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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOWARD PORTER, :
:
Appellant. : No. 3978 EDA 2017
Appeal from the Judgment of Sentence, November 14, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0010487-2015.
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 11, 2019
Howard Porter appeals from the judgment of sentence imposed
following a non-jury trial on charges of indecent assault and unlawful contact
with a minor.1 Porter’s counsel filed an application to withdraw as counsel
based upon Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) and
its federal predecessor Anders v. California, 386 U.S. 738 (1967). We
conclude that Porter’s counsel complied with the procedural requirements to
withdraw. Further, after independently reviewing the record, we conclude that
the appeal is wholly frivolous. We, therefore, grant counsel’s application to
withdraw and affirm Porter’s judgment of sentence.
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1 18 Pa.C.S.A. § 3126 and 18 Pa.C.S.A. § 6318.
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This case arose out of a complaint that Porter sexually assaulted a 14
year-old girl in her home in Philadelphia on August 9, 2015. Porter was
arrested and charged with attempted rape (18 Pa.C.S.A. §§ 901 and 3121),
unlawful contact with a minor (18 Pa.C.S.A. § 6318), unlawful restraint (18
Pa.C.S.A. § 2902), false imprisonment (18 Pa.C.S.A. § 2903), and indecent
assault (18 Pa.C.S.A. § 3126).
Following a bench trial, the court found Porter guilty of unlawful contact
with a minor and indecent assault. The trial court did not find Porter guilty of
the remaining charges.
On November 14, 2017, the trial court imposed an aggregate sentence
of incarceration of not less than eleven and one-half (11 ½) months, nor more
than twenty-three (23) months, followed by a consecutive term of six (6)
years of probation. Porter was subject to lifetime registration. Porter did not
file a post-trial motion.2
Porter filed a timely notice of appeal on December 13, 2017. The trial
court neither issued an order requiring a Pa.R.A.P. 1925(b) statement, nor
filed a Pa.R.A.P. 1925(a) opinion. Porter’s counsel filed a petition to withdraw
from this appeal claiming that it is frivolous.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
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2 The document titled “Motion for Reconsideration of Sentence” contained in
the record was actually a motion to reconsider the grant of the
Commonwealth’s motion in limine to admit a prior bad act.
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withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010). To determine whether it is appropriate for counsel to withdraw, we
must first consider whether counsel satisfied certain procedural requirements.
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the
Pennsylvania Supreme Court explained the required contents of an Anders
brief:
[T]he Anders brief that accompanies court-appointed
counsel’s petition to withdraw . . . 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. “While the Supreme Court in Santiago, set
forth the new requirements for an Anders brief, which are quoted above, the
holding did not abrogate the notice requirements set forth in
[Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)] that
remain binding precedent”. Daniels, 999 A.2d at 594. Thus, counsel seeking
to withdraw on direct appeal must satisfy the following obligations to his or
her client:
Counsel also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his 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.
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Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (citation
omitted). Our review reveals that Porter’s counsel substantially complied with
the technical requirements of Anders and Santiago.
“Once counsel has satisfied the above 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.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.
2007) (en banc) (citation omitted); Santiago, 978 A.2d at 355 n.5. “In light
of the constitutional rights at issue, we must give Anders a most generous
reading and review ‘the case’ as presented in the entire record with
consideration first of issues raised by counsel.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc) (citing Anders,
286 U.S. at 744). “[T]his review does not require this Court to act as counsel
or otherwise advocate on behalf of a party. Rather, it requires us only to
conduct a simple review of the record to ascertain if there appear on its face
to be arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Id. 187 A.3d at 272. Thus, we now turn to the substantive
requirement of this analysis.
Porter has raised the following issues on appeal:3
1. Is the competent evidence of record legally sufficient to support
the convictions in this matter?
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3 We have reordered Porter’s issues for ease of disposition.
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2. Was the verdict against the weight of the evidence to such a
degree that it shocks one’s conscience?
3. Was the sentence imposed upon [Porter] by the trial court
manifestly excessive?
See Porter’s Brief at 6.
First, we address Porter’s sufficiency issue. Porter argues that the
Commonwealth failed to present sufficient evidence to establish the elements
of the crimes of indecent assault and unlawful contact with a minor. However,
Porter does not specify which elements the Commonwealth failed to establish.
This Court has held that where an appellant fails to specify “the element or
elements upon which the evidence was insufficient[,]” his sufficiency challenge
is waived. See Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.
Super. 2008). Accordingly, Porter waived this issue. However, even if we
were to consider the merits of this issue, we would conclude that the evidence
was sufficient to prove the offenses of indecent assault and unlawful contact
with a minor.
The evidence in this case was sufficient to establish the offense of
indecent assault. A person is guilty of indecent assault under 18 Pa.C.S.A.
section 3126(a)(1) if he has “indecent contact with the complainant” and does
so without the complainant’s consent.” 18 Pa.C.S.A. § 3126. Indecent contact
includes “[a]ny touching of the sexual or other intimate parts of the person
for the purpose of arousing or gratifying sexual desire, in any person.” 18
Pa.C.S.A. § 3101.
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Here, the complainant testified that Porter kissed her on her neck from
behind without her consent. Although the complainant told Porter to stop and
pushed him away, he pulled on her waist, reached under her clothing, and
grabbed her breast. Again, she pushed Porter away, but he undid her pants
and attempted to reach into her pants. The complainant again pushed Porter
away and tried to leave, but he grabbed and pulled her onto a mattress and
onto his lap. Porter only stopped when his brother approached them. The
DNA evidence corroborated the victim’s testimony that Porter grabbed her
around her waist.
