J-S56004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMIE ALAN BAKER,
Appellant No. 56 MDA 2016
Appeal from the Judgment of Sentence Entered February 17, 2015
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000538-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 21, 2016
Appellant, Jeremie Alan Baker, appeals nunc pro tunc from the
judgment of sentence of an aggregate term of 11 to 22 years’ imprisonment,
imposed after he was convicted of one count each of burglary (18 Pa.C.S. §
3502(a)(1)), robbery (18 Pa.C.S. § 3701(a)(1)(ii)), and criminal conspiracy
to commit robbery (18 Pa.C.S. § 903(1)(1)). Counsel seeks permission to
withdraw from further representation pursuant to Anders v. California, 386
A.2d 738 (Pa. 1967). Upon review, we find that counsel’s Anders brief
substantially satisfies the requirements set forth in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We also agree with counsel that the
issues Appellant seeks to raise on appeal – challenges to the sufficiency of
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*
Former Justice specially assigned to the Superior Court.
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the evidence – are frivolous, and there are no other non-frivolous issues he
could raise herein. Accordingly, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
Appellant’s convictions stem from an incident that occurred during the
early morning hours of May 21, 2014, at the home of the victims, Sanjiv and
Rashmi Mohla. Mr. and Mrs. Mohla own three gas stations and two small
motels. They reside next door to one of their motels, the Fairfield Lodge,
located in Fairfield, Pennsylvania. N.T. Trial, 12/9/14, at 59-60. Mr. and
Mrs. Mohla routinely brought cash home at the end of each business day and
kept the cash in a money bag in either their kitchen or bedroom overnight.
Mrs. Mohla would then deposit the funds at the bank the next day. Id. at
65-67.
Appellant’s father, Phillip Baker, was a master electrician and did some
work for Mr. and Mrs. Mohla at their places of business beginning in July or
August of 2013. Later that year, Phillip Baker introduced Appellant to the
Mohla’s. Appellant and his brother, Jeffrey Baker, began doing yard work
and other odd jobs around the Fairfield Lodge in December 2013. Id. at 60-
64. Mr. Mohla testified that there were several occasions between April 14,
2014 and May 20, 2014, where a portion of the cash from their business
went missing from their home. Id. at 72-75. At first, the Mohla’s thought
perhaps they had miscounted the funds, but then later began to suspect that
Appellant and/or his brother were responsible. Id. at 113, 128.
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On the night of the incident, Mr. and Mrs. Mohla were sleeping in their
bedroom and were awoken around 1:00 a.m. by two men with flashlights.
Id. at 76. Mr. Mohla attempted to get up, but was struck on the head with a
flashlight by one of the men, causing him to bleed profusely and fall to his
knees on the floor. The intruder then threatened to shoot him and held a
gun to his forehead. Id. at 77. The other intruder went straight to the
drawer where Mr. and Mrs. Mohla usually kept their money bag, and after
discovering that the bag was empty, asked: “Where’s the money?” Id. at
79-80. Mr. Mohla stated that both men became agitated and that the man
holding the gun then demanded “the big money” or else he would shoot him.
Id. at 80-82. The man with the gun then forced Mr. Mohla to his feet and
prodded him with a gun to his back until Mr. Mohla finally led him to the
money bag in another bedroom. The intruder instructed Mr. Mohla to get on
the floor and not to look up at him or else he would shoot him. He then
turned on the light, counted the money, and shouted to the other man, “We
got the money. Let’s go.” Id. at 83-84. While Mr. Mohla was being held at
gun point and led throughout the house by one intruder, the other intruder
stayed with Mrs. Mohla and instructed her to “lie down or you’ll get hurt.”
Id. at 122. Mrs. Mohla testified that she recognized this man as Appellant.
Id. at 120.
Following a jury trial, Appellant was sentenced to the above-stated
term on February 17, 2015. The trial court summarized the subsequent
procedural history of this case in its Pa.R.A.P. Rule 1925(a) opinion:
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No direct appeal was filed. However, on April 9, 2015, Appellant
filed pro se correspondence challenging trial counsel’s
performance. This [c]ourt treated the correspondence as a Post
Conviction Relief Petition[1] and appointed P.C.R.A. counsel to
represent Appellant. Appointed counsel was further granted
opportunity to file an Amended P.C.R.A. Petition in compliance
with statutory authority. Thereafter, [an] Amended P.C.R.A.
