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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL BRUCE WILLIAMS, :
:
Appellant : No. 873 WDA 2014
Appeal from the Judgment of Sentence Entered April 28, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0003349-2012.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 11, 2015
Appellant, Michael Bruce Williams, appeals from the judgment of
sentence imposed following his convictions of rape, aggravated assault,
recklessly endangering another person (“REAP”), and possessing
instruments of a crime (“PIC”). Appellate counsel has filed a petition to
withdraw her representation and a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), which govern a withdrawal from representation on direct appeal.
Appellant has filed a response to counsel’s petition to withdraw. We grant
counsel’s petition to withdraw and affirm the judgment of sentence.
The trial court summarized the history of this case as follows:
In the early morning hours of March 18, 2012, [Victim]
consumed alcohol at a house party and left seeking money to
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buy crack cocaine. N.T. Trial (Day 1), 1/16/14, at 27, 29-32.
[Victim] walked to the Shell gas station on East 6th Street, City
of Erie, and saw Appellant standing outside. Id., at 31-32.
[Victim] approached Appellant, propositioned him, and asked if
he had money. Id., at 33. Appellant replied “yeah” and [Victim]
asked [Appellant] to come into the alley with her. Id., at 33.
They both entered the alley and [Victim] asked [Appellant]
for the money. Id., at 34. Once she realized that Appellant had
no money, [Victim] tried to leave. Id., at 34. Appellant grabbed
[Victim’s] arm, began fondling her breasts and buttocks, and
attempted to remove her clothes. Id., at 35-39. Appellant hit
[Victim] and she tried unsuccessfully to fight [Appellant] off with
her screwdriver. Id., at 39, 41. [Victim] attempted to dial 911
from her cell phone, but Appellant took it and put it in his
pocket. Id., at 40.
When she attempted to leave again, Appellant punched
[Victim] in the face and slammed her to the ground. Id., at 42-
43. Appellant removed [Victim’s] pants and underwear. While
[Victim] was lying on her stomach, Appellant began “humping
her from behind” with his penis in her vaginal and anal areas.
Id., at 43, 45, 48, 49, 52, 64. [Victim] could feel [Appellant’s]
penis on her buttocks and the outer lips of her vaginal area. Id.,
at 86, 89. Appellant also placed a belt around [Victim’s] neck
and struck [Victim] in the eye with the belt buckle. Id., at 43,
50.
Over the course of several hours, [Victim] repeatedly told
[Appellant] to stop and even told him [that] she had AIDS. Id.,
at 59-60, 80-82. Appellant refused to stop until approximately
7:00 a.m., when Erie Police Department Officer Pete Dregalla
arrived at the scene. Id., at 94. Dregalla entered the alley,
heard [Victim] yelling for him, and saw Appellant on top of
[Victim] with his pants down. Id., at 96-98. Appellant stood up
and pulled up his pants, while [Victim] was screaming. Id., at
98-99. [Victim] was visibly upset and Dregalla noticed that
[Victim] had a swollen, black eye and minor scrapes. Id., at
100, 104. He also saw clothes, a belt, screwdriver, and
[Victim’s] wig on the ground. Id., at 100, 108.
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After Appellant was arrested and transported to the police
station, police recovered [Victim’s] cellular phone from Appellant
during the booking process. Id., at 104-105.
[Victim] was transported to the hospital and Jill Little, a
sexual assault nurse examiner, performed a forensic
examination. Id., at 56, 113, 115. Before the internal
examination, [Victim] indicated to [Little] that there was vaginal
penetration and Appellant attempted anal penetration. Id., at
124. Little observed that [Victim], who was visibly upset, had a
swollen/bruised eye and dirt in her hair and on her body. Id., at
119-121. [Victim] complained of tightness in her neck from the
belt and abdominal pain where [Victim] was kicked by Appellant.
Id., at 122, 130. [Victim] also complained of pain around her
hymen. Id., at 123, 127.
During the examination, Little observed an abrasion near
[Victim’s] clitoral hood and swelling to [Victim’s] hymen. Id., at
123, 127. [Victim] complained of pain when Little tried to insert
a speculum and, therefore, [Little] stopped the internal
examination. Id., at 123, 127.
On September 26, 2012, Erie Police Department James
Spagel took videotaped statements from Appellant and [Victim].
On January 17, 2014, following a two-day jury trial,
Appellant was found guilty of the foregoing offenses. This Court
subsequently ordered a sexual violent predator (SVP)
assessment pursuant to Pennsylvania’s version of “Megan’s
Law,[”] the Sexual Offender Registration and Notification Act, 42
Pa.C.S.A. § 9799.10, et. seq. (“SORNA"). By letter dated April
14, [2014], the Sexual Offenders Assessment Board determined
that Appellant did not meet the criteria of a sexually violent
predator.
