Com. v. Eady, D.

J-S53023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DORIAN EADY,

Appellant No. 218 WDA 2014

Appeal from the Judgment of Sentence of March 14, 2012
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001967-2011

BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014

Appellant, Dorian Carl Eady, appeals from the judgment of sentence

entered on March 14, 2012 as made final by the denial of his post-sentence

motion on January 14, 2014. On this direct appeal, Ap -

appointed counsel has filed both a petition to withdraw as counsel and an

accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386

U.S. 738 (1967). We conclu

the procedural requirements necessary to withdraw. Furthermore, after

independently reviewing the record, we conclude that the appeal is wholly

affirm the

judgment of sentence.

* Retired Senior Judge assigned to the Superior Court.
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The factual background of this case is as follows. At approximately

2:30 a.m. on June 7, 2011, Appellant began banging on his ex-girlfriend,

needed to use her phone. She let him in the house and gave Appellant her

bed. A.D. told him to leave but he protested that no buses were running

and he had nowhere to go. A.D. then told him to go sleep on the couch.

Appellant then left the bedroom and went to the living room and laid on the

-year-old daughter told A.D. that she did not

want Appellant in the house. A.D. then went back into the living room and

told Appellant that he had to leave the house immediately.

Appellant pushed A.D., while she was holding her ten-month-old son,

into a recliner. Appellant grabbed her throat and threatened to kill her. He

slapped her. A.D. was able to

-year-

old daughter and two-year-old son slapping him. Appellant followed A.D.

into her bedroom and pushed her down on the bed. He continued choking

and slap

he wanted and proceeded to unzip his pants and pull out his penis while

-year-old daughter spit on Appellant which

permitted A.D. to escape to her living room. Appellant pursued her and

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-year-old daughter then

punched Appellant again which allowed A.D. to escape the house. At that

point, Appellant left the house.

The procedural history of this case is as follows. On June 9, 2011,

Appellant was charged via criminal complaint with indecent assault,1

indecent exposure,2 and simple assault.3 A criminal information charging

those same offenses was filed on August 25, 2011. On January 25, 2012,

Appellant was found guilty, in absentia, of all three offenses. On March 14,

imprisonment. Appellant timely appealed. On June 11, 2012, this Court

dismissed the appeal for failure to file a docketing statement pursuant to

Pennsylvania Rule of Appellate Procedure 3517. Commonwealth v. Eady,

646 WDA 2012 (Pa. Super. June 11, 2012) (per curiam).

On September 21, 2012, Appellant filed a petition pursuant to the

Post- -9546. Counsel

was appointed and filed an amended petition. On September 13, 2013, the

ght to file a

post-sentence motion and direct appeal nunc pro tunc. On September 23,

1
18 Pa.C.S.A. § 3126(a)(1).
2
18 Pa.C.S.A. § 3127(a).
3
18 Pa.C.S.A. § 2701(a)(1).

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2013, Appellant filed a post-sentence motion. On January 8, 2014, the trial

-sentence motion. This timely appeal followed.4

Appellant Anders brief:

1. Did the [trial] court err when it, Appellant claims, failed to
permit him to participate in [the] jury selection in his case?

2. Did the [trial] court err when, Appellant argues, the [trial]
court failed to set bail for him during the pretrial stages of
this case?

3. Should this case have been dismissed because no affidavit of
probable cause [was ever filed or presented]?

4. Was the sentence in this case manifestly excessive and
clearly unreasonable, and not individualized as required by
[law?]

Anders Brief at 8 (complete capitalization removed).

In his pro se Anders brief, Appellant raises eight

issues:

1. [Was Appellant improperly denied bail prior to trial?

2. Were proper charging documents filed to initiate this criminal
case?

3. Was Appellant denied the right to counsel at his preliminary
hearing?

4.
assistance?

4
On February 5, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On

Pennsylvania Rule of Appellate Procedure 1925(c)(4) of his intent to file an
Anders brief. In light of that notice, the trial court did not issue a Rule
1925(a) opinion.

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5.

6. Did
assistance?

7.

8. -trial motion counsel render ineffective
assistance?]
5
See generally

Before reviewing the merits of this appeal, this Court must first

determine whether counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. See Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). To withdraw

under Anders, court-appointed counsel must satisfy certain technical

and state that after making a conscientious examination of the record, he

has determined that the appeal is frivolou Commonwealth v.

Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel:

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

(2) refer[s] to anything in the record that counsel believes
arguably supports the appeal;

5
issues have been reordered for ease of disposition.

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and

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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014), quoting

Santiago, 978 A.2d at 361.

Finally, counsel must furnish a copy of the Anders brief to his client

pro se[,] or

and attach[] to the Anders

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

Santiago, 978 A.2d at 355 n.5, quoting

McClendon, 434 A.2d at 1187. It is only when both the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw. In the case at bar, counsel has met all of the above procedural

obligations.6 We now turn to whether this appeal is wholly frivolous.

6

counsel contains a factual inaccuracy. In his petition to withdraw, counsel
(Footnote Continued Next Page)

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Anders brief is whether the trial

court erred by removing the defendant from the courtroom prior to jury

the Sixth Amendment of the federal constitution as applied to the states via

the Fourteenth Amendment due process clause, defendants have the right to

Commonwealth v. Kelly, 78 A.3d

1136, 1141 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014)

(citations omitted); see Gomez v. United States, 490 U.S. 858, 873

(1989) (citation omitted) (defendants have a constitutional right to be

present during jury selection); see also The

defendant shall be present at every stage of the trial including the

impaneling of t

States, our Supreme] Court has recognized that the right to be present in

-

Commonwealth v. Hunsberger, 58 A.3d 32, 38 (Pa. 2012).

disruptive criminal defendant from trial. . . . [W]hen a defendant is abusive

and disruptive to the proceedings, the trial judge does not abuse his

discretion in having him removed from th Commonwealth v.
_______________________
(Footnote Continued)
states that Appellant pled guilty instead of being found guilty. However, in
his Anders brief counsel makes clear that Appellant proceeded to trial. It is

does not satisfy the procedural requirements for withdrawal.

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Thomas, 879 A.2d 246, 254 255 (Pa. Super. 2005), appeal denied, 989

A.2d 917 (Pa. 2010) (citation omitted).

The record reflects that in November 2011, on the eve of trial,

Appellant obtained private counsel and his trial was continued until January

2012. On January 25, 2012, the day his trial was scheduled to begin,

Appellant attempted to fire his privately retained counsel because he refused

to file patently frivolous motions. For example, Appellant asked counsel to

file a motion demanding that only African-Americans be included in the

venire. The trial court was notified of this development and attempted to

engage in a colloquy with Appellant to determine whether to permit him to

proceed pro se. See Commonwealth v. Cooper, 27 A.3d 994, 1001-1002

(Pa. 2011).7

Id. The trial court asked if

Id.

Id. at 34-35. The trial court then asked again,

Id. at 35.

Id. When

7
The trial court never finished the colloquy because Appellant refused to
answer the questions being posed by the trial court. See N.T., 1/25/12, at
45-46. Thus, the trial court denied Appe

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N.T., 1/25/12, at 35. The trial court then warned

that if Appellant did not behave, a jury would be selected without Appellant

being present. See id. at 36.

Id. The trial court

gave Appellant one last chance and asked him again if he were going to

behave. See id. Appellant continued to cause a disturbance by telling the

See id. at 36-37. Finally, the

trial court ordered Appellant removed from the courtroom. Id. at 37. The

trial court informed Appellant that if he changed his mind and wanted to

behave himself he could inform the courtroom deputies and he would be

permitted to return to the courtroom. Id. at 37-38. Prior to the

commencement of jury selection, the trial court found that:

cooperate in jury selection, he indicated through his
obstreperous behavior he answered that in the negative, and
[the trial court] made it plain to [Appellant] . . . any time that

courtroom.

N.T., 1/25/12, at 45.

f

discretion. To the contrary, the trial court gave Appellant every chance it

could to remain in the courtroom for jury selection. Even after having

Appellant removed from the courtroom, the trial court made it clear that

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Appellant was free to return and participate in jury selection if he agreed to

behave himself. Instead, Appellant chose to act belligerently and refused to

volous.8

Anders brief is whether

the trial court erred by not granting bail prior to trial. This issue is moot as

Appellant has been convicted and sentenced. If Appellant wished to

challenge the denial of pre-trial bail, he was required to do so prior to trial.

