [t]rial [c]ourt erred in allowing evidence that was
         insufficient to establish probable cause to arrest the
         defendant.

         2. The [t]rial [c]ourt erred in establishing that there was a
         prima-facie [sic] showing at the preliminary hearing
         August 8th, 2012.

         3. The [t]rial [c]ourt erred in acting diligently to arrest
         [Appellant] on the day probable cause was to be allegedly
         established, i.e. 10 (ten) months elapsed before the initial
         filing of the charges, after probable cause to arrest had
         been previously established.

         4. The [t]rial [c]ourt erred in allowing the victim’s
         subsequent statement to over-ride [sic] the actual
         statement to investigating officers to establish probable
         cause, to make [Appellant] in this case thereafter.

Appellant’s Brief at 9-10.

      This Court addressed Appellant’s first issue, i.e., whether the simple

assault conviction merged with the robbery conviction for sentencing

purposes, in our opinion affirming the judgment of sentence for Appellant’s

co-defendant, Jenkins.       See Commonwealth v. Jenkins, 96 A.3d 1055

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(Pa.Super.2014).   This Court concluded the issue was meritless.       We

reasoned:

        Based upon the foregoing discussion, we conclude that
        Jenkins’ crimes were the result of multiple criminal acts.
        The information filed by the Commonwealth enumerates
        that the element of simple assault, see 18 Pa.C.S.
        2701(a)(1), was fulfilled when the Defendants punched
        Caracillo, and knocked him to the ground. No other
        assaultive conduct is listed at the simple assault charge.
        The charge of robbery against Jenkins also contains a
        description of this initial assault. As indicated above,
        robbery includes as a necessary element that a defendant
        inflict bodily injury, or put the victim in fear of such
        immediate bodily injury, while committing a theft. See 18
        Pa.C.S. § 3701(a)(1)(iv). Had the Commonwealth listed
        only the assaultive conduct that formed the basis of the
        simple assault charge against Jenkins at the robbery
        charge, we would conclude that Jenkins did not commit
        “multiple criminal acts beyond that which is necessary to
        establish the bare elements of the additional crime.”
        [Commonwealth v. Weakland, 555 A.2d 1228, 1233
        (Pa.1989)].     Were it the case that Jenkins had been
        convicted of both simple assault and robbery upon the
        basis of a single criminal act, we would likely order
        Jenkins’ resentencing because simple assault appears to be
        a lesser included offense of robbery. Specifically, simple
        assault does not require proof of any statutory element
        that robbery does not also require.

        However, the Commonwealth’s description of the conduct
        forming the basis of the robbery charge against Jenkins
        also included the Defendants’ conduct in restraining
        Caracillo on the ground. Caracillo’s testimony indicates
        that the Defendants restrained him by holding a foot to his
        head in a manner that exacerbated his existent facial
        injuries. N.T. at 100. This additional physical restraint
        caused Caracillo substantial pain. Id. These events would
        establish the “bodily injury” element of robbery, even in
        the absence of the facts that established Jenkins’
        conviction for simple assault. By including the restraint of
        Caracillo in its description of robbery, the Commonwealth
        established that Jenkins committed multiple criminal acts

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       beyond the “bare” standard articulated by Weakland and
       [Commonwealth v. Anderson, 650 A.2d 20 (Pa.1994)].

       This situation is generally analogous to this Court’s holding
       in   Commonwealth v. Ousley,              21    A.3d    1238
       (Pa.Super.2011),     wherein    we    determined     that   a
       defendant’s convictions for aggravated assault and robbery
       did not merge:

          [T]he evidence does not support [the appellant’s]
          contention that there was a single act that formed
          the basis for these charges, that is, a single blow to
          the head. The record reflects that the victim was
          struck in the head with a firearm being carried by
          [the appellant] that resulted in a bleeding head
          wound. This was clearly an attempt to cause serious
          bodily injury. In addition, the evidence reflects that
          [the appellant], while brandishing the firearm and
          after striking her on the head, forced her into an
          office, demanded to know where the company safe
          was and threatened to shoot her if she did not tell
          him the truth. This was not a single act that formed
          the basis for both charges.

       21 A.3d at 1243. In Ousley, the defendant’s additional
       conduct which formed the independent basis of the
       robbery charge was much more emphatic then Jenkins’
       conduct here. Unlike in Ousley, Jenkins did not have a
       weapon and did not specifically threaten Caracillo with
       further physical harm. However, Jenkins actually inflicted
       further pain upon Caracillo by grinding his face into the
       concrete. N.T. at 100. Furthermore, we remain cognizant
       of the settled precedent that Jenkins is not entitled to a
       “volume discount” for his crimes “simply because he
       managed to accomplish all the acts within a relatively short
       period of time.” Commonwealth v. Pettersen, 49 A.3d
       903, 912 (Pa.Super.2012) (citing Anderson, 650 A.2d at
       22).    Parsing Jenkins’ actions, as charged by the
       Commonwealth, there are additional actions that establish
       the “bodily injury” element of robbery without reference to
       the conduct establishing his conviction for simple assault.
       Although this case presents a close question, we are
       constrained to conclude that Jenkins’ actions constituted
       “multiple criminal acts,” and that Jenkins’ convictions for


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          simple assault and robbery were not predicated upon a
          single criminal act.

Jenkins, 96 A.3d at 1062-63 (internal footnotes and emphasis deleted).

      A jury convicted Appellant of robbery and simple assault based on the

same facts as it convicted his co-defendant, Jenkins.       Accordingly, as this

Court found robbery and simple assault did not merge for his co-defendant,

we also find the crimes do not merge for Appellant.

      Appellant raised four issues in his pro se 1925(b) statement:           (1)

insufficient probable cause to arrest Appellant; (2) failure to establish a

prima facie case at the preliminary hearing; (3) failure to act diligently in

arresting Appellant, as 10 months lapsed between the filing of charges and

the arrest of Appellant; and (4) the trial court erred in crediting victim’s

subsequent statement to police, rather than “the actual statement to

investigating officers to establish probable cause.” Appellant’s Brief at 9-10.

      Appellant failed to raise these issues in pre-trial motions, at trial, or in

post-sentence motions.     Accordingly, he has waived the issues.       Pa.R.A.P.

302(a).

      Our independent review of the record has revealed no non-frivolous

claims that Appellant could have raised, and we agree with counsel that this

appeal is wholly frivolous. Accordingly, we affirm the judgment of sentence

and grant counsel’s petition for leave to withdraw.




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     Judgment of sentence affirmed and petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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