J-S55038-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
WILLIS JORDAN, III, :
:
Appellant : No. 589 WDA 2015
Appeal from the Judgment of Sentence Entered October 14, 2014,
in the Court of Common Pleas of Elk County,
Criminal Division at No(s): CP-24-CR-0000186-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 28, 2015
Willis Jordan, III (Appellant) appeals from the judgment of sentence
entered following his conviction for endangering the welfare of a child
(EWOC). In addition, Appellant’s counsel has filed a petition to withdraw
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
On April 27, 2013, Appellant was arrested and charged with EWOC
after two young children in his care were found wandering along a roadway
in Johnsonburg, Elk County.1 On July 14, 2014, following a jury trial,
Appellant was convicted of the aforementioned offense. On October 14,
1
Appellant is the biological father of the older child, who was approximately
four years of age at the time of the incident. The woman Appellant was
living with at the time was the grandmother of the younger child, who was
approximately one year old at the time of the incident.
* Retired Senior Judge assigned to the Superior Court.
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2014, Appellant was sentenced to a term of not less than 15 nor more than
48 months’ incarceration. Appellant timely filed a notice of appeal. The trial
court directed Appellant to comply with Pa.R.A.P. 1925(b), and Appellant
filed a Pa.R.A.P. 1925(b) statement.2 In this Court, Appellant’s counsel filed
a petition to withdraw his representation of Appellant and an Anders brief.
The following principles guide our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
2
The trial court believes that Appellant’s statement was filed untimely and
urges this Court to find waiver. Trial Court Opinion, 4/28/2014, at 1. We
decline to do so in light of Rule 1925(b)(1), which provides, “Appellant shall
file of record the Statement and concurrently shall serve the judge. Filing of
record and service on the judge shall be in person or by mail as provided
in Pa.R.A.P. 121(a) and shall be complete on mailing if appellant
obtains a United States Postal Service Form 3817, Certificate of
Mailing, or other similar United States Postal Service form from
which the date of deposit can be verified in compliance with the
requirements set forth in Pa.R.A.P. 1112(c).” (emphasis added). The
certified record reveals that counsel obtained the proper postal service form
verifying that his 1925(b) statement was mailed on the 21st day, March 17,
2014, and is, therefore, timely filed under the Rule.
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advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold 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.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.3 Once “counsel has met these
obligations, ‘it then becomes the responsibility of the reviewing court to
make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.’”
Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)
(quoting Santiago, 978 A.2d at 354 n. 5).
3
Appellant has not responded to counsel’s petition to withdraw.
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In his Anders brief, counsel presents one issue that could arguably
support an appeal: “Whether the lower court erred, or otherwise abused its
discretion, in sustaining the verdict of guilty because the Commonwealth
failed to present sufficient evidence at trial to support a jury finding that
Appellant knowingly endangered the welfare of a child.” Anders Brief at A-
10.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations and quotation marks omitted).
The statute under which Appellant was convicted provides, in relevant
part, as follows: “A parent, guardian or other person supervising the welfare
of a child under 18 years of age, or a person that employs or supervises
such a person, commits an offense if he knowingly endangers the welfare of
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the child by violating a duty of care, protection or support.” 18 Pa.C.S.
§ 4304(a)(1). Further, “the term ‘person supervising the welfare of a child’
means a person other than a parent or guardian that provides care,
education, training or control of a child.” 18 Pa.C.S. § 4304(a)(3).
The Pennsylvania courts have established a three-part test that
must be satisfied to prove EWOC:
1) [T]he accused [was] aware of his/her duty to
protect the child;
2) [T]he accused [was] aware that the child [was] in
circumstances that could threaten the child’s
physical or psychological welfare; and
3) [T]he accused has either failed to act or has
taken action so lame or meager that such actions
cannot reasonably be expected to protect the
child’s welfare.
Commonwealth v. Bryant, 57 A.3d 191, 197 (2012) (citations omitted).