Petition was timely filed which included a claim that trial counsel
abandoned Appellant on direct appeal. After [a] pre-hearing
conference, this [c]ourt conducted [a] hearing on October 19,
2015. By Order dated December 17, 2015, Appellant’s P.C.R.A.
Petition was granted to the extent trial counsel was ineffective in
failing to timely perfect an appeal. Accordingly, Appellant’s
post[-]sentence rights were reinstated. This direct appeal
follows. See Commonwealth v. Huddleston, 55 A.3d 1217
(Pa. Super. 2012).
Trial Court Opinion (TCO), 3/11/16, at 1 n.1.
Appellant now presents the following claims, via counsel’s Anders
brief, as follows:
I. Was the evidence insufficient to find [Appellant] guilty of
conspiracy when the element of planning of the crime of
conspiracy was not established at trial, in that no other
person was charged?
II. Was the evidence insufficient to find [Appellant] guilty of
robbery when there was no testimony that [he] had a
weapon, nor was there testimony that [Appellant] made
any threats of force?
Anders Brief at 7.
“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
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1
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
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2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.
Super. 1997)).
Court-appointed counsel who seek to withdraw from
representing an appellant on direct appeal on the basis that the
appeal is frivolous 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) file a brief referring to anything that arguably might
support the appeal but which does not resemble a “no
merit” letter or amicus curiae brief; and (3) furnish a copy
of the brief to the [appellant] and advise the [appellant] of
his or her right to retain new counsel or raise any
additional points that he or she deems worthy of the
court’s attention.
Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
(citation omitted).
Rojas, 874 A.2d at 639. Appellant’s counsel has complied with these
requirements. Counsel petitioned for leave to withdraw, and filed a brief
satisfying the requirements of Anders, as discussed, supra. Counsel also
provided a copy of the brief to Appellant, and submitted proof that he
advised Appellant of his right to retain new counsel, proceed pro se, and/or
to raise new points not addressed in the Anders brief.
Our Supreme Court has held, in addition, that counsel must explain
the reasons underlying his assessment of Appellant’s case and his conclusion
that the claims are frivolous. Thus, counsel’s Anders brief must satisfy the
following criteria before we may consider the merits of the underlying
appeal:
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[I]n 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.
Upon review of the Anders brief submitted by Appellant’s counsel, we
find that it contains a summary of the procedural history and facts of this
case, identifies the issues that Appellant wishes to raise, and references
facts and case law arguably supporting those claims. We acknowledge that
counsel’s Anders brief lacks a conclusion that Appellant’s claims are
frivolous and reasons to support this conclusion. However, counsel did state
in his petition to withdraw that, after a conscientious examination of the
record, he determined the issues to be frivolous.
Here, we will overlook counsel’s failure to include a statement of
frivolity in his Anders brief, because that omission does not impede our
ability, in this case, to review Appellant’s sufficiency claims in accordance
with our standard of review.2 Based on the foregoing, we find that
Appellant’s counsel has substantially complied with the Anders’
requirements. Substantial compliance has been deemed sufficient for
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2
Counsel should be careful to fully comply with all of the Anders
requirements in future cases.
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withdrawal on direct appeal. Commonwealth v. Wrecks, 934 A.2d 1287,
1290 (Pa. Super. 2007). Thus, we now examine whether Appellant’s claims
are, indeed, frivolous.
To begin, we note our standard of review:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted).
First, we review Appellant’s challenges to the sufficiency of the
evidence to support his conviction of robbery. To sustain a conviction for
robbery under 18 Pa.C.S. § 3701(a)(1)(ii), the Commonwealth is required to
prove “that in the course of committing a theft, [the] [a]ppellant threatened
another with or intentionally put her in fear of immediate serious bodily
injury.” Commonwealth v. Valentine, 101 A.3d 801, 806-807 (Pa. Super.
2014) (internal quotation marks and citations omitted). Appellant alleges
that the evidence was insufficient to support his conviction of robbery
because he did not have any weapon and did not make any threats.
Appellant’s Brief at 15. However, under Pennsylvania law, “[t]he evidence is
sufficient to convict a defendant of robbery under this section if the evidence
demonstrates aggressive actions that threatened the victim’s safety. The
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court must focus on the nature of the threat posed by an assailant and
whether he reasonably placed a victim in fear of immediate serious bodily
injury.” Id. at 807 (internal citations omitted). Thus, this claim is frivolous.
