Com. v. Peck, D.

J-S24042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID WILLIAM PECK, :
:
Appellant : No. 3381 EDA 2014

Appeal from the Judgment of Sentence entered on October 27, 2014
in the Court of Common Pleas of Montgomery County,
Criminal Division, No. CP-46-CR-0005283-2013

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2015

David William Peck (“Peck”) appeals from the judgment of sentence

imposed following his conviction of one count each of recklessly endangering

another person and simple assault, and two counts of harassment.1

Additionally, Timothy Wile, Esquire (“Attorney Wile”), Peck’s counsel, has

filed a Petition to Withdraw as counsel and an accompanying brief pursuant

to Anders v. California, 386 U.S. 738 (1967). We grant Attorney Wile’s

Petition to Withdraw and affirm Peck’s judgment of sentence.

The trial court set forth the relevant factual and procedural history in

its Opinion, which we adopt for purposes of this appeal. See Trial Court

Opinion, 1/27/15, at 1-6.

1
See 18 Pa.C.S.A. §§ 2705, 2701(a)(1), 2709(a)(1), (4).
J-S24042-15

“When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, he/she must do the

following:

(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the appeal,
but which does not resemble a no-merit letter; and (3) furnish a
copy of the brief to the defendant and advise him of his right to
retain new counsel, proceed pro se, or raise any additional points
he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders,

i.e., the contents of an Anders brief, and required that the brief

(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.

-2-
J-S24042-15

Santiago, 978 A.2d at 361. “Once counsel has satisfied the [Anders]

requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228

(citation omitted).

Here, Attorney Wile has complied with each of the requirements of

Anders. Attorney Wile indicates that he conscientiously examined the

record and determined that an appeal would be frivolous. Further, Attorney

Wile’s Anders brief comports with the requirements set forth by the

Supreme Court of Pennsylvania in Santiago. Finally, the record includes a

copy of the letter that Attorney Wile sent to Peck, advising him of his right to

proceed pro se or retain alternate counsel and file additional claims, and

stating Attorney Wile’s intention to seek permission to withdraw.

Accordingly, Attorney Wile has complied with the procedural requirements

for withdrawing from representation, and we will conduct an independent

review to determine whether Peck’s appeal is wholly frivolous.

The Anders brief filed by Attorney Wile identifies the following issues

for our review:

1. [Whether Peck’s] convictions for simple assault, recklessly
endangering another person, and harassment [are] supported
by legally sufficient evidence?

2. [Whether] the Commonwealth disprove[d] [Peck’s] self-
defense claim by proof beyond a reasonable doubt?

Anders Brief at 4.

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J-S24042-15

In his first claim, Peck asserts that his convictions of simple assault,

recklessly endangering another person, and harassment were not supported

by legally sufficient evidence. Anders Brief at 13. Peck contends that the

domestic incident giving rise to his conviction did not occur as the victim,

Melani Michelle Borrilez (“Borrilez”), portrayed it. Id. at 16.

The trial court addressed Peck’s first claim, set forth the relevant law,

and determined that it lacks merit. See Trial Court Opinion, 1/27/15, at 7-

11. Based on our independent review of the evidence of record, we agree

with and adopt the sound reasoning of the trial court, and conclude that this

claim is frivolous. See id.

In his second claim, Peck contends that the Commonwealth failed to

disprove his claim of self-defense by proof beyond a reasonable doubt.

Anders Brief at 24. Peck asserts that Borrilez was the initial aggressor in

the domestic incident, and that she came after him with the white-handled

butcher knife. Id. at 29.

The trial court addressed Peck’s second claim, set forth the relevant

law, and determined that it lacks merit. See Trial Court Opinion, 1/27/15,

at 11-13. Based on our independent review of the evidence of record, we

agree with and adopt the sound reasoning of the trial court, and conclude

that this claim is frivolous. See id.

-4-
J-S24042-15

Based on our independent determination that Peck’s claims lack merit,

we conclude that his appeal is wholly frivolous, and that Wile is entitled to

withdraw as counsel.

Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015

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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUN Y, PENNSYLVANIA (:i:)
CRIMINAL DIVISION .. ,.~,
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COMMONWEALTH OF PENNSYLVANIA Gl:!l!
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o. 5283-2013 ~ ·.: ') jji:~I

vs. §; .~::_,~
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381 EDA 2014 _..,
r,.,:,
DAVID WILLIAM PECK
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OPINION OF THE COURT
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Page, J. 27, 2015
1
Appellant appeals from the judgment of sentence entered in the Montgomery County
anuary

Court of Common pleas, following his bench trial conviction for simple aslault, recklessly

endangering another person, and harassment on March 24, 2014. Appellant[lontends there was

insufficient evidence for a finding of guilt. Because the evidence was legal] sufficient to prove

Appellant committed the charges brought against him and todisprove Appe lant's claim of self-

defense, this Court's conviction of Appellant should be affirmed.