The testimony elicited at Appellant’s trial established the following.
Appellant’s housemate left the house at approximately 7:00 a.m. on April
27, 2013, to go work, leaving both children in the care of Appellant. At
approximately 9:00 a.m. that day, Officer Jason Woodin of the Johnsonburg
Borough Police Department was dispatched to the area of the Market Street
gazebo in Johnsonburg for a report of two unaccompanied minors walking on
the side of the busy road.4 Two eyewitnesses, Sara Schreiber and Daniel
4
Officer Woodin testified that the gazebo where the children were located
was approximately two-tenths of a mile from their home. N.T., 7/14/2014,
at 45.
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Rippey, testified that they had come to the aid of the children. 5 It was a
cool morning and neither child had a coat. The younger child was barefoot.
Officer Woodin recognized the older child as Appellant’s daughter. At some
point between 9:00 a.m. and 10:30 a.m., Officer Woodin attempted to
contact Appellant at his home. When that effort proved unsuccessful, Officer
Woodin drove around the block to look for Appellant. Unable to locate
Appellant, Officer Woodin transported the children to the Johnsonburg police
station.
Around 10:30 a.m., Appellant contacted the police station. He
indicated that he had learned about the incident from a police scanner.
Officer Woodin and Elk County Children and Youth Services caseworker
Miranda Ackley went to Appellant’s home to discuss the situation.
Caseworker Ackley testified that Appellant made the following statement.
He said that he was upstairs folding - - looking for clothes for the
kids and sorting socks. And the children were not supposed to go
outside, but they had left the home. He then said that he went
to look for them at a neighbor’s house, his parents’ house and
his aunt and uncle’s house, and while at his aunt and uncle’s
house he had a 10- or 15- minute conversation. Then I don’t
know what he did after that, but he didn’t find the children.
N.T., 7/14/2014, at 38.6
5
Both witnesses testified that the older child was pushing the younger child
in a stroller, and at some point, the stroller tipped over and was lying next
to the roadway. When the witnesses approached, the older child was trying
to pick up the younger child and place her back in the stroller.
6
At trial, Appellant maintained that his adult cousin had come to visit that
morning and that he had asked his cousin to watch the children while he
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Both Officer Woodin and Ms. Ackley testified that Appellant appeared
to be under the influence of a controlled substance during his interview.
They observed that he was sweating profusely, had dilated pupils, and was
talking very quickly. Officer Woodin also described Appellant as agitated and
hostile.7
There is no dispute that the children in question were well under the
age of 18, or that Appellant owed a duty of care toward both children. The
testimony outlined above, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to prove that Appellant
was aware that leaving such young children unsupervised was a threat to
their physical welfare, and that the action taken by Appellant was so meager
that it could not reasonably be expected to protect the children.
Based on the foregoing, we conclude that Appellant’s issue challenging
the sufficiency of the evidence presented at trial is frivolous. Moreover, we
have conducted “a full examination of the proceedings” and conclude that
went upstairs to fold laundry and gather clothes for the children. He
assumed the children would be fine in his cousin’s care as cousin had five
children of his own. He did not know that his cousin had been convicted of
endangering the welfare of those children. Once Appellant realized the
children were missing, he searched the neighborhood. He promptly
contacted police after learning via police scanner that two children were
found walking on a local road. Notably, as evidenced by the testimony of
Officer Woodin and Ms. Ackley, Appellant did not mention delegating
responsibility for the children to his cousin when he was initially questioned.
7
Appellant denied being under the influence of a controlled substance.
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“the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248.8 Thus,
we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
8
In his 1925(b) statement, Appellant raised a weight-of-the-evidence issue.
This claim was not raised before the trial court in a post-sentence motion, by
a written motion before sentencing, or orally prior to sentencing, therefore it
is waived. See Pa.R.Crim.P. 607. Although the issue was not addressed in
counsel’s Anders brief, we conclude after independent review that the issue
is without merit.
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