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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EUGENE REAGAN, :
:
Appellant : No. 647 EDA 2017
Appeal from the Judgment of Sentence October 4, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0005918-2015
BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017
Eugene Reagan (“Reagan”) appeals from the judgment of sentence
imposed following his conviction of two counts of recklessly endangering
another person, and one count each of attempted murder, aggravated
assault, and firearms not to be carried without a license.1 Additionally,
Reagan’s counsel, James Brose, Esquire (“Attorney Brose”), has filed a
Motion to Withdraw as Appellate Counsel, as well as a brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967) (hereinafter the “Anders
Brief”). We grant Attorney Brose’s Motion to Withdraw, and affirm Reagan’s
judgment of sentence.
In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 4/6/17, at 1-13.
1
See 18 Pa.C.S.A. §§ 2705, 901(a), 2501(a), 2702(a)(1), 6106(a)(1).
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On July 22, 2016, a jury convicted Reagan of the above-referenced
crimes. On October 4, 2016, the trial court sentenced Reagan to an
aggregate prison term of 15 to 30 years. Reagan filed a pro se Motion to
reconsider sentence. The trial court thereafter appointed Attorney Brose as
Reagan’s counsel. On February 7, 2017, the trial court denied Regan’s
Motion to reconsider sentence. Reagan filed a timely Notice of Appeal, and a
court-ordered Concise Statement of matters complained of on appeal.
However, in lieu of filing a brief on Reagan’s behalf, Attorney Brose filed an
Anders brief.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, he must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the appeal,
but which does not resemble a no-merit letter; and (3) furnish a
copy of the brief to the defendant and advise him of his right to
retain new counsel, proceed pro se, or raise any additional points
he deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
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2009), our Supreme Court addressed the second requirement of Anders,
i.e., the contents of an Anders brief, and required that the brief
(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. “Once counsel has satisfied the [Anders]
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.” Edwards, 906 A.2d at 1228
(citation omitted).
Here, Attorney Brose has complied with each of the requirements of
Anders. Attorney Brose indicates that he conscientiously examined the
record and determined that an appeal would be frivolous. Further, Attorney
Brose’s Anders brief comports with the requirements set forth in Santiago.
Finally, the record includes a copy of the letter that Attorney Brose sent to
Reagan, advising him of his right to proceed pro se or retain alternate
counsel and file additional claims, and stating Attorney Brose’s intention to
seek permission to withdraw. Thus, Attorney Brose has complied with the
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procedural requirements for withdrawing from representation. Accordingly,
we will conduct an independent review to determine whether Reagan’s
appeal is, in fact, wholly frivolous.
The first issue raised in the Anders brief is whether the trial court
erred by granting the Commonwealth’s Motion in limine to limit testimony
regarding prior incidents between Reagan and his ex-wife, Margaret Giles
(“Giles”). Anders Brief at 3. Attorney Brose points to the trial court’s ruling
that Reagan could not testify about incidents with Giles that had occurred
more than one year prior. Id. at 4. Attorney Brose contends that
challenging the court’s ruling would be useless because Reagan did not claim
self-defense; the incidents with Giles were not criminal events; and the
victim, Gary Hudson (“Hudson”), was not deceased. Id. Attorney Brose
also points to Reagan’s claim that the gun went off “accidentally,” and
argues that such claim rendered any prior disputes between him and Giles
irrelevant. Id. at 5. Finally, Attorney Brose asserts that, even if the trial
court erred in limiting the testimony, such error was harmless, as the
evidence of Reagan’s guilt was overwhelming. Id.
In its Opinion, the trial court addressed this issue, set forth the
relevant law, and determined that the issue lacked merit. See Trial Court
Opinion, 4/6/17, at 19-20; see also id. at 21 (wherein the trial court
determined that even if its ruling was in error, such error was harmless, as
the evidence of Reagan’s guilt was overwhelming). We agree with the trial
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court’s determination, and affirm on this basis as to the first issue raised in
the Anders brief. See id.
