J-S56012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWRENCE SPADA :
:
Appellant : No. 101 EDA 2019
Appeal from the Judgment of Sentence Entered December 3, 2018
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000358-2015
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 31, 2019
Lawrence Spada appeals from the judgment of sentence entered in the
Lehigh County Court of Common Pleas on December 3, 2018. After two days
of hearings, the trial court found that Spada violated the terms of his
probation. Subsequently, it resentenced Spada to twelve to twenty-four
months of imprisonment. Additionally, Spada’s court-appointed counsel seeks
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant
counsel permission to withdraw.
Spada’s initial incarceration stemmed from his guilty plea to one count
of terroristic threats, see 18 Pa.C.S.A. § 2706. For this offense, Spada was
sentenced to eighteen to thirty-six months’ incarceration to be followed by
twenty-four months of probation. After serving his maximum term of
incarceration, Spada was admitted to the Horsham Clinic in Montgomery
J-S56012-19
County, Pennsylvania, for mental health services. However, shortly after his
admission and while still on probation, Spada assaulted another patient at the
clinic. Faced with new criminal charges from this fracas, Spada pleaded guilty
to the summary offense of harassment, see 18 Pa.C.S.A. § 2709, in exchange
for a “time served” sentence.
After a two-day Gagnon II1 hearing, wherein Spada admitted that he
“lost it. [He] hit [the victim] like five or six times,” N.T., 11/19/18, at 22, the
trial court found that he had violated the terms of his probation, revoked it,
and sentenced him to an additional term of incarceration. In support of its
sentence, the trial court considered, among other things, the “assaultive
behavior” of Spada’s actions, the myriad time he spent in disciplinary
segregation while incarcerated, and the minimal amount of time he had been
successful while on probation. See id., 12/3/18, at 47-48. The trial court
concluded its sentence was warranted because “Spada is an extremely
dangerous individual.” Id., at 49.
After sentencing, Spada filed a timely post-sentence motion, which the
trial court denied. Immediately thereafter, Spada filed a timely notice of
____________________________________________
1 Referencing Gagnon v. Scarpelli, 411 U.S. 778 (1973). “When a …
probationer is detained pending a revocation hearing, due process requires a
determination at a pre-revocation hearing, a Gagnon I hearing, that probable
cause exists to believe that a violation has been committed. Where a finding
of probable cause is made, a second, more comprehensive hearing, a Gagnon
II hearing, is required before a final revocation decision can be made.”
Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000). At the
hearings, Spada conceded that he pleaded guilty to harassment. See N.T.,
11/19/18, at 9.
-2-
J-S56012-19
appeal to this Court. Moreover, both Spada and the trial court have complied
with the dictates of Pa.R.A.P. 1925.
With the appeal now properly before us, we must first turn to counsel’s
petition to withdraw. To withdraw pursuant to Anders, counsel 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) furnish a
copy of the [Anders] brief to the [appellant]; and 3) advise
the [appellant] that he or she has the right to retain private
counsel or raise additional arguments that the [appellant]
deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). In further illuminating the third requirement of
Anders, that counsel inform the appellant of his or her rights in light of
counsel’s withdrawal, this Court has held that counsel must “attach to their
petition to withdraw a copy of the letter sent to their client advising him or
her of their rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.
Super. 2005).
An Anders brief must comply with the following requirements:
(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.
-3-
J-S56012-19
“[I]f counsel’s petition and brief satisfy Anders, we will then undertake
our own review of the appeal to determine if it is wholly frivolous.”
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets
added) (citation omitted).
Counsel filed a petition to withdraw as counsel, certifying that he has
“thoroughly reviewed the record … and the applicable law” and “believes that
[Spada’s] appeal is wholly frivolous.” Petition to Withdraw as Counsel, ¶¶ 7-
8. Further, counsel attached to his petition a copy of his letter to Spada,
advising that he may retain new counsel, proceed pro se, or raise any points
not raised by counsel in the Anders brief. See id., at ¶ 11. Counsel also filed
a brief, which includes a summary of the history and facts of the case,
potential issues Spada could utilize to support his appeal, and counsel’s
assessment as to why those issues are meritless, including citations to
relevant legal authority.
Accordingly, counsel has complied with the requirements of Anders and
Santiago. Spada has not responded to counsel’s petition to withdraw as
counsel. We proceed to review the issues identified in the Anders brief.
Spada raises two issues for our consideration:
1) Was sentencing Spada to total confinement upon revocation of
his probation an error of law because: (1) Spada was not
convicted of another crime as defined by 18 Pa.C.S.A. § 106;
(2) the evidence was insufficient to demonstrate that Spada is
likely to commit another crime if not imprisoned; and (3) the
evidence was insufficient to prove that confinement is
essential?
-4-
J-S56012-19
2) Did the trial court err in crafting his sentence where the
sentence was: (1) manifestly unreasonable; (2) greater than
required to protect the public, (3) not in proportion to the
gravity of the underlying violation; and (4) not in consideration
of Spada’s rehabilitative needs?
See Appellant’s Brief, at 3.
