J-S10030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.W.G., A MINOR              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: D.W.G., A MINOR
                                                      No. 2037 EDA 2015


           Appeal from the Dispositional Order entered June 9, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-JV-0001349-2014


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

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 01, 2016

        D.W.G. appeals from the dispositional order entered following the

adjudication of his delinquency on June 9, 2015, for acts constituting simple

assault, terroristic threats, criminal mischief, and possessing an instrument

of crime.1 Additionally, his court-appointed counsel, Elizabeth A. Schneider,

Esq., seeks to withdraw her representation of Appellant pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).          We affirm the judgment of sentence and grant

counsel’s petition to withdraw.

        The Commonwealth adduced the following evidence:

        At the hearing, the victim, Ms. Eldridge testified that on October
        14, 2014, she waited in her Mitsubishi Montero, an SUV, outside
        of her home on Park Lane, Darby Borough, Delaware County,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See 18 Pa.C.S. §§ 2701(a)(1), 2706(a)(1), 3304(a)(5), and 907(a),
respectively.
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     Pennsylvania. Ms. Eldridge said she parked her SUV on the
     street while waiting for her children to get ready for football and
     cheerleading practice. The back door to her vehicle remained
     open allowing her children to load their practice gear.

     At approximately 5:40 P.M. [Appellant’s] mother drove up
     alongside Ms. Eldridge's vehicle and asked who hit her son. Ms.
     Eldridge, having never seen the woman before, responded that
     no one had hit her son. [Appellant’s] mother then drove her
     vehicle around the nearby cul-de-sac and parked on the street
     opposite Ms. Eldridge's vehicle. [Appellant], his brother, and his
     mother each emerged from the vehicle. At this point, Ms.
     Eldridge removed herself from her SUV, closed the back of her
     Montero, and stood beside it.

     [Appellant’s] brother maneuvered around Ms. Eldridge's SUV and
     attacked her, while [Appellant] himself went to the steps of the
     Eldridge home and attacked her son, H.L. Advancing on H.L.,
     [Appellant] said that he was going to “‘F’ him up,” and punched
     him, closed fist, at least twice in the chest and arm. Ms.
     Eldridge saw nothing further between [Appellant] and her son as
     she was subjected to [Appellant’s] brother's aggression. H.L.
     testified that he and [Appellant] were fighting over “something
     stupid” and “over money that had been missing.” H.L. also
     declared that, although [Appellant] threw the first punch, the
     fight was “technically” his own fault. H.L. further testified that,
     after the two hits from [Appellant], the fighting between them
     “just stopped.”

     [Appellant] then approached Ms. Eldridge, punching her twice
     and kicking her at least four times. Ms. Eldridge claim[ed] that
     none of the attacks made contact with her person, but she was
     covering her face while this occurred. During cross-examination,
     Ms. Eldridge explained that she was not hit by any of the
     punches because she was being pulled back by her “life partner.”
     However, in the midst of the fray, Ms. Eldridge sustained an
     injury to her left hand in “the webbing” between her thumb and
     forefinger, which required 15 stitches and reconstructive
     surgery. Although she never saw who or what injured her hand,
     Ms. Eldridge heard [Appellant] say, “that's why I have your hand
     leaking[.]” [T]his alerted her to the blood present on her jeans,
     shirt, and sneakers. Her son testified that he noticed his mother
     bleeding from her hand in the area described, and he heard
     something from [Appellant] that sounded like “that's why you're

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J-S10030-16


      bleeding.” Officer Robert Barber, with the Darby Borough Police
      Department, also noticed that Ms. Eldridge had her hand
      wrapped in a bloody cloth when he later arrived. Vigorous cross-
      examination revealed that, at a preliminary hearing (held on
      January 14, 2015), Ms. Eldridge testified that she did not know
      who attacked her hand, nor did she mention the statement
      “that's why I have your hand leaking.”

      After commenting on Ms. Eldridge's injury, [Appellant] procured
      a bat from his mother's vehicle and shattered the windows to the
      Montero along the passenger side, and on the front windshield.
      The insurance deductible for the damage totaled … $500. Ms.
      Eldridge was the one who called 9-1-1. The officer testified that
      he was the first to arrive on the scene in response to the 9-1-1
      call, and, while pulling up, noticed [Appellant] was standing near
      the Montero holding a silver baseball bat. Approaching the back
      seat of [Appellant’s] mother's car, the Officer saw, in plain view,
      another bat, this one gold in color.

Trial Court Opinion, 08/07/2015, at 1-3 (unnumbered) (citations to

transcript omitted).

      In June 2015, the trial court conducted a hearing, following which the

trial court adjudicated Appellant delinquent and placed him on probation.

Appellant timely appealed; however, the trial court did not direct him to file

a Pa.R.A.P. 1925(b) statement.      Thereafter, Appellant’s trial counsel was

granted leave to withdraw.     In July 2015, the court appointed Attorney

Schneider to represent Appellant.

      In October 2015, Attorney Schneider filed a petition to withdraw from

representing Appellant. She has also filed an Anders brief, asserting that

there are no non-frivolous issues that could be raised in this appeal.

