J-S03027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellee

                    v.

HORATIO MANDUS NIMLEY

                         Appellant                No. 1701 EDA 2014


           Appeal from the Judgment of Sentence May 27, 2014
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0007701-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                        FILED MARCH 30, 2015

      Appellant, Horatio Mandus Nimley, appeals from the judgment of

sentence entered May 27, 2014, by the Honorable William T. Nicholas, Court

of Common Pleas of Montgomery County.       Additionally, Appellant’s court-

appointed counsel, Timothy Peter Wile, Esquire, has filed an application to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After

careful review, we affirm Appellant’s judgment of sentence and grant

counsel’s petition to withdraw.

      On September 7, 2013, at approximately 6:00 a.m., Norristown Police

Officer Carl Roberts answered a civilian complaint that there was a black

male wearing a dark-colored hooded sweatshirt going in and out of

backyards in the 600 block of East Oak Street. Officer Roberts observed a
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bike in front of 609 East Oak Street and the Appellant exiting the backyard

of 617 East Oak Street. As the officers approached, Appellant fled on foot.

In pursuit, Officer Roberts advised Appellant that he was under arrest, and,

following a struggle, placed Appellant in custody.        When he was in the

process of being handcuffed, Appellant attempted to spit on other officers

present at the location.

       Following a bench trial, Appellant was convicted of disorderly conduct1

and sentenced to ninety days’ imprisonment. This timely appeal followed.

       Preliminarily, we note that Attorney Wile has requested to withdraw

and has submitted an Anders brief in support thereof contending that

Appellant’s appeal is frivolous.           The Pennsylvania Supreme Court has

articulated the procedure to be followed when court-appointed counsel seeks

to withdraw from representing an appellant on direct appeal:

          [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 arguably believes 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

____________________________________________


1
 18 Pa.C.S.A. § 5503(a)(4). Appellant was acquitted of resisting arrest, 18
Pa.C.S.A. § 5104.



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        We note that Attorney Wile has substantially complied with all of the

requirements of Anders as articulated in Santiago. Additionally, Attorney

Wile confirms that he sent a copy of the Anders brief as well as a letter

explaining to Appellant that he has the right to proceed pro se or the right to

retain new counsel.        A copy of the letter is appended to Attorney Wile’s

petition, as required by this Court. See Commonwealth v. Daniels, 999

A.2d 590, 594 (Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d

748, 749 (Pa. Super. 2005).

        We will now proceed to examine the issues counsel set forth in the

Anders brief.2       Appellant argues that the evidence was insufficient to

support his conviction of disorderly conduct. We review a challenge to the

sufficiency of the evidence as follows.

               The standard we apply when 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 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
____________________________________________


2
    Appellant has not filed a response to Attorney Wile’s petition to withdraw.



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      all evidence actually received must be considered. Finally, the
      trier 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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Appellant was convicted of summary disorderly conduct under 18

Pa.C.S.A. § 5503(a)(4), which provides that “[a] person is guilty of

disorderly conduct if, with intent to cause public inconvenience, annoyance

or alarm, or recklessly creating a risk thereof, he: … (4) creates a hazardous

or physically offensive condition by any act which serves no legitimate

purpose of the actor.”

      Our review of the record reveals sufficient facts exist to support a

finding that Appellant’s attempt to spit on the arresting officers created a

“physical offensive condition.”   “Although a precise definition of ‘physically

offensive condition’ is elusive, this term encompasses direct assaults on the

physical senses of members of the public.” Commonwealth v. Williams,

574 A.2d 1161, 1164 (Pa. Super. 1990) (citation omitted). “A defendant

may create such a condition if she sets off a ‘stink bomb,’ strews rotting

garbage in public places, or shines blinding lights in the eyes of others.” Id.

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      Here, it is undisputed that Appellant attempted to spit on arresting

officers during his arrest.     The act of spitting at another individual

undoubtedly constitutes an assault on the physical senses of that person. It

certainly does not strain credulity to conclude that any reasonable person in

the officers’ situation would have been offended (and disgusted) by

Appellant’s actions.   We therefore hold that the evidence in this case is

sufficient to uphold Appellant’s summary disorderly conduct conviction.

      After examining the issues contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed.        Permission to withdraw as counsel

granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




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