FACTS AND PROCEDURAL HISTORY

On March 24, 2014, having waived his right to a jury trial, Appellat David William

Peck was tried by the undersigned on charges of terroristic threats (18 Pa.CJS.A. § 2706),

recklessly endangering another person ("REAP") (18 Pa.C.S.A. § 2705), siiple assault (18
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Pa.C.S.A. § 270l(a)(l)), and harassment (18 Pa.C.S.A. §§ 2709(a)(1) and Ct)). The parties put
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forth the following evidence: I
Melani Michelle Borrilez, Appellant's on-again-off-again girlfriend,! testified that she
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became pregnant with Appellant's child in May of 2013, a fact of which Appellant was aware.
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Trial Tr. 12:24-13:6. On June 3, 2013, Appellant asked Ms. Borrilez to clet his apartment

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while he was at work. While she was there, the couple started arguing via trJ11 message about her

car being parked in his driveway and about Appellant's wife. Appellant repeatedly asked that
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Ms. Borrilez leave his apartment before he returned home. Ms. Borrilez reffused his request. She
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stated to the court that it was normal during the course of an argument to be told to leave but t.!111
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return shortly thereafter. Trial Tr. 42:23-25. Ms. Borrilez began to pack her things. Appellant
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returned home at approximately 4:00pm, and the argument continued. Ms. ~6rrilez testified that
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during the argument she "went into the bedroom and started finishing packing and I saw two
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porn DVDs that I bought him so I came out and was in the dining room and s~arted cutting those
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up." Trial Tr. 18:9-12.
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Appellant responded to these actions by putting Ms. Borrilez in a choke hold. She could
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not breathe and she could not talk. He then flung her to the floor, where sh9 hit her forehead, and
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"everything went black." Trial Tr. 19: 17. Ms. Borrilez testified that "I was ~cared that if he

didn't let me go he was going to kill me." Trial Tr. 19 :22-23. I
Ms. Borrilez then retreated to the bedroom to continue packing. Shel testified that
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Appellant pursued her and, facing her, wrapped his hands around her neck. [Ifial Tr. 21 :20-25.
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When he let go, she returned to the dining room, where, she claimed, he punched her in the
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stomach, causing her to run to the bathroom to vomit. Trial Tr. 23 :5-23. AJpJllant then seized
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some of Ms. Borrilez's packed items, including her cellular telephone, whi9h he snapped into

I • anyways." Trial
two pieces, claiming, as Ms. Borrilez put it, "I was on his plan so it's his phpne
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Tr. 25:4-5. Returning into the house, Appellant retrieved a white-handled butcher's knife, held it I ,
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close to Ms. Borrilez's stomach, and said, per Ms. Borrilez, "that he was g~ing to kill my
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fucking baby." Trial Tr. 25:7-13. Ms. Borrilez admits to have been "instigating him [sic]" at that

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Ms. Borrilez testified that Appellant was pointing it at her stomach from a distance of 3-4 lfeet, Trial Tr.25: 16-20.
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point, in an attempt to "act strong." Trial Tr. 27:9-10. Appellant then discarded the knife and left
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the premises.
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Ms. Borrilez stated that she did not telephone the police because shelj'was scared. I didn't
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know what he was going to do." Trial Tr. 29:2-3. She went to a hospital to attend to her

injuries,2 which included a bleeding "brush bum" on her forehead and bruise~
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on her legs and

neck. Trial Tr. 29: 15-17. Ms. Borrilez subsequently filed for a Protection frJm Abuse Order

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("PF A") against Appellant.

Police were called to the hospital. Officer Thomas A. Godin, Sr., tbe bommonwealth's

second witness, testified that he responded to the hospital and interviewed M~. Borrilez, who was

"extremely emotional," "crying," and "kind of shaking." Trial Tr. 64:8-9. He stated that her

visible wound included a laceration to the forehead, a mark and redness on Htr knee and hip, and

red petechial hemorrhaging" around her neck. Trial Tr. 64: 14-;-18. The officer testified that while

photos had been taken of Ms. Borillez's injuries, they were, for an undisclosed reason, not

available for trial. Trial Tr. 63:23-64:17.
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From the hospital, Officer Godin proceeded to Appellant's apartment.and took Appellant

into custody. With the consent of Appellant's roommate, Officer Godin searched the apartment
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and retrieved a white-handled knife. The Officer also observed broken "CDt'6 in and around

the trashcan, and half of a broken cellular telephone.