      This Court must first pass upon counsel's petition to withdraw
      before reviewing the merits of the underlying issues presented


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     by [the appellant]. 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 our 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 also must provide a copy
     of the Anders brief to his client. Attending the brief must be a
     letter that advises the client of his 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), appeal denied, 594 Pa. 704, 936 A.2d 40
     (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

Because this matter concerns a juvenile adjudication, counsel must notify

the juvenile’s parents or legal guardian when moving to withdraw.         See

Commonwealth v. Heron, 674 A.2d 1138, 1140 (Pa. Super. 1996). After

determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

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issues overlooked by counsel.”         Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      Here, Attorney Schneider’s Anders brief complies with the above-

stated requirements.         She includes a summary of the relevant factual and

procedural history; she refers to portions of the record that could arguably

support Appellant’s claims; and she sets forth her conclusion that Appellant’s

appeal    is    frivolous.     She   explains     her   reasons    for   reaching   that

determination, supporting her rationale with citations to the record and

pertinent legal authority. Attorney Schneider also states in her petition to

withdraw that she has supplied Appellant with a copy of her Anders brief,

and she attaches a letter directed to Appellant in which she informs him of

the rights enumerated in Nischan. Moreover, she has satisfied the Heron

requirement because her letter is addressed to Appellant in care of his

mother.        Application to Withdraw Appearance, 10/05/2015, at Exhibit A.

Accordingly,      Attorney     Schneider    has    complied       with   the   technical

requirements for withdrawal.

      We will now independently review the record to determine if

Appellant’s claims are frivolous, and to ascertain whether there are other,

non-frivolous issues Appellant could pursue on appeal.                    According to

Attorney Schneider, Appellant contends that the evidence was insufficient to




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J-S10030-16


adjudicate him delinquent for acts constituting terroristic threats.             See

Anders Brief at 2 and 5.2

       Appellant contends that the evidence of terroristic threats was too

weak and inconclusive to permit a reasonable fact finder to adjudicate him

delinquent.     See, generally, Commonwealth v. Bevin, 309 A.2d 421,

424-25 (Pa. 1973) (recognizing that “[a] case is sufficient for a jury to find

guilt unless the proof relied upon for a conviction is so weak and inconclusive

that as a matter of law no probability of fact can be drawn from the

combined      circumstances.”).        According   to   Appellant,   only   a   single

Commonwealth witness heard Appellant state, while advancing on H.L., that

he was going to “‘F’ him up.” As noted by Appellant, this statement was not

corroborated by H.L., the alleged target of Appellant’s threat.

       In a juvenile proceeding, the hearing judge sits as the finder of
       fact. The weight to be assigned the testimony of the witnesses
       is within the exclusive province of the fact finder. In reviewing
       the sufficiency of the evidence, we must determine whether the
       evidence, and all reasonable inferences deducible therefrom,
       viewed in the light most favorable to the Commonwealth as
       verdict winner, are sufficient to establish all of the elements of
       the offenses beyond a reasonable doubt. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence.



____________________________________________


2
   Appellant’s statement of the question presented references the
insufficiency of evidence more generally. See Anders Brief at 2. However,
Appellant’s argument focuses solely on terroristic threats. Id. at 5.



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In re L.A., 853 A.2d 388, 391 (Pa. Super. 2004) (internal citations

omitted). Moreover, the fact finder “is free to believe all, part, or none of

the evidence.”      Commonwealth v. Newton, 994 A.2d 1127, 1132 (Pa.

Super. 2010).

        To establish delinquency for terroristic threats, the Commonwealth

must prove that (1) the juvenile made a threat to commit a crime of

violence; and (2) such threat was communicated with the intent of

terrorizing another or with reckless disregard for the risk of causing terror.

In re L.A., 853 A.2d at 392; see also 18 Pa.C.S. § 2706(a)(1). “A direct

communication between the defendant and the victim is not required to

establish the crime of terroristic threats.”        In re L.A., 853 A.2d at 392.

Finally, the trial court may infer an intent to terrorize from the totality of the

circumstances. In re J.H., 797 A.2d 260, 263 (Pa. Super. 2002).

        Here, Ms. Eldridge testified that Appellant threatened to commit an act

of violence upon her son, H.L., when Appellant declared that he was going to

“‘F’ him up.” Notes of Testimony, 06/09/2015, at 15. The trial court credited

this statement. As the fact finder, the court was free to do so. Newton,

994 A.2d at 1132. Moreover, it was unnecessary for the Commonwealth to

establish that H.L. heard the threat. In re L.A., 853 A.2d at 392. Rather, it

was sufficient that Ms. Eldridge heard Appellant’s threat.           Id.    Finally, the

trial   court   properly   inferred   an   intent   to   terrorize   from   Appellant’s

subsequent acts of violence. In re J.H., 797 A.2d at 263.


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     For the above reasons, Appellant’s claim is frivolous.   Moreover, our

review of the record reveals no other non-frivolous issues Appellant could

assert on appeal.

     Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




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