The second issue raised in the Anders brief is whether the trial court
erred by denying Reagan’s Motion in limine to preclude Timothy Bates
(“Bates”) from providing testimony that differed from his statement to
police. Anders Brief at 5. According to Attorney Brose, “the only
discrepancy in the [trial] testimony of [] Bates versus his prior statement
was that he saw [Reagan] approach the car where the shooting occurred
after he had walked back to his truck. Id. at 6. Attorney Brose points out
that Bates consistently stated that he saw Reagan approach the car and
shoot into it. Id. Finally, Attorney Brose asserts that the defense had the
opportunity to cross-examine Bates about the discrepancy, and the jury had
the ability to assess his credibility. Id.
In its Opinion, the trial court addressed this issue, set forth the
relevant law, and determined that the issue lacked merit. See Trial Court
Opinion, 4/6/17, at 20; see also id. at 21 (wherein the trial court
determined that even if its ruling was in error, such error was harmless, as
the evidence of Reagan’s guilt was overwhelming). We agree with the trial
court’s determination, and affirm on this basis as to the second issue raised
in the Anders brief. See id.
The third issue raised in the Anders brief is whether the trial court
erred in making its rulings regarding Reagan’s expired license to carry a
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firearm. Anders Brief at 6-7. According to Attorney Brose, the trial court
initially precluded testimony regarding the expired license, but ultimately
permitted Reagan to testify about the license, and allowed the license to be
admitted as a defense exhibit. Id. at 7.
In its Opinion, the trial court addressed this issue, set forth the
relevant law, and determined that the issue lacked merit. See Trial Court
Opinion, 4/6/17, at 20-21; see also id. at 21 (wherein the trial court
determined that even if its ruling was in error, such error was harmless, as
the evidence of Reagan’s guilt was overwhelming). We agree with the trial
court’s determination, and affirm on this basis as to the third issue raised in
the Anders brief. See id.
The fourth issue raised in the Anders brief is whether the trial court
erred when it instructed the jury as to “flight as consciousness of guilt.”
Anders Brief at 7. Attorney Brose claims that there is no dispute that, after
the shooting, Reagan got in his truck and drove away from the crime scene.
Id. Attorney Brose further claims that the trial court’s instruction was taken
directly from the model jury instructions on flight as consciousness of guilt.
Id.
In its Opinion, the trial court addressed this issue, set forth the
relevant law, and determined that the issue lacked merit. See Trial Court
Opinion, 4/6/17, at 21-24. We agree with the trial court’s determination,
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and affirm on this basis as to the fourth issue raised in the Anders brief.
See id.
The final issue raised in the Anders brief is whether the evidence was
sufficient to support Reagan’s convictions. Anders Brief at 8. According to
Attorney Brose, consistent credible testimony from several witnesses, and
video evidence from the bar, placed Reagan at the scene of the shooting.
Id. Attorney Brose indicates that Reagan admitted that he approached the
car, but claimed that the gun had gone off “accidentally.” Id. Attorney
Brose asserts that “the only issue for the jury was whether [] Reagan had
the intent to fire that gun and injure or kill [] Hudson.” Id. Attorney Brose
contends that the Commonwealth presented the uncontradicted testimony of
Detective Louis Gandizio, who testified that the gun in question would not
have accidentally fired by banging it on a car window, and would only have
discharged by someone pulling the trigger. Id. at 8 (citing N.T., 7/21/16, at
286-87). Attorney Brose argues that this evidence, when viewed in the light
most favorable to the Commonwealth as the verdict winner, was sufficient to
support the verdict. Id. at 9.
In its Opinion, the trial court addressed this issue, set forth the
relevant law, and determined that the issue lacked merit. See Trial Court
Opinion, 4/6/17, at 14-19. We agree with the trial court’s determination,
and affirm on this basis as to the fourth issue raised in the Anders brief.
See id.
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Based on our independent review of the record, we conclude that all of
the issues raised in the Anders brief are, in fact, wholly frivolous. Having
found no other non-frivolous issues during our review, we grant Attorney
Brose’s Motion to Withdraw, and affirm Reagan’s judgment of sentence.
Motion to Withdraw granted; judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2017
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Circulated 10/03/2017 09:10 AM