J-S09017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
JOSE R. PENA                            :
                                        :
                  Appellant             :   No. 1022 MDA 2017

           Appeal from the Judgment of Sentence May 25, 2017
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                              7925 of 2015


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED APRIL 03, 2018

     Jose R. Pena appeals from the judgment of sentence entered on May

25, 2017, after the trial court found him guilty of a second instance of

indirect criminal contempt. Pena’s counsel, Christine Trout, Esq. (“Counsel”),

has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), together with

a Petition For Leave to Withdraw as Counsel. Upon review, we grant

Counsel’s Petition to Withdraw and affirm Pena’s judgment of sentence.

      The certified record provides the following factual background. The

complainant (“Mother”) and Pena have four children together. On November

23, 2016, the trial court entered an order awarding Mother sole legal and

primary physical custody of the children. Mother obtained a protection from




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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abuse order (“PFA”) against Pena, effective from August 13, 2015, until

August 13, 2018.

      On April 25, 2017, Mother brought her children to the YMCA, at

approximately 8:30 a.m., so they could be bused to daycare. An employee

of the YMCA, Ms. Taylor Light, informed Mother that Pena was lurking

outside and volunteered to walk Mother to her car. Once Ms. Light walked

away, Pena approached Mother shouting and cursing saying “payback is a

bitch.” Mother crossed the street, Pena followed approaching closer. Pena

told Mother, “I hope you fucking crash.” Mother testified that she felt

frightened because Pena had hurt her before.

      Two days following this incident, Mother filed a police report and Pena

was charged with indirect criminal contempt for violating the PFA. After

conducting a hearing on May 25, 2017, the trial court found Pena guilty and

sentenced him to six months’ incarceration. The PFA against Pena was also

extended until May 25, 2020. Pena filed a post-sentence motion, which the

trial court denied on June 8, 2017.

      Pena filed the instant timely appeal and the trial court directed him to

file a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on

Appeal. In response, Counsel filed what amounts to be a Pa.R.A.P.




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1925(c)(4) statement of intent to file a petition to withdraw.1 On December

19, 2017, Counsel filed a petition to withdraw, along with an Anders brief,

wherein she concluded that Pena’s sufficiency of the evidence claim was

frivolous and that she could discern no other meritorious issues to raise on

appeal. Pena filed no response to Counsel’s bid to withdraw, either pro se or

through privately obtained counsel.

       Prior to addressing the issue presented on appeal, we must consider

Counsel’s petition to withdraw. See Goodwin, 928 A.2d at 290. In order to

comply with the dictates of Anders and Santiago, counsel must file a brief

that meets the following requirements:

          (1)    provide a summary of the procedural history and
                 facts, with citations to the record;


____________________________________________


1 We note that Counsel labels her statement as a Rule 1925(b) statement
rather than a Rule 1925(c) statement of “intent to file an
Anders/McClendon brief in lieu of filing a [Rule 1925(b)] Statement.”
Pa.R.A.P. 1925 (c)(4). Accordingly, the trial court found any issue raised by
Pena to be waived for failure to comply with the Pennsylvania Rules of
Appellate Procedure. We conclude that to find waiver in this case would
effectively elevate form over substance. Counsel substantially complied with
Rule 1925(c)(4) in her statement, because she clearly stated that her review
of the record yielded no meritorious issues and also indicated her resulting
intention to file an Anders brief. See Commonwealth v. Goodwin, 928
A.2d 287, 293 (Pa.Super. 2007) (en banc) (holding attorney’s statement
indicating that no non-frivolous matters could be raised on appeal should be
accepted in lieu of a proper Rule 1925(b) statement pursuant to Rule
1925(c)(4)). Accordingly, because our review of the issue raised in Counsel’s
Anders brief is not hampered by the lack of a trial court opinion, we
overlook the misnomer of Counsel’s statement and proceed to address
Pena’s claim.



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         (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.

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa.Super. 2014)

(citation omitted).

      In addition, counsel attempting to withdraw must also provide a copy

of the Anders brief to her client and “advise[] him of his right to retain new

counsel, proceed pro se[,] or raise any additional points that he deems

worthy of the court’s attention, and attach[] to the Anders petition a copy

of the letter sent to the client.” Commonwealth v. Daniels, 999 A.2d 590,

594 (Pa.Super. 2010) (citation omitted).

      Based upon our examination of Counsel’s Petition to Withdraw and

Anders brief, we conclude that Counsel has substantially complied with the

above requirements. In her Anders brief, Counsel represents that she “has

made a conscientious review of the record, [and] believes that this appeal is

wholly frivolous.” See Anders Brief at 6. Counsel includes the requisite

factual and procedural summary, complete with citations to the record. She

supports her conclusion that Pena’s sufficiency claim is frivolous with

citations to pertinent legal authority. Counsel indicates in her Petition to

Withdraw that she has supplied Pena with a copy of her Anders brief and

that she has attached a letter addressed to Pena, in which she explains his


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right to proceed pro se or with privately obtained counsel in order to raise

any additional arguments he believes may be meritorious.

      Having determined that Counsel has met her obligations to withdraw,

we must now “make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.Super.

2015) (quoting Santiago, 978 A.2d at 354 n. 5).

      According to Counsel, Pena’s sole issue on appeal is a challenge to the

sufficiency of the evidence to sustain his conviction for indirect criminal

contempt. “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted). Specifically, we

must determine whether, when viewed in a light most favorable to the

verdict winner, the evidence at trial and all reasonable inferences therefrom

are sufficient for the trier of fact to find that each element of the crime

charged is established beyond a reasonable doubt. See Commonwealth v.

Dale, 836 A.2d 150, 152 (Pa.Super. 2003). “The Commonwealth may

sustain its burden of proving every element of the crime beyond a

reasonable    doubt   by   means    of    wholly   circumstantial   evidence.”

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc)

(citation omitted).




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      Further, “[a]s an appellate court, we do not assess credibility nor do

we assign weight to any of the testimony of record.” Commonwealth v.

Kinney, 863 A.2d 581, 584 (Pa.Super. 2004) (citation omitted). Therefore,

we will not disturb the verdict “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.” Commonwealth v. Bruce, 916 A.2d

657, 661 (Pa.Super. 2007) (citation omitted).

      Instantly, Pena claims that the Commonwealth failed to present

sufficient evidence that he committed the offense of indirect criminal

contempt by violating his PFA. In Commonwealth v. Baker, 766 A.2d 328,

331 (Pa. 2001), our Supreme Court set forth the four elements necessary to

establish a claim of indirect criminal contempt:

         1) [T]he order must be definite, clear, specific and leave no
         doubt or uncertainty in the mind of the person to whom it
         was addressed of the conduct prohibited;

         2) [T]he contemnor must have had notice of the specific
         order or decree;

         3) [T]he act constituting the violation must have been
         volitional; and

         4) [T]he contemnor must have acted with wrongful intent.

Id. (citation omitted).

      After careful review, we agree with Counsel that Pena’s sufficiency

claim is wholly frivolous. The evidence the Commonwealth presented at trial

demonstrated that Pena had an active PFA against him in favor of Mother,



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that he had notice of the PFA, and that he acted in violation of the PFA, with

the intent to harass Mother. Further, our independent review of the record

does not yield any other issue of arguable merit. Therefore, we grant

Counsel’s request to withdraw and affirm Pena’s judgment of sentence.

     Judgment of sentence affirmed. Petition to Withdraw as Counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2018




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