While Spada’s first issue contends that his sentence following probation
revocation was legally erroneous, it appears undisputed that revocation, itself,
was warranted. “The Commonwealth establishes a probation violation
meriting revocation when it shows, by a preponderance of the evidence, that
the probationer’s conduct violated the terms and conditions of his probation,
and that probation has proven an ineffective rehabilitation tool incapable of
deterring probationer from future antisocial conduct.” Commonwealth v.
Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation omitted). “Conviction
of a new crime is a sufficient basis for a court to revoke a sentence of
probation.” Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super.
2008) (citation omitted). At his first revocation hearing, Spada conceded that
he had been convicted of a new crime. See N.T., 11/19/18, at 9. On this basis,
the court revoked Spada’s probation. See id., 12/3/18, at 43.
However, for the court to sentence an individual to “total confinement”
upon revocation of probation, it would need to find that: 1) the defendant was
convicted of another crime; 2) commission of another crime by the defendant
is likely; or 3) total imprisonment is essential “to vindicate the authority of the
court.” 42 Pa.C.S.A. § 9771(c).
-5-
J-S56012-19
Here, the court found not only that Spada had been convicted of another
crime, but also that he was likely to commit another crime or crimes in the
future. See N.T., 12/3/18, at 46-49. Spada contends that a summary offense
does not qualify as a crime. However, summary offenses are considered
crimes so long as they can be punished by a sentence of incarceration. See
Commonwealth v. Matty, 619 A.2d 1383, 1385-86 (Pa. Super. 1993).
Therefore, because of Spada’s admission to his harassment conviction, the
court did not commit an error of law when it sentenced Spada to incarceration.
Furthermore, the court concluded that Spada was likely to commit more
crimes if he remained at liberty. In coming to this conclusion, the court
considered: 1) the nature of Spada’s willful probation violation, occurring
fewer than two months after his release from incarceration; 2) his extensive
history of misconduct while incarcerated; 3) the character of his initial
terroristic threats offense; and 4) his inability to properly address his mental
health and substance issues. See N.T., 12/3/18, at 46-49. This reasoning is
well supported by the record and is clearly reasonable.
Accordingly, as either rationale employed by the court is sufficient, we
find no basis to conclude that the court somehow committed an error of law
or abused its discretion when it sentenced Spada to incarceration in
accordance with 42 Pa.C.S.A. § 9771(c).
Spada’s second issue challenges the discretionary aspects of his
sentence. To dispute the discretionary aspects of his sentence, Spada was
-6-
J-S56012-19
required to “set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence.” Pa.R.A.P. 2119(f).
The concise statement must specify where the sentence falls in
relation to the sentencing guidelines and what particular provision
of the code it violates. Additionally, the statement must specify
what fundamental norm the sentence violates and the manner in
which it violates that norm. If the statement meets these
requirements, we can decide whether a substantial question
exists.
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.2004) (internal
quotations and citations omitted).
Spada’s brief does not contain a 2119(f) statement. Therefore, Spada
has failed to raise a substantial question. Ordinarily, this would result in waiver
of the issue. However, in light of counsel’s petition to withdraw, we address
Spada’s discretionary sentencing arguments. See Commonwealth v. Lilley,
978 A.2d 995, 998 (Pa. Super. 2009) (establishing that, in conjunction with a
Anders brief, a defective 2119(f) statement is not inherently fatal), citing
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(concluding that Anders “requires review of issues otherwise waived on
appeal”).
Spada contends, among other things, that his sentence was
unreasonable. See Appellant’s Brief, at 3. We disagree. “This Court’s scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges.” Cartrette, 88 A.3d at 1034. While imposing sentence
-7-
J-S56012-19
following revocation of probation, a court must disclose a statement of reasons
for the sentence imposed. See id., at 1041. This disclosure need not be a
lengthy discourse, but must adequately reflect the court’s consideration of the
facts of the case and the defendant’s character. See Commonwealth v.
Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010). As always, the court must
follow the general principle underlying sentencing in the Commonwealth: “the
sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” See Cartrette, 83 A.3d at 1040-41 (citation omitted).
Here, the court went into great detail explaining why it crafted the
sentence the way that it did. See N.T., 11/19/18, at 46-49. The trial court
read Spada’s presentence report. See id., at 48. Where the sentencing court
had the benefit of a presentence investigation report (“PSI”), we can assume
the sentencing court “was aware of relevant information regarding the
defendant's character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Furthermore, the court noted that Spada “has now been convicted 36
different times.” N.T., 11/19/18, at 48. The court also observed that the
probation violation involved “assaultive behavior within two months of his
release from a state correctional institution.” Id., at 47. Based upon these
statements, we conclude the court properly considered all the necessary
-8-
J-S56012-19
circumstances. Accordingly, we find there has been no error of law or abuse
of discretion in the fashioning of Spada’s sentence.
Having reviewed the issues raised in counsel’s Anders brief, we agree
with counsel for Spada that the within appeal is wholly frivolous.2 As such, we
affirm the judgment of sentence and grant counsel’s motion to withdraw.
Judgment of sentence affirmed. Petition for leave to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/19
____________________________________________
2We additionally note that our independent review of the record did not reveal
any additional, non-frivolous issues that were overlooked by counsel.
-9-