At this stage in the proceedings, even if the trial court did err by not

granting pre-trial bail there is no relief that can be granted. As a moot issue

is frivolous, the second issue raised in couns Anders brief is frivolous.

Anders brief is whether the

trial court erred by not dismissing the case for failure to file an affidavit of

probable cause. However, once charges have been held over for court,

failure to furnish an affidavit of probable cause is moot. Commonwealth v.

Chamberlain, 30 A.3d 381, 423 (Pa. 2011) (citation omitted). Thus, the

Anders brief is frivolous.

Anders brief is whether

8
We note that the trial court exercised an immense amount of restraint in
declining to hold Appellant in criminal contempt of court. See N.T., 3/14/12,
at 5. Furthermore, the trial court exercised restraint by not considering

appropriate sentence. See id.

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See Commonwealth v. Disalvo, 70 A.3d

in the sound discretion of the sentencing judge, and a sentence will not be

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted). As Appellant was

sentenced within the standard range of the guidelines, we may only vacate

case involves circumstances where the

§ 9781(c)(2); see Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.

Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).

Pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b). Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

As this Court has explained:

To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, Pa.R.Crim.P. 720;

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).

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Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citation

omitted). Appellant filed a timely notice of appeal and properly preserved

the issue for our review in his post- Anders brief

also contains a statement pursuant to Pennsylvania Rule of Appellate

Procedure 2119(f). We now turn to whether the appeal presents a

substantial question.

actions by the trial court inconsistent with the Sentencing Code or contrary

Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013), appeal

denied

issue raises a substantial question is to be evaluated on a case-by-case

Id.

Appellant contends that this appeal raises a substantial question

because the trial court failed to give meaningful consideration to his status

as an upstanding member of society and his status as the sole supporter for

sentencing court did not consider certain mitigating factors does not raise a

Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.

Super. 2003), citing Commonwealth v. Archer, 722 A.2d 203 (Pa. Super.

1998) (en banc). Because Appellant has not identified a substantial question

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J-S53023-14

as to whether his sentence is appropriate under the Sentencing Code and

consistent with fundamental norms of sentencing, he is not entitled to relief.

Furthermore, even if Appellant raised a substantial question, we fail to

see how this case involves circumstances in which the application of the

guidelines was unreasonable. Appellant committed a serious, violent offense

against a former lover. He lied to gain entry to her house and proceeded to

assault A.D. He attempted to sexually assault A.D. in the presence of her

four-year-old daughter and two-year-old son. If it were not for the actions

-year-old daughter, Appellant may have been successful in

committing far more serious offenses. Even after A.D. was able to escape

from the attempted sexual assault, Appellant continued to physically assault

her. Again, if it were not for the actions of -year-old

daughter, the outcome of this case could have been even more tragic. The

trial court carefully weighed all of the relevant sentencing factors and

concluded that a guideline sentence was appropriate. Thus, any challenge to

the di

pro se response

Anders

noted above, the failure to set bail prior to trial is moot since Appellant has

been convicted and sentenced.

In his second issue, Appellant claims that no formal charging

documents were filed in this matter. However, as noted above a criminal

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complaint and criminal information were filed in this case. Thus, proper

formal charging documents were filed to initiate the charges against

Appellant.

In his third issue, Appellant alleges that he was denied the right to

counsel at his preliminary hearing. However, the record reflects that

Appellant was represented by counsel at the preliminary hearing. Although

Appellant was also removed from the preliminary hearing for causing a

disruption, his counsel was present for the entirety of the proceeding. Thus,

Ap

raised on direct appeal, and instead must be raised in a PCRA petition.

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). As such,

right to raise such claims in a PCRA petition.

Anders

brief are frivolous. The eight issues raised in

Anders brief are either frivolous or may not be raised on direct

appeal. Furthermore, after an independent review of the entire record,9 we

conclude that no other issue of arguable merit exists. Therefore, we will

9
The entire record, which we have independently reviewed, includes the
numerous letters sent by Appellant and referenced in his pro se response.

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grant

raised on appeal are frivolous, or may not be pursued on direct appeal, we

will affirm the judgment of sentence.

Application to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014

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