The evidence also was sufficient to prove unlawful contact with a minor.
Under 18 Pa.C.S.A. section 6318(a)(1), a person commits unlawful contact “if
he is intentionally in contact with a minor . . . for the purpose of engaging in
an activity prohibited under any of the [offenses enumerated in Chapter 31
(relating to sexual offenses)] . . . .” 18 Pa.C.S.A. § 6318. Indecent assault
is one of the included offenses. Although the statute is titled ‘unlawful
contact with a minor,’ it is best understood as ‘unlawful communication with
a minor.’” Commonwealth v. Rose, 960 A.2d 49, 152 (Pa. Super. 2009)
(emphasis added). By its plain terms, the statute prohibits communication
with a minor for the purpose of carrying out certain sex acts, including
indecent assault. Id.; 18 Pa.C.S.A. § 3126.
Here, the victim testified that Porter told the victim she had “gotten big”
and was “grown” now. Porter told her to “spin around” and she complied.
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Porter then lured her into the basement by asking her to help him find a tool.
Once they were in the basement, Porter assaulted the victim.
Based upon the foregoing, we conclude that the evidence, as well as all
reasonable inferences drawn therefrom viewed in the light most favorable to
the Commonwealth as the verdict winner, was sufficient to sustain Porter’s
conviction of indecent assault and unlawful contact with a minor.
Next, we address Porter’s weight claim. Initially, we note that a claim
that the verdict is against the weight of the evidence must be raised with the
trial judge in a motion for a new trial by one of the following methods: 1)
orally, on the record, at any time before sentencing, 2) by written motion at
any time before sentencing; or 3) in a post-sentence motion. Pa.R.CrimP.
607. Failure to do so results in waiver. Commonwealth v. Bryant, 57 A.3d
191, 196 (Pa. Super. 2012). Our review of the record reveals that Porter did
not raise his weight claim with the trial court prior to sentencing or in a post-
sentence motion. The trial court was never given the opportunity to provide
Porter with relief. See Commonwealth v. Thompson, 93 A.2d 478, 490-91
(Pa. Super. 2014). Accordingly, Porter waived this issue.
Lastly, we address Porter’s sentencing claim. Porter argues that his
sentence was unreasonably excessive, but does not specify why. When an
issue is not developed, it will be deemed waived. Commonwealth v. A.W.
Robl Transport., 747 A.2d 400, 405 (Pa. Super. 2000). Moreover, this court
has explained:
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To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, 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, Pa.R.Crim.P. [708];
(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. § 9781(b)].
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Here, Porter did not file a post-sentence motion and therefore did not
preserve his sentencing issue for appeal.4 Accordingly, Porter waived this
issue. However, even if we were to consider the merits of this claim, we would
conclude that the trial court did not abuse its discretion in sentencing Porter.
“Sentencing is a matter vested in the sound discretion of the sentencing
court, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion, which in this context, is not shown merely to be an error in
judgment; rather the appellant must establish by reference to the record, that
the sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Commonwealth v. Shull, 148 A.3d 820 (Pa. Super.
2016).
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4 We also note that Porter did not include a concise statement of the reasons
relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). “Where an
appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth
objects, the issue is waived for purposes of review.” Commonwealth v.
Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004). However, where
counsel has filed an Anders brief, this Court has reviewed discretionary
sentencing claims, even absent a separate Pa.R.A.P. 2119(f) statement. See
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).
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At the sentencing hearing, the parties agreed that the standard range
for unlawful contact with a minor is six (6) to fourteen (14) months plus-or-
minus six months. For this offense the trial court imposed a term of
incarceration of not less than eleven and one-half (11 ½) months, nor more
than twenty-three (23) months, followed by a consecutive term of four (4)
years of probation. The maximum term of incarceration for unlawful contact
alone is seven (7) years. The sentence imposed by the trial court for this
offense was well within that range.
Additionally, the trial court ordered two (2) years of probation for the
offense of indecent assault. The maximum sentence for this misdemeanor of
the second degree is two (2) years of imprisonment. Again, the two years of
probation imposed by the trial court was well within this limitation. Moreover,
Porter was paroled immediately.
In rendering this sentence, the trial court considered Porter’s
presentence report, prior criminal record, work history, educational history,
familial responsibilities and support, prior response to rehabilitative attempts,
the testimony from the victim’s mother, Porter’s allocution, and the arguments
of counsel. N.T. Sentencing Hearing, 11/14/17, at 4-23. Our review of the
sentencing transcript shows that the trial court gave thoughtful consideration
to Porter’s sentence given all of the factors in this case. Therefore, we
conclude that the trial court did not abuse its discretion when it imposed
Porter’s sentence.
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For the foregoing reasons, we conclude that the issues raised in
counsel’s Anders brief are wholly frivolous. Furthermore, after an
independent review of the entire record, we conclude that no other issue of
arguable merits exists. Dempster, supra. Therefore, we grant counsel’s
request to withdraw. Moreover, having determined that the issues raised on
appeal are wholly frivolous, we affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
PJE Gantman joins this Memorandum.
PJE Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/19
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Com. v. Porter, H.
Combined Opinion