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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THOMAS HARRY WISE, :
:
Appellant : No. 1718 MDA 2019
Appeal from the Judgment of Sentence Entered September 13, 2019
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004617-2018
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 01, 2020
Thomas Harry Wise (“Wise”) appeals from the judgment of sentence
entered following his convictions of three counts of criminal solicitation, two
counts of criminal attempt, and one count each of tampering with/fabricating
physical evidence and criminal use of a communication facility.1 Counsel has
filed an Application to Withdraw from representation and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s Application to
Withdraw and affirm Wise’s judgment of sentence.
The suppression court set forth the facts relevant to the instant appeal
as follows:
On July 19, 2018, at approximately 1:00 p.m., Detective
Heather Halstead [(“Detective Halstead”),] of the Lancaster City
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1 See 18 Pa.C.S.A. §§ 902(a), 901(a), 4910(1), 7512(a).
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Bureau of Police[,] was advised that a video of two subjects was
being broad[cast] live on Facebook. When [Detective] Halstead
began to view the video in realtime, the identified Facebook social
media account broadcasting the video was a user identified as,
quote, MR17540.
Subsequent investigation determined that this Facebook
account belonged to an individual by the name of Justin Perry
[(“Perry”)]. It is found that the video showed [] Perry engaging
in a conversation with … Wise. Additionally, the [suppression
court] finds that the video showed [] Perry and [Wise] engaging
in a conversation over [Wise’s] solicitation of a purported 15-year-
old girl for sexual acts. [] Perry stated that he was posing as a
15-year-old-girl, and that [Wise] admitted that he was there
intending to meet an individual whom he believed was a 15-year-
old girl. The initial encounter occurred at 150 North Queen Street
in Lancaster City, Lancaster County, Pennsylvania, specifically, in
and around the area known as Binns Park. The encounter then
continued through various locations through the City of Lancaster.
The entire video of this incident was admitted into evidence as
Commonwealth Exhibit 1[,] and has been reviewed by [the
suppression court].
Detective Jessica Davis [(“Detective Davis”),] of the
Lancaster City Bureau of [P]olice subsequently conducted an
interview of [] Perry on July 20, 2018. During such interview, []
Perry explained that prior to his face-to-face interaction with
[Wise], he previous[ly] posed as a juvenile female, and that he
was self-employed, quote, at catching predators, unquote. []
Perry explained that his process was using the Skout dating
application and posting a picture of a female friend, who is an
adult but appears to be younger in age. [] Perry explained that
the Skout site monitors users to make sure that they are adults.
[] Perry stated that for this reason, and not to trap an innocent
m[a]n, he lists his age as 18. He advised that he uses the profile
name Nicole Lana, and has been using the same profile for
approximately two months. [] Perry stated that he waits for
someone to message him on the Skout application and then tells
them [that] he’s not 18, but if they wish to continue to keep
talking to him, they can switch to the Kik … messaging application.
[] Perry stated that once they are on the Kik application, he tells
the individual that he’s 15. [] Perry stated that he has utilized
this method with [Wise].
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[] Perry advised that on the morning prior to the face-to-
face meeting, his girlfriend, Tatiana Hoffert [(“Hoffert”)], called
[Wise] as a decoy and purported to be Nicole Lana. [] Hoffert
then told [Wise that] she was excited to meet him, and they
agreed to me[e]t at Binns Park, which … is located at 150 North
Queen Street in the City of Lancaster.
[] Perry stated that he went to Binns Park to meet [Wise],
[and] that he filmed the interaction live-stream on Facebook. The
video footage of the incident begins with [] Perry walking to the
arranged meeting site and continues until [Wise] admitted his
intentions and the two separated.
The question-and-answer portion of [] Perry’s interview was
admitted into evidence as Commonwealth Exhibit 2, and has been
reviewed by the [suppression] [c]ourt. It is noted that [] Perry
subsequently signed a consent form allowing members of the
Lancaster City Bureau of Police to search his LG Smart Phone ….
[] Perry indicated that he communicated with [Wise] on
th[e] Kik application on [his] cellular telephone. [] Perry
voluntarily relinquished this cellular telephone to Detective
Davis….
[] Perry signed a separate consent form permitting
members of the Lancaster City Bureau of Police to search his
Facebook account, specifically the screen name as previously
mentioned. Again, [] Perry indicated that this was his account,
[and] that he live-streamed the video of the interaction between
himself and [Wise] on July 19, 2018[,] from this account….