At the stationhouse, Appellant was informed of his Miranda rights and signed a form

waiving them. Commonwealth's Ex. 4. Officer Godin testified that before A~pellant was

2
Ms. Borrilez testified that she drove to a hospital that was closer to where she was rcsiding.lrather than the nearest
hospital to the incident. Trial Tr. 28: 12-20. . .
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On cross-examination, it was made apparent that Ms. Borrilez and Appellant have a colorful history which
includes multiple PF A hearings and romantic reconnections subsequent to the instant event.'
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The witness claimed he observed that there were broken capillaries underneath the skin. Trial Tr. 68: 12-13.
5
The Commonwealth did not produce the knife at trial, supposedly because it was never seized. Closing Arg. Tr.
14: 19-15: I I. .
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The Court acknowledges that CD's are fairly indistinguishable from DVD's in their external appearance.

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transported to a holding facility, Appellant made an unsolicit~d statement iri ~is presence that "he
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and Ms. Borrilez were in a toxic relationship and that he usually chokes herl'!' Trial Tr. 76:20-22.
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The medical records, entered into evidence by the Cotnmonwealth, ~ere contradictory

regarding the injuries Ms. Borrilez's sustained to her neck an~ abdomen. Ser[ Commonwealth's
Ex. I . The "Emergency Provider Record" focused on the abrtlsion on her head and her pregnant
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status - there are checkmarks indicating only that her neck was "non-tender,'!' "painless ROM,"

and "trachea midline," and that her abdomen was "non-tendet," "no organornegaly," and "no

distention." Commonwealth's Ex. I at 3. On the other hand, the "Triage Assessment 2," found )
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on pages two and three of the "ED Summary," state that Ms. Borrilez had braises on her neck
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and was punched in the abdomen, as well as having an abrasion to her forehead and left knee.

Commonwealth's Ex. 1 at 8-9.
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The Commonwealth also introduced into evidence a pprtion of the Incident of Abuse
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form which Ms. Borrilez submitted when applying for a PFA}, Commonweal.~h's Ex. 2, and the
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statement she gave to the police on the day of the incident, Commonwealth'slEx. 3. Appellant
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pleaded guilty to robbery in 2002, and a certified copy of the disposition order was entered as the
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Commonwealth's final exhibit. Commonwealth's Ex. 5.

Appellant's testimony regarding the events was, not surprisingly, different, Appellant
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testified that when he returned home, he sat on his couch and continued to ask Ms. Borrilez to

leave, and that she slapped him across the face two or three tiriies. Trial Tr. 97:13-1, 98:3-5.
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Appellant laughed, enraging Ms. Borrilez, who began to cut tJe DVD's. Applllant then grabbed

a DVD himself, ripped it, and threw it in the trash. Ms. Borrilez hit Appellant' on the chest and
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continued packing. Trial Tr. 99:3-4. Appellant took her bag obtside and snapped her cellular
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telephone in half. Appellant testified that Ms. Borrilez had smashed the screen the week prior,
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and that the telephone was on his payment plan. Trial Tr. 99:6-11. 11

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Ms. Borrilez returned inside, at which point Appellant began yellin~ ~t her to leave.
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Appellant testified that Ms. Borrilez then "grabbed the knife7! and came at n1.t"8 Trial Tr. 99: 17-
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18. Appellant said that he let her approach and cut him, because "I'm not scared of her." Trial Tr.
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114: 19-20; see also Trial Tr. 109: 18-23 (Appellant agreeing ithat he was no~I afraid of Ms.
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Borrilez because he "thought she was being ridiculous."). Apbellant testifie~I that he received a
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superficial cut on his arm, which was photographed after the event." Trial TtJ 99:20-22.
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Appellant then grabbed her by the wrist, causing the knife to drop, ail~ "flipped her
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around and put her in like the restraint position'" and tried to escort her out
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9f the house." Trial
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Tr. 99:22-24. Appellant testified that he was able to restrain Ber "because I'~ a lot bigger than
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her." Trial Tr. 108:7-8. Ms. Borrilez continued "swinging" atl Appellant until she "wiggled out."
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Trial Tr. 99:24-100:3. Appellant picked up the knife. Ms. Borrilez said "Do~'t kill my baby.
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Don't kill my baby," to which Appellant responded "Are you !kidding me? I ~on't want to kill
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you. I don't want to kill the baby." Trial Tr. 100:4-8. Appellaht threw the kJ~fe on the couch.
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Appellant testified that he was laughing throughout this episode. Trial Tr. l 09: 15-17. Appellant ( '; i

