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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ZACHARIAH JOHNSON
Appellant No. 1929 MDA 2013
Appeal from the Judgment of Sentence July 2, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001337-2012
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 13, 2015
Appellant Zachariah Johnson appeals from the judgment of sentence
entered in the Centre County Court of Common Pleas. Appellant’s counsel
filed an Anders1 brief and a petition for leave to withdraw as counsel. We
affirm and grant counsel’s petition for leave to withdraw.
In its opinion denying Appellant’s post-sentence motions, the trial
court summarized the factual and procedural history as follows:
[Appellant] and his co-defendant, Joseph Jenkins, were
charged with Robbery, Conspiracy, and Simple Assault for
an incident that occurred on July 9, 2011 outside of the
Parkway Plaza Apartments. Defendants approached
Anthony Caracillo while he was urinating by a dumpster
behind the apartment complex and asked him for money
to buy more beer for the party that they had all been
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1
Anders v. California, 386 U.S. 738 (1967).
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attending. Mr. Caracillo gave one of the defendants a
dollar, and then walked past them. Defendants then
attacked Mr. Caracillo and stole possessions off of his
person, ultimately leaving him injured, bloodied, and with
a broken jaw.
A jury trial was held on May 21, 2013. [Appellant] was
found guilty of Robbery—Bodily Injury, 18 [Pa.C.S.] §
3701, 18 [Pa.C.S.] § 306; Criminal Conspiracy, Robbery—
Bodily Injury, 18 [Pa.C.S.]. § 3701, 18 [Pa.C.S.] §
903(a)(1); and Simple Assault, 18 [Pa.C.S.] § 2701(a)(1),
18 [Pa.C.S.] § 306(a). [Appellant] was sentenced on July
2, 2013, to a total sentence of 5 1/2 to 11 years in a State
Correctional Facility.
Opinion, 10/10/2013, at 1-2.
Appellant filed a post-sentence motion arguing that simple assault
merged with robbery for sentencing purposes. Opinion, 10/10/2013. On
October 10, 2013, the trial court denied the post-sentence motion. On
October 25, 2013, Appellant’s counsel filed a timely notice of appeal. On
November 15, 2013, Appellant’s counsel filed a statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). That same day, the trial court issued its 1925(a)
opinion.2
On November 22, 2013, Appellant filed with this Court a pro se
application to remove counsel. On December 6, 2013, this Court ordered
____________________________________________
2
The trial court’s 1925(a) opinion relied on its opinion and order denying the
post-sentence motions. Opinion in Response to Matters Complained of on
Appeal, 11/15/2013.
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the trial court to conduct a Grazier3 hearing to determine whether
Appellant’s pro se application to remove counsel was knowing, intelligent,
and voluntary. On December 31, 2013, the trial court conducted the hearing
and granted Appellant’s application to remove counsel and proceed pro se.
On February 5, 2014, the trial court issued an order requiring
Appellant to file a 1925(b) statement within 21 days. On February 21, 2014,
Appellant filed a pro se 1925(b) statement. On March 4, 2014, the trial
court issued its 1925(a) opinion.
On March 4, 2014, Appellant filed with this Court a motion for
appointment of appellate counsel. On March 18, 2014, this Court instructed
the trial court to appoint appellate counsel. On March 21, 2014, the trial
court appointed appellate counsel. Although ordered to file a brief on behalf
of Appellant on March 27, 2014, May 12, 2014, June 13, 2014, and August
1, 2014, prior counsel failed to file a brief. On August 15, 2014, nine days
late, prior counsel filed a petition to withdraw. The petition failed to comply
with the dictates of Anders and Santiago.4 On August 28, 2014, this Court
remanded the case to the trial court for the removal of counsel and
appointment of new counsel. On September 4, 2014, the trial court
appointed present appellate counsel. Counsel filed two requests for
____________________________________________
3
Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998).
4
Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009).
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additional time to file a brief, which this Court granted. On December 8,
2014, counsel filed an Anders brief and a petition for leave to withdraw as
counsel.