… [A] forensic review of this device located a conversation
on the Kik application between [] Perry, who was posing as Nicole
Lana, and [Wise]. Such conversation included, among other
things, graphic sexual language about what [Wise] would like to
do with Nicole Lana, [Wise’s] soliciting a nude imag[e] of Nicole
Lana, [Wise] sending a picture of his penis to Nicole Lana, and
arrangements for [the] two to meet in person. The entire
extraction of the cellular telephone, including a Kik conversation,
was admitted into evidence.
N.T. (Suppression Hearing), 4/26/19, at 3-7.
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Police arrested Wise and charged him with the above-described
offenses. Police additionally charged Wise with one count each of attempted
statutory sexual assault and attempted dissemination of obscene and other
sexual materials to a minor.2 Wise filed a pre-trial Motion to suppress the
electronic evidence obtained by police, which the suppression court denied.
Following a bench trial, the trial court acquitted Wise of one count each of
attempted statutory sexual assault and attempted dissemination of obscene
and other sexual materials to a minor, and convicted Wise of the remaining
charges.
On September 9, 2019, the trial court sentenced Wise to time served to
23 months in jail, followed by five years of consecutive probation. On
September 13, 2019, the trial court resentenced Wise, but did not change his
aggregate sentence. Wise did not file a post-sentence motion, but timely filed
a Notice of Appeal. In lieu of Pa.R.A.P. 1925(b) concise statement, counsel
filed a Statement of Intent to file an Anders brief. Counsel has now filed with
this Court an Application to Withdraw from representation, and brief pursuant
to Anders and Santiago.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
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2 See 18 Pa.C.S.A. §§ 901(a), 3122.1(b), 5903(c)(1).
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Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Here, counsel’s Application to Withdraw states that she has reviewed
the record and concluded that the appeal is frivolous. Additionally, counsel
notified Wise that she is seeking permission to withdraw, furnished Wise with
copies of the Application to Withdraw and Anders brief, and advised Wise of
his right to retain new counsel or proceed pro se to raise any points he believes
worthy of this Court’s attention. Accordingly, counsel has satisfied the
procedural requirements of Anders.
Having concluded that counsel has complied with the procedural
mandates of Anders, we next determine whether counsel’s Anders brief
meets the substantive dictates of Santiago. According to Santiago, in the
Anders brief that accompanies 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
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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.
Here, counsel has set forth the facts and procedural history of the case.
Anders Brief at 7-9. Additionally, counsel refers to a suppression claim that
could arguably support the appeal, and concludes that the issue is wholly
frivolous. See id. at 17. Counsel also provides a detailed analysis regarding
the absence of any violation of the Wiretap Act by the Commonwealth. See
id. at 12-16. Thus, counsel has complied with the minimum requirements of
Anders/Santiago. We next must address whether the appeal is, in fact,
wholly frivolous, and whether there exist any additional meritorious issues
that could have been raised on Wise’s behalf.
Wise claims that, through the actions of Perry, the Commonwealth
collected evidence in violation of the Wiretap Act. Anders Brief at 12. In
particular, Wise claims that Perry acted as though he was a law enforcement
officer, and as such, improperly failed to undergo the appropriate training
required by the Wiretap Act, and failed to retain the required records of his
social media conversations with Wise. See id. However, counsel concedes
that she was unable to find any legal support for this claim. Id. at 13. In
addition, counsel points out that law enforcement had instructed Perry not to
continue such actions. Id. Thus, counsel confirms that the claim has no legal
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support and lacks all merit. Id. Our review confirms the lack of legal authority
supporting this claim.
Counsel also points out a potential claim of a violation of the Wiretap
Act based upon the recording made by Perry with his cell phone. Id. at 13-
14. However, counsel confirms that this Court’s holding in Commonwealth
v. Smith, 136 A.3d 170 (Pa. Super. 2016), would afford Wise no relief. See
Anders Brief at 14.
In Smith, the defendant used an application on a cell phone to
surreptitiously record his supervisor. Smith, 136 A.3d at 172. The defendant
subsequently was charged with a violation of the Wiretap Act. Id. at 172.
The trial court granted the defendant habeas corpus relief, and dismissed the
sole Wiretap Act charge against him. Id. On appeal, this Court reversed,
concluding that “[t]he surreptitious recording of the conversation violated the
provisions of the Act.” Id. at 174.
In this case, however, the suppression court found that “[a]t no time
was any such recording surreptitious in nature; rather, [] Perry consistently
held the cellular telephone in a manner demonstrative that he was capturing
the entire transaction.” N.T. 8/9/19, at 10. Because the recording was not
“surreptitious,” Smith affords Wise no basis for relief.
Finally, our independent review discloses no additional, non-frivolous
issues that could be raised by Wise. We therefore grant counsel’s Application
to Withdraw, and affirm Wise’s judgment of sentence.
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Application to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2020
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