Commonwealth v. Simmons

Full title: COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMAL SIMMONS Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Jul 3, 2018

No. 1314 MDA 2017 (Pa. Super. Ct. Jul. 3, 2018)

Opinion

J-S01035-18 No. 1314 MDA 2017

07-03-2018

COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMAL SIMMONS Appellant

MEMORANDUM BY GANTMAN, P.J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence July 10, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000887-2016 BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:

Appellant, Jamal Simmons, appeals from the judgment of sentence entered in the Court of Common Pleas of Berks County Criminal Division, following his bench trial convictions of persons not to possess, use, manufacture, control, sell, or transfer firearms, and firearms not to be carried without a license.¹ We affirm and grant counsel's petition to withdraw.

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), respectively.

In its opinions, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.

As a preliminary matter, appellate counsel seeks to withdraw representation, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago , supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super. 2007). After establishing that counsel has met the antecedent requirements to withdraw, this Court makes an independent review of the record to confirm that the appeal is wholly frivolous. Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa.Super. 2006). See also Commonwealth v. Dempster , 2018 PA Super 121 (filed May 8, 2018) (en banc).

In Santiago , our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon ² requires that counsel's brief provide an argument of any sort, let alone the type of

argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.


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Under Anders , the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.

Santiago , supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[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 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.

Id. at 178-79, 978 A.2d at 361.

2 Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981).

Instantly, appellate counsel filed a petition to withdraw, which states counsel conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to retain new counsel or proceed pro se to raise any additional issues Appellant deems worthy of this Court's attention. In the Anders brief, counsel provides a summary of the facts and procedural history of the case. Counsel's argument refers to relevant law that might arguably support Appellant's issue. Counsel further states the reasons for the conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements of Anders and Santiago . Appellant has not responded to the Anders brief pro se or with newly retained private counsel.

Counsel raises the following issues on Appellant's behalf:

WHETHER THE TRIAL COURT ERRED IN DENYING [APPELLANT]'S OMNIBUS PRETRIAL MOTION FOR SUPPRESSION BASED ON AN UNLAWFUL ARREST AS THE WARRANTS WERE NOT VALID AT THE TIME OF THE ARREST[?]

WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO AN AGGREGATE TERM OF INCARCERATION OF 8½-17 YEARS, WHICH SENTENCE IS MANIFESTLY EXCESSIVE UNDER THE CIRCUMSTANCES OF THE CASE THAT THE PERSONS NOT TO POSSESS, USE, MANUFACTURE, CONTROL, SELL OR TRANSFER FIREARMS AND FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE ARISE FROM THE SAME CRIMINAL EPISODE AND DO NOT WARRANT CONSECUTIVE SENTENCES.

( Anders Brief at 5).

Appellant complains of the order denying his omnibus pretrial motion to suppress. Specifically, Appellant claims his arrest was unlawful because the warrant used to detain him was invalid. Because a valid arrest warrant did not exist at the time of his arrest, Appellant concludes the gun seized upon his arrest should have been suppressed.

Appellant also argues the imposition of consecutive sentences unfairly led to an excessive aggregate sentence of incarceration of eight and a half (8½) to seventeen (17) years. Specifically, Appellant asserts the charges arose from a single incident involving one gun; and the imposition of consecutive sentences was manifestly unwarranted, clearly unreasonable, and contrary to the fundamental norms underlying the sentencing code. Appellant submits the court failed to give adequate reasons to impose the sentence.³ As presented, Appellant's second issue involves the discretionary aspects of sentencing. See Commonwealth v. Gonzalez-Dejusus , 994 A.2d 595 (Pa.Super. 2010) (explaining challenge to imposition of consecutive sentences involves discretionary aspects of sentencing); Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive refers to discretionary aspects of sentencing).

3 Appellant's post-sentence motion did not include or fairly imply a claim regarding the adequacy of the court's reasons for the sentence imposed. Therefore, we give that claim no further attention.

Review of an order denying a motion to suppress evidence implicates the following principles:

[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, [the appellate court is] bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where...the appeal of the determination of the suppression court turns on allegations

of legal error, the suppression court's legal conclusions are not binding on [the] appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the [trial court are] subject to plenary review.

Commonwealth v. Hoppert , 39 A.3d 358, 361-62 (Pa.Super. 2012), appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases." Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 a.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks omitted).

"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Sierra , supra at 912-13. When considering whether an appellant has raised a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich , 903 A.2d 1247 (Pa.Super. 2006). Rather, the appellant must articulate how the sentencing court's actions violated the sentencing code. Id.

"Generally, Pennsylvania law 'affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.'" Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa.Super. 2011) (quoting Commonwealth v. Pass , 914 A.2d 442, 446-47 (Pa.Super. 2006)). See also Commonwealth v. Foust , 180 A.3d 416, 436 (Pa.Super. 2018) (regarding mere challenge to imposition of concurrent versus consecutive sentences, Pennsylvania has long disavowed volume discounts on multiple crimes).

"When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant [and], of course, the court must consider the sentencing guidelines." Commonwealth v. Fullin , 892 A.2d 843, 847-48 (Pa.Super. 2006). A sentencing court may consider any legal factor in imposing an aggravated range sentence. Commonwealth v. Bowen , 975 A.2d 1120, 1122 (Pa.Super. 2009). The "court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). Where the sentencing court had the benefit of a presentence investigative ("PSI") report, we can presume the court "was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers , 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988).

Our standard of review concerning the discretionary aspects of sentencing states:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hyland , 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). This Court considers four factors:

§ 9781. Appellate review of sentence

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(d) Review of record.—In reviewing the record the appellate court shall have regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d)(1)-(4). Our Supreme Court explained, "the concept of unreasonableness" in the context of sentencing is "inherently a circumstance-dependent concept that is flexible in understanding and lacking precise definition." Commonwealth v. Walls , 592 Pa. 557, 568, 926 A.2d 957, 963 (2007).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Paul M. Yatron, President Judge, we conclude Appellant's issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. ( See Trial Court Opinion, filed August 16, 2016, at 1-4; Trial Court Opinion, filed September 27, 2017, at 1-4;) (finding: (1) at suppression hearing, Criminal Investigator Eric Sweitzer testified that on December 29, 2015, he verified existence of outstanding warrant before attempting to apprehend Appellant; Pennsylvania Board of Probation and Parole warrant was valid and outstanding; CI Sweitzer stated he knew Appellant by sight from previous interactions; CI Sweitzer testified during struggle leading to Appellant's arrest, Appellant repeatedly reached toward his right ankle; search of Appellant incident to arrest revealed concealed firearm on his person near his right ankle; handgun seized was admissible at trial; (2) court had benefit of PSI report when it sentenced Appellant; court concluded Appellant's actions in combination with his prior criminal record made clear he is capable of harming community; sentencing court considered Appellant's status as repeat felon; court sentenced Appellant at or below mitigated range on both charges; sentencing court properly exercised its discretion to impose sentences consecutively). Following our independent review of the record, we agree with counsel and conclude the appeal is frivolous. See Dempster , supra ; Palm , supra . Accordingly, we affirm on the basis of the trial court's opinions and grant counsel's petition to withdraw.

Judgment of sentence affirmed; counsel's petition to withdraw is granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/3/18

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