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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    v.                     :
                                           :
OLIVAR GONZALEZ-IRIARTE,                   :         No. 94 WDA 2015
                                           :
                           Appellant       :


          Appeal from the Judgment of Sentence, December 18, 2014,
               in the Court of Common Pleas of McKean County
               Criminal Division at No. CP-42-CR-0000272-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 1, 2016

        Olivar Gonzalez-Iriarte appeals from the December 18, 2014 judgment

of sentence following his conviction of aggravated assault, endangering the

welfare of children, simple assault, and recklessly endangering another

person (“REAP”).1        The trial court appointed Douglas J. Garber, Esq., as

appellant’s counsel for both the trial and his appeal. Attorney Garber filed a

petition to withdraw on June 2, 2015, alleging that the appeal is frivolous,

accompanied by an Anders brief.2           We will grant counsel’s withdrawal

petition and affirm appellant’s judgment of sentence.




1
    18 Pa.C.S.A. §§ 2702, 4304, 2701, and 2705, respectively.
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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        This case concerns injuries sustained by J.D., a two-year-old child.3

On     the   morning   of   March   25,     2014,   Daniel   Herbert,4   the   victim’s

grandfather, drove Amanda Diaz-Polo, the victim’s mother and appellant’s

girlfriend, to work.5 (Id. at 35.) Herbert, suspecting that appellant may be

abusing the victim, activated the recording device on his cell phone and

placed his cell phone under the couch in the living room. (Id. at 31.) Some

30-45 minutes later, Herbert returned home and checked on the victim.6

(Id. at 39.)     Herbert found the victim lying in bed staring at the ceiling.

(Id.) Herbert took the victim with him to the living room, so that Herbert

could listen to the recording. (Id. at 37.)

        After taking the victim to the couch, Herbert noticed bruising on the

victim, and he noticed that the victim’s eyes were rolling toward the back of

his head. (Id.) After listening to an excerpt of the recording, which Herbert

described as “somebody gasping for their life,” Herbert took the victim to the

emergency room at Bradford Regional Medical Center.                (Id. at 37, 40.)




3
    It is common practice in this court to identify minors by their initials.
4
   Although Daniel Herbert identified himself as such at trial and at the
suppression hearing, he was formerly known as Daniel Tucker. The witness
claims that he “divested” the name “Tucker.” (Notes of testimony, 11/18/14
at 48.)
5
    Appellant is not the victim’s father.
6
 Herbert moved in with Diaz-Polo, her two children, and appellant in early
March 2014. (Id. at 27-28.)


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Appellant and the victim’s four-year-old sister accompanied Herbert and the

victim to the emergency room. (Id.)

      McKean County Children and Youth Services (“CYS”) was called to the

hospital for a possible case of child abuse. (Id. at 63.) Amanda Crowe of

CYS responded to the call, and photographed bruises on the victim’s head,

back, feet, neck, chin, legs, face, and stomach. (Id. at 64-66.) The victim

was diagnosed with blunt force trauma to the abdomen and a concussion.

(Id. at 83.) It was also determined that the victim sustained a broken foot

that was starting to heal. (Id.)

      The   Bradford   Police   arrested   appellant   and   charged   him   with

aggravated assault, simple assault, endangering the welfare of children, and

REAP. Appellant filed a motion to suppress the recording made by Herbert,

which the trial court denied on August 8, 2014. A trial by jury was held on

November 18, 2014, and the jury convicted appellant on all counts.           The

trial court sentenced appellant on December 18, 2014, to an aggregate

sentence of no less than 50 months’ imprisonment and no more than

156 months’ imprisonment, with credit for time served.

      On January 12, 2015, appellant filed a notice of appeal. The trial court

ordered appellant to produce a concise statement of errors complained of on

appeal on January 23, 2015, pursuant to Pa.R.A.P. 1925(b).         On April 24,

2015, Attorney Garber notified the trial court of his intention to file an




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Anders brief.   Attorney Garber filed his petition to withdraw and Anders

brief with this court on June 2, 2015.

            A request by appointed counsel to withdraw pursuant
            to Anders and Santiago gives rise to certain
            requirements and obligations, for both appointed
            counsel and this Court.        Commonwealth v.
            Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
            2015).

                  These requirements and the significant
                  protection they provide to an Anders
                  appellant arise because a criminal
                  defendant has a constitutional right to a
                  direct appeal and to counsel on that
                  appeal.   Commonwealth v. Woods,
                  939 A.2d 896, 898 (Pa.Super. 2007).
                  This Court has summarized these
                  requirements as follows:

                        Direct appeal counsel seeking
                        to withdraw under Anders
                        must file a petition averring
                        that, after a conscientious
                        examination of the record,
                        counsel finds the appeal to
                        be wholly frivolous. Counsel
                        must also file an Anders
                        brief setting forth issues that
                        might arguably support the
                        appeal along with any other
                        issues necessary for the
                        effective             appellate
                        presentation thereof.

                        Anders counsel must also
                        provide a copy of the Anders
                        petition and brief to the
                        appellant,   advising    the
                        appellant of the right to
                        retain new counsel, proceed
                        pro se or raise additional



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                      points worthy of the Court’s
                      attention.