Because new appellate counsel filed a petition to withdraw pursuant to
Anders and its Pennsylvania counterpart, Santiago, we must address
counsel’s petition before reviewing the merits of Appellant’s underlying
issues. 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 the
Pennsylvania 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 must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
appellant of his or her 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). Substantial compliance with these requirements is
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sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super.2007). “After establishing that the antecedent requirements have
been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).
Appellant’s counsel filed a petition for leave to withdraw as counsel.
The petition states counsel conscientiously examined the record in this
matter and determined that any appeal would be frivolous. Petition for
Leave to Withdraw as Counsel, at ¶ 2; Letter to Appellant. Counsel notified
Appellant of the withdrawal request, supplied him with copies of the petition
for leave to withdraw and the Anders brief, and sent Appellant a letter
explaining his right to proceed pro se or with new, privately-retained counsel
to raise any additional points or arguments that Appellant believed had
merit. See Petition for Leave to Withdraw as Counsel at ¶ 4-5; Letter to
Appellant. In the Anders brief, counsel provides a summary of the facts
and procedural history of the case with citations to the record, refers to
evidence of record that might arguably support the issues raised on appeal,
provides citations to relevant case law, states his conclusion that the appeal
is wholly frivolous, and states his reasons for concluding the appeal is
frivolous. Accordingly, counsel has substantially complied with the
requirements of Anders and Santiago.
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Appellant has not filed a pro se brief or a counseled brief with new,
privately-retained counsel. We, therefore, review this appeal based on the
issues of arguable merit raised in the Anders brief.
Counsel raises the following issue of arguable merit:
1. The [t]rial [c]ourt erred in concluding that the [s]imple
[a]ssault conviction did not merge with the [r]obbery
conviction for sentencing purposes.
Anders Brief at 17. Counsel’s Anders brief also discusses the following
four issues, which Appellant raised in his pro se 1925(b) statement:
1. The [t]rial [c]ourt erred in allowing evidence that was
insufficient to establish probable cause to arrest the
defendant.
2. The [t]rial [c]ourt erred in establishing that there was a
prima-facie [sic] showing at the preliminary hearing
August 8th, 2012.
3. The [t]rial [c]ourt erred in acting diligently to arrest
[Appellant] on the day probable cause was to be allegedly
established, i.e. 10 (ten) months elapsed before the initial
filing of the charges, after probable cause to arrest had
been previously established.
4. The [t]rial [c]ourt erred in allowing the victim’s
subsequent statement to over-ride [sic] the actual
statement to investigating officers to establish probable
cause, to make [Appellant] in this case thereafter.
Appellant’s Brief at 9-10.
This Court addressed Appellant’s first issue, i.e., whether the simple
assault conviction merged with the robbery conviction for sentencing
purposes, in our opinion affirming the judgment of sentence for Appellant’s
co-defendant, Jenkins. See Commonwealth v. Jenkins, 96 A.3d 1055
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(Pa.Super.2014). This Court concluded the issue was meritless. We
reasoned:
Based upon the foregoing discussion, we conclude that
Jenkins’ crimes were the result of multiple criminal acts.
The information filed by the Commonwealth enumerates
that the element of simple assault, see 18 Pa.C.S.
2701(a)(1), was fulfilled when the Defendants punched
Caracillo, and knocked him to the ground. No other
assaultive conduct is listed at the simple assault charge.
The charge of robbery against Jenkins also contains a
description of this initial assault. As indicated above,
robbery includes as a necessary element that a defendant
inflict bodily injury, or put the victim in fear of such
immediate bodily injury, while committing a theft. See 18
Pa.C.S. § 3701(a)(1)(iv). Had the Commonwealth listed
only the assaultive conduct that formed the basis of the
simple assault charge against Jenkins at the robbery
charge, we would conclude that Jenkins did not commit
“multiple criminal acts beyond that which is necessary to
establish the bare elements of the additional crime.”
[Commonwealth v. Weakland, 555 A.2d 1228, 1233
(Pa.1989)]. Were it the case that Jenkins had been
convicted of both simple assault and robbery upon the
basis of a single criminal act, we would likely order
Jenkins’ resentencing because simple assault appears to be
a lesser included offense of robbery. Specifically, simple
assault does not require proof of any statutory element
that robbery does not also require.