On April 28, 2014, Appellant was sentenced to the
following: 6 to 20 years’ imprisonment for Count 1 (rape); 1 ½
to 5 years imprisonment for Count 2 (aggravated assault),
consecutive to Count 1; 6 to 24 months’ imprisonment for Count
3 (recklessly endangering another person), concurrent to Count
1; and, 9 to 60 months’ imprisonment for Count 4 (possessing
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instruments of a crime), concurrent to Count 1. Appellant did
not file a post-sentence motion.
On May 27, 2014, Appellant filed a timely Notice of Appeal.
In response to this Court’s 1925(b) Order, Appellant filed a
timely Statement of Matters Complained of on Appeal on July 1,
2014.
Trial Court Opinion, 7/21/14, at 1-3.
As noted, counsel has filed a petition to withdraw from representation.
Before we address the questions raised on appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal.
The procedural mandates are that counsel must
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious
examination of the record. Following that review, counsel concluded that
the present appeal is wholly frivolous. Counsel sent to Appellant a copy of
the Anders brief and petition to withdraw, as well as a letter, a copy of
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which is attached to the petition to withdraw. In the letter, counsel advised
Appellant that he could represent himself or that he could retain private
counsel to represent him.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that
in 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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. It sets forth the history of
this case and outlines pertinent case authority. We thus conclude that the
procedural and briefing requirements for withdrawal have been met.
Counsel presents the following issue for our review:
Whether the appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Sentencing Code?
Appellant’s Brief at 3.
Appellant argues that the trial court abused its discretion in imposing
the sentence in this case. Specifically, Appellant contends that the sentence
imposed was harsh and excessive in light of the factors which should have
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been considered by the sentencing court. Thus, counsel is purporting to
present a challenge to the discretionary aspects of Appellant’s sentence.
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be
considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we
reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d
790 (Pa. Super. 1995), wherein this Court observed that, although
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Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions
as optional, the rule expressly provides that only issues raised in the trial
court will be deemed preserved for appellate review. Applying this principle,
the Reeves Court held that an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. Commonwealth v. Parker, 847 A.2d 745 (Pa.
Super. 2004) (holding challenge to discretionary aspect of sentence was
waived because appellant did not object at sentencing hearing or file post-
sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super.
2000) (same).
Initially, we conclude that the first requirement of the four-part test is
met because Appellant brought this direct appeal in a timely manner
following the imposition of sentence. However, our review of the record
reflects that Appellant did not meet the second requirement because he did
not raise his current challenge in a post-sentence motion or at the time of
sentencing. Therefore, we are constrained to conclude that Appellant’s issue
is waived, and we are precluded from addressing the merits of this issue on
appeal.
Also, as noted above, Appellant filed an eighty-page pro se response
to counsel’s petition to withdraw, which we have reviewed. In his response,
Appellant asserts bald claims that there was insufficient evidence to support
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his convictions, and that the evidence presented against him lacked
credibility.
Regarding Appellant’s attempt to argue that the evidence was
insufficient to support his convictions, when challenging the sufficiency of
the evidence on appeal, an appellant must specify the element or elements
upon which the evidence was insufficient in order to preserve the issue for
appeal. See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009) (finding sufficiency claim waived for failure to specify either in Rule
1925(b) statement or in argument portion of appellate brief which elements
of crimes were not proven beyond a reasonable doubt). In his response to
counsel’s petition to withdraw, Appellant has failed to specify which elements
of his crimes were allegedly not proven beyond a reasonable doubt by the
Commonwealth. Consequently, Appellant’s non-specific claims challenging
the sufficiency of the evidence that fail to specify the elements of the crimes
allegedly not proven by the Commonwealth are waived.
Furthermore, as for Appellant’s pro se challenge to the credibility of
the evidence presented by the Commonwealth, we observe that such a claim
is properly characterized as a weight of the evidence challenge.
Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa. Super. 2003).
Indeed, a challenge to the weight of the evidence questions which evidence
is to be believed. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.
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Super. 2006). However, Appellant has failed to preserve a challenge to the
weight of the evidence for our review. Pennsylvania Rule of Criminal
Procedure 607 and its comment instruct that in order to preserve for
appellate review a claim that a verdict is against the weight of the evidence,
the issue must be raised with the trial judge in a motion for a new trial
either orally or in writing prior to sentencing, or in a post-sentence motion.