                Woods, 939       A.2d   at   898   (citations
                omitted).

                There are also requirements as to the
                precise content of an Anders brief:

                      The     Anders     brief     that
                      accompanies court-appointed
                      counsel’s       petition       to
                      withdraw        ...        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.

          Id. at 1248. If this Court determines that appointed
          counsel has met these obligations, it is then our
          responsibility “to make a full examination of the
          proceedings and make an independent judgment to
          decide whether the appeal is in fact wholly frivolous.”
          Id. at 1248. In so doing, we review not only the
          issues identified by appointed counsel in the Anders
          brief, but examine all of the proceedings to “make
          certain that appointed counsel has not overlooked



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            the existence of potentially non-frivolous issues.”
            Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Garber’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant; advised him of his right to retain new counsel,

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

court’s attention; and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005) (citation omitted).           See Commonwealth v.

Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). As Attorney Garber has

complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

     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.




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     Appellant’s sole issue on appeal is whether the Commonwealth

presented sufficient evidence to warrant convictions for aggravated assault,

endangering the welfare of children, simple assault, and REAP.

                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact-finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to a
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, the Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

                  Moreover, when 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
            the witnesses and the weight of the evidence
            produced, is free to believe all, part, or none of the
            evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted); appeal dismissed, 54 A.3d 22 (Pa. 2012).




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      We first review appellant’s aggravated assault conviction. The statute

defines aggravated assault as when a person “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to a child less than

six years of age, by a person 18 years of age or older.”          18 Pa.C.S.A.

§ 2702(a)(8).

      The Commonwealth introduced photographic evidence of the victim’s

injuries taken by Amanda Crowe, a CYS employee.          (Notes of testimony,

11/18/14 at 63.) Crowe took the photographs as part of her response to a

report of possible child abuse. (Id.) According to Crowe’s testimony, the

photographs depicted bruising on the victim’s head, back, feet, neck, chin,

legs, face, and stomach.    (Id. at 64-66.)    The jury also heard testimony

from Diaz-Polo and Herbert indicating that when Diaz-Polo and Herbert left

the house on the morning of March 25, 2014, the victim did not have any

visible injuries. (Id. at 11; 34.) Both Diaz-Polo and Herbert testified that,

upon leaving the house, appellant was the only adult in the house with the

victim and the victim’s four-year-old sister. The Commonwealth also played

Herbert’s tape recording of appellant’s interaction with the victim. Herbert

described the sounds heard on the tape as “more than cries. It sounded like

somebody gasping for their life.”    (Id. at 37.)   Through the testimony of

Crowe, Diaz-Polo, and Herbert, the Commonwealth sufficiently proved

beyond a reasonable doubt that appellant caused bodily injury to the victim.

Due to the fact that appellant was over 18 years of age and the victim was



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two years old at the time of the assault, the Commonwealth presented

sufficient evidence to warrant a conviction of aggravated assault.

      We next review the sufficiency of the evidence of appellant’s conviction

of endangering the welfare of children. Endangering the welfare of children

is defined as, “[a] parent, guardian, or other person supervising the welfare

of a child under 18 years of age . . . commits an offense if he knowingly

endangers the welfare of the child by violating a duty of care, protection, or

support.”   18 Pa.C.S.A. § 4304(a)(1).     This court established a three-part

test for determining whether the elements of endangering the welfare of

children have been met:

            (1) the accused was aware of his duty to protect the
            child; (2) the accused was aware that the child was
            in circumstances that could threaten the child’s
            physical or psychological welfare; and (3) the
            accused has either failed to act or has taken action
            so lame or meager that such actions cannot
            reasonably be expected to protect the child’s
            welfare.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations

omitted).

      In the instant case, the Commonwealth proved all three elements of

endangering the welfare of children beyond a reasonable doubt. The record

indicates that appellant was the only adult present in the home at the time

the victim was assaulted and appellant was aware of this fact. The record

further indicates that appellant violated his duty to the victim when appellant

assaulted the victim, thereby placing the victim in circumstances that could


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endanger his physical and psychological wellbeing.        See id. at 199.

Therefore, the Commonwealth has sufficiently proven, beyond a reasonable

doubt, the elements required to warrant a conviction of endangering the

welfare of children.

      A review of the Commonwealth’s evidence for simple assault and REAP

is not necessary, as both offenses are lesser-included offenses of aggravated

assault. Commonwealth v. Brown, 605 A.2d 429, 432 (Pa.Super. 1992)

(finding that the elements of simple assault are met with a conviction for

aggravated assault); Commonwealth v. Smith, 956 A.2d 1029, 1036

(Pa.Super. 2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010)

(“Reckless endangerment is a lesser included offense of aggravated assault

and where the evidence is sufficient to support a claim of aggravated assault

it is also sufficient to support a claim of recklessly endangering another

person.”),   quoting   Commonwealth v.      Thompson,      739   A.2d   1023,

1028 n.13 (Pa. 1999), cert. denied, 531 U.S. 829 (2000).

      In sum, we find this appeal to be wholly frivolous, and our

independent review of the record has not disclosed any other potentially

non-frivolous issues. Consequently, we grant counsel’s petition to withdraw,

and we 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: 3/1/2016




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