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also denied having punched Ms. Borrilez in the stomach TriallTr. 101:21-22\.IThey both walked
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out of the house, but Ms. Borrilez returned inside. Eventually.lwith Appellant! watching from his I ; i

wife's nearby driveway, Ms. Borrilez left the premises. Appellant did not enUr any exhibits into
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evidence. ll Ii

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Appellant testified that it was a twelve-inch bread knife. Trial Tr. I 07: 1 16, I 09:2. ! I
Appellant testified that Ms. Borrilez retrieved the knife and walked over tp Appellant befot~ cutting him, covering
a distance of seventeen feet. Trial Tr. 110:8-11. i iI
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The alleged photographs were presumably part of the same set of photographs that were no'tiproduced by the
Commonwealth for trial. l i :
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Appellant testified that this included an arm around her neck. Trial Tr. I 17-20. l qs: i
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At the conclusion of the bench trial, Appellant was ~ound guilty byj~he undersigned of the
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following offenses: REAP (18 Pa.C.S.A. § 2705), Simple Assault (18 Pa.o.is.A. § 2701(a)(l)),
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and two counts of Harassment (18 Pa.C.S.A. §§ 2709(a)(l),\4)). He was foHnd not guilty of
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Terroristic Threats (18 Pa.C.S.A. § 2706). Accordingly, on October 27, 20)~, Appellant was
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sentenced to nine to twenty-three months imprisonment, along with two ye~rs of consecutive
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probation and one year of concurrent probation. Appellant filed no post-sentence motions, but
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filed notice of the instant appeal on November 26, 2014.
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ISSUES ! '.
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In his Concise Statement of Errors Complained of on Appeal, ~ppellant asserts the
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following: Ii
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Appellant Peck's convictions for the offences of Simple Assault, Recklessly
Endangering Another Person (REAP), and (2) counts of Harassment are not
supported by legally sufficient evidence in that: : :i
a. The altercation that occurred between Appellant' i and Melani
Borrilez on 3 June 2013 arose out iof a domestic! dispute and
involved mutual combat between Appellant and Ms. ~orrilez;
b. Appellant Peck asserts that the evidence established that Ms.
Borrilez was the initial aggressor in that altercation, nqt
Appellant; ; :\
c. Appellant Peck properly raised the !issue of self-defence as a
justification for his actions with respect to Mr. Borrilez;
d. The Commonwealth failed to disprove by evidence beyond a
reasonable doubt Appellant Peck's clai?1 of self-deferi9e;
e. The Commonwealth failed to produce sufficient l evidence of
App~llant' s mens rea to satisfy the intent element ofi ~he offences
of Simple Assault, REAP, and Harassment. '1
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This Court has condensed the above issues to (1) Was the finding that App~l~anthad the requisite
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mental intent for each offense supported by legally sufficient evidence? an~ (2} Was the finding
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that Appellant did not act in self-defense supported by legally sufficient evi~~nce?11
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STANDARD OF REVIEW ii
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Evidentiary sufficiency presents a question of law. Therefore, the ap~ellate court's
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standard ofreview is de novo, and its scope ofreview is plenary. Commonw~alth v. Meals, 912
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A.2d 213, 218 (Pa. 2006). The appellate court must determinJ whether "the ~vidence admitted at
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trial, and all reasonable inferences drawn from that evidence, when viewed ip the light most
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favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to 'l

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conclude that the Commonwealth established all of the elements of the offense beyond a

reasonable doubt." Commonwealth v. Fears, 836 A.2d 52, 58+59 (Pa. 2003)]. \The
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Commonwealth may prove all elements beyond a reasonable doubt through fhe use of wholly
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circumstantial evidence. Id. The evidence is sufficient "unlessl the proof relied upon for a
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conviction is so weak and inconclusive that as a matter of lawlno probability'of fact can be
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drawn from the combined circumstances." Commonwealth v. ~awles, 462 AJd 619, 622 (Pa.
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1983). An arrest of judgment based on insufficiency of the evidence will inv91