See Pa.R.Crim.P. 607. Here, Appellant never filed with the trial court an
oral or written motion for a new trial prior to sentencing, or a post-sentence
motion challenging the weight of the evidence. Accordingly, we conclude
that Appellant’s pro se claims challenging the weight of the evidence are
waived. See Pa.R.Crim.P. 607; Commonwealth v. Butler, 729 A.2d 1134,
1140 (Pa. Super. 1999) (holding that a challenge to the weight of the
evidence is waived for failure to present the issue first to the trial court).
To the extent that Appellant has presented in his pro se response to
counsel’s petition to withdraw claims that his trial counsel was ineffective for
various reasons, we observe that in Commonwealth v. Grant, 813 A.2d
726 (Pa. 2002), the Pennsylvania Supreme Court stated that “as a general
rule, a petitioner should wait to raise claims of ineffective assistance of trial
counsel until collateral review.” Id. at 738. Underlying this rule is the
Supreme Court’s observation that “time is necessary for a petitioner to
discover and fully develop claims related to trial counsel ineffectiveness.”
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Id. at 737-738. Thus, “the record may not be sufficiently developed on
direct appeal to permit adequate review of ineffectiveness claims[.]” Id. at
737. Because appellate courts do not normally consider issues that were not
raised and developed in the court below, the Grant court reasoned that
“[d]eferring review of trial counsel ineffectiveness claims until the collateral
review stage of the proceedings offers a petitioner the best avenue to effect
his Sixth Amendment right to counsel.” Id. at 738.
In Grant, however, our Supreme Court acknowledged that under
limited circumstances, the Court could create exceptions and review certain
claims of ineffectiveness on direct appeal. Grant, 813 A.2d at 738 n.14. In
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), the Pennsylvania
Supreme Court made an exception to the rule it announced in Grant.
“[C]laims of ineffectiveness may be heard on direct appeal, where the claims
were raised before the trial court, and a record was developed.”
Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa. Super. 2010) (citing
Bomar, 826 A.2d at 845).
Subsequently, in Commonwealth v. Arrington, 86 A.3d 831 (Pa.
2014), our Supreme Court explained that trial courts retain discretion to
address ineffective assistance of counsel claims prior to the filing of a
petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546, in certain limited situations, as follows:
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We recently held in [Commonwealth v. Holmes, 79 A.3d
562 (Pa. 2013),] that claims of ineffective assistance of counsel
litigated after our decision in Grant, are not generally a proper
component of a defendant’s direct appeal. In Holmes, this
Court reaffirmed the general rule of deferral established in
Grant, and disapproved of expansion of the so-called Bomar
exception, which allowed for the presentation of ineffectiveness
claims on direct appeal if the trial court held an evidentiary
hearing and disposed of the ineffectiveness claims in its opinion.
This Court in Holmes limited the Bomar exception to its pre-
Grant facts. We further recognized two exceptions to the Grant
deferral rule, both falling within the discretion of the trial court.
First, we held that trial courts retain discretion, in extraordinary
circumstances, to entertain a discrete claim of trial counsel
ineffectiveness if the claim is both apparent from the record and
meritorious, such that immediate consideration best serves the
interest of justice. Second, we held that trial courts also have
discretion to entertain prolix claims of ineffectiveness if there is a
good cause shown and the unitary review thus permitted is
accompanied by a knowing and express waiver by the defendant
of the right to pursue a first PCRA petition.
Arrington, 86 A.3d at 856-857 (footnote omitted).
Instantly, our review of the record reflects that the exceptions
announced in Holmes do not apply. Appellant did not raise claims of
ineffective assistance of trial counsel before the trial court. Thus, the trial
court has not exercised its discretion by reviewing Appellant’s claims of
ineffective assistance of counsel. In addition, Appellant has not waived his
right to later PCRA review. While Appellant is free to raise claims of
ineffective assistance of counsel in a future PCRA petition, we may not
address any issues of trial counsel ineffectiveness on direct appeal. Hence,
because Appellant’s ineffective assistance of counsel claims do not fall into
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the exceptions discussed above, we dismiss his claims without prejudice to
Appellant’s right to raise them on collateral review pursuant to the PCRA.
See Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014) (dismissing,
pursuant to Holmes, the appellant’s ineffective assistance of counsel claims
raised on direct appeal without prejudice to pursue them on collateral
review). Thus, Appellant has not set forth any claim that we may address,
or any argument upon which we could grant relief.
We also have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having
concluded that there are no meritorious issues, we grant Appellant’s counsel
permission to withdraw, and affirm the judgment of sentence.1
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
1
We note that in his pro se response to counsel’s petition to withdraw,
Appellant has requested that his pro se response be returned to him in the
event that this Court denies relief. Accordingly, the Superior Court
Prothonotary is directed to return to Appellant the original copy of his pro se
response to counsel’s petition to withdraw.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2015
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