Appellant contends that he lacked the criminal intent to cause serious
bodily harm and that he did not assist with the robbery, but rather attended
to the wife and kept her from getting hurt. Appellant’s Brief at 15. After
careful review, we discern Appellant’s contentions to be wholly frivolous. As
the trial court summarized in its opinion:
[T]wo intruders entered the home of the victims in the middle of
the night. One victim was struck in the head by a heavy
flashlight and led away by gunpoint. The other was forced to the
ground with the instruction to lie there or she would be hurt.
This instruction followed her observation of the other intruder
putting a gun in her husband’s face after knocking him to the
floor with a flashlight blow to his head and thereafter threatening
to shoot him. Although it is reasonable to conclude from the
trial evidence that the intruder other than Appellant was the
more violent of the two and possessed the firearm, this
distinction is immaterial. Pennsylvania law is clear that evidence
of Appellant’s assistance to the other intruder throughout the
course of the robbery is sufficient to support a finding of shared
intent to facilitate the other’s actions. Commonwealth v.
Everett, 443 A.2d 1142, 1145 (Pa. 1982). Thus, even assuming
Appellant did not carry a weapon, employ threats, or cause
physical injury, his assistance to the other intruder is sufficient
to support the elements necessary for conviction. Id.
TCO at 4.
Next, Appellant argues that the evidence was insufficient to sustain his
conviction of conspiracy to commit robbery. He asserts that a conspiracy
requires at least two members and suggests that he was the only person
charged in this matter with conspiracy. Appellant’s Brief at 12. Appellant
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also argues that the Commonwealth failed to prove that he entered into an
agreement to commit a crime. Id. Based on the following, Appellant’s
claims are frivolous.
It is well-established that “[t]o sustain a conviction for criminal
conspiracy, the Commonwealth must establish the defendant: (1) entered
into an agreement to commit or aid in an unlawful act with another person
or persons; (2) with a shared criminal intent; and (3) an overt act was done
in furtherance of the conspiracy.” Commonwealth v. Devine, 26 A.3d
1139, 1147 (Pa. Super. 2011). “This overt act need not be committed by
the defendant; it need only be committed by a co-conspirator.”
Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)
(citations omitted).
As the trial court stated in its well-thought-out opinion, the evidence at
trial overwhelmingly satisfied the above elements. TCO at 2. Both victims
testified,
that they were awakended at gunpoint in the middle of the night
by two individuals who were shining flashlights in their eyes.
The male victim was struck in the head with a large metal
flashlight and [was] removed from the bedroom at gunpoint
while being directed to take one of the intruders to the location
… where the money was secured. The second intruder remained
upstairs with the female victim instructing her to lie on the floor
and remain there or “she would get hurt.” Both victims
described a scenario wherein the two intruders were acting in
concert with each other. After locating the money, both
intruders fled ….
Id. (internal footnote omitted) (emphasis added).
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“Proof of conspiracy is almost always extracted from circumstantial
evidence.” Hennigan, 753 A.2d at 253. Even if an explicit agreement to
commit a crime cannot be proven, “[t]he conduct of the parties and the
circumstances surrounding such conduct may create a web of evidence
linking the accused to the alleged conspiracy beyond a reasonable doubt.”
Devine, 26 A.3d at 1147. Moreover, “[e]ven if the conspirator did not act
as a principal in committing the underlying crime, he is still criminally liable
for the actions of his co-conspirators in furtherance of the conspiracy.”
Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012). Finally,
“this Court has repeatedly held that flight, along with other circumstantial
evidence, supports the inference of a criminal conspiracy.” Commonwealth
v. Marquez, 980 A.2d 145, 150 (Pa. Super. 2000). Flight from the scene of
the crime, when viewed in the totality of the circumstances, can be evidence
of consciousness of guilt and a desire to escape prosecution. Id.
We conclude that the totality of the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to sustain Appellant’s
convictions for robbery and conspiracy to commit robbery, and that
Appellant’s sufficiency claims are frivolous. Finally, our review of the record
reveals no other potential, non-frivolous issues which Appellant could raise
on appeal. Accordingly, we grant counsel’s motion to withdraw.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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