However, the Commonwealth’s description of the conduct
forming the basis of the robbery charge against Jenkins
also included the Defendants’ conduct in restraining
Caracillo on the ground. Caracillo’s testimony indicates
that the Defendants restrained him by holding a foot to his
head in a manner that exacerbated his existent facial
injuries. N.T. at 100. This additional physical restraint
caused Caracillo substantial pain. Id. These events would
establish the “bodily injury” element of robbery, even in
the absence of the facts that established Jenkins’
conviction for simple assault. By including the restraint of
Caracillo in its description of robbery, the Commonwealth
established that Jenkins committed multiple criminal acts
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beyond the “bare” standard articulated by Weakland and
[Commonwealth v. Anderson, 650 A.2d 20 (Pa.1994)].
This situation is generally analogous to this Court’s holding
in Commonwealth v. Ousley, 21 A.3d 1238
(Pa.Super.2011), wherein we determined that a
defendant’s convictions for aggravated assault and robbery
did not merge:
[T]he evidence does not support [the appellant’s]
contention that there was a single act that formed
the basis for these charges, that is, a single blow to
the head. The record reflects that the victim was
struck in the head with a firearm being carried by
[the appellant] that resulted in a bleeding head
wound. This was clearly an attempt to cause serious
bodily injury. In addition, the evidence reflects that
[the appellant], while brandishing the firearm and
after striking her on the head, forced her into an
office, demanded to know where the company safe
was and threatened to shoot her if she did not tell
him the truth. This was not a single act that formed
the basis for both charges.
21 A.3d at 1243. In Ousley, the defendant’s additional
conduct which formed the independent basis of the
robbery charge was much more emphatic then Jenkins’
conduct here. Unlike in Ousley, Jenkins did not have a
weapon and did not specifically threaten Caracillo with
further physical harm. However, Jenkins actually inflicted
further pain upon Caracillo by grinding his face into the
concrete. N.T. at 100. Furthermore, we remain cognizant
of the settled precedent that Jenkins is not entitled to a
“volume discount” for his crimes “simply because he
managed to accomplish all the acts within a relatively short
period of time.” Commonwealth v. Pettersen, 49 A.3d
903, 912 (Pa.Super.2012) (citing Anderson, 650 A.2d at
22). Parsing Jenkins’ actions, as charged by the
Commonwealth, there are additional actions that establish
the “bodily injury” element of robbery without reference to
the conduct establishing his conviction for simple assault.
Although this case presents a close question, we are
constrained to conclude that Jenkins’ actions constituted
“multiple criminal acts,” and that Jenkins’ convictions for
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simple assault and robbery were not predicated upon a
single criminal act.
Jenkins, 96 A.3d at 1062-63 (internal footnotes and emphasis deleted).
A jury convicted Appellant of robbery and simple assault based on the
same facts as it convicted his co-defendant, Jenkins. Accordingly, as this
Court found robbery and simple assault did not merge for his co-defendant,
we also find the crimes do not merge for Appellant.
Appellant raised four issues in his pro se 1925(b) statement: (1)
insufficient probable cause to arrest Appellant; (2) failure to establish a
prima facie case at the preliminary hearing; (3) failure to act diligently in
arresting Appellant, as 10 months lapsed between the filing of charges and
the arrest of Appellant; and (4) the trial court erred in crediting victim’s
subsequent statement to police, rather than “the actual statement to
investigating officers to establish probable cause.” Appellant’s Brief at 9-10.
Appellant failed to raise these issues in pre-trial motions, at trial, or in
post-sentence motions. Accordingly, he has waived the issues. Pa.R.A.P.
302(a).
Our independent review of the record has revealed no non-frivolous
claims that Appellant could have raised, and we agree with counsel that this
appeal is wholly frivolous. Accordingly, we affirm the judgment of sentence
and grant counsel’s petition for leave to withdraw.
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Judgment of sentence affirmed and petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2015
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