Com. v. Garang

• Citation: 9 A.3d 237
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Daniel Thuc GARANG, Appellant.
• Decision Date: 18 November 2010
• Court: Superior Court of Pennsylvania

9 A.3d 237 COMMONWEALTH of Pennsylvania, Appellee v. Daniel Thuc GARANG, Appellant. Superior Court of Pennsylvania. Submitted Oct. 4, 2010. Filed Nov. 18, 2010.

Daniel T. Garang, appellant, pro se.

Robert A. Sambroak, Asst. Dist. Atty., for Com., appellee.

BEFORE: STEVENS, BOWES, and FITZGERALD,^*, JJ.

OPINION BY STEVENS, J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Erie County on October 23, 2009, at which time Appellant Daniel Thuc Garang (hereinafter "Appellant") was sentenced to an aggregate term of thirteen (13) years nine (9) months to thirty-two (32) years in prison. Appellant's counsel also has filed a petition to withdraw and a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); Commonwealth v. McFarland, 386 Pa.Super. 91, 562 A.2d 369 (1989); and Commonwealth v. Wilson, 396 Pa.Super. 296, 578 A.2d 523 (1990). Upon a review of the record, we grant counsel's petition and affirm the judgment of sentence.

Following a jury trial, Appellant was found guilty of Attempted Homicide, ¹ Discharge of Firearm into Occupied Structure,² Possession of Instruments of Crime,³ three counts of Recklessly EndangeringAnother Person,⁴ and Aggravated Assault.⁵ At trial, the victim testified that on November 1, 2008, his children informed him they had been involved in a fight earlier in the day. N.T., 9/14/09, at 29. Though the victim did not see the fight, it resulted in three of his four children being taken to the hospital by ambulance. Id. At trial, the victim stated he was "one hundred-one million percent" sure the man he saw at his home that evening was Appellant. He explained that Appellant along with several others came to his home and after exchanging a short greeting with him, drew a handgun. Id. at 33. When Appellant pulled out the gun, the victim explained he shut the door and lay on the floor. Id. at 34. Appellant fired two shots through the door the first of which penetrated the door at the level of the victim's head, and the second struck where his midsection would have been were he still standing. Id. at 33-34. The victim's brother and daughter, who had been standing behind him, crawled toward the basement. Id. at 34. The victim identified Appellant's photo from an array a few days later. Id. at 36.

The victim also revealed that his brother and children told him Appellant warned the children after the fight he would be back. Id. at 42, 45. The victim's children further told him Appellant had stolen their cell phone before the altercation and refused to return it unless they paid him fifty ($50.00) dollars. Id. at 46.

In addition, Detective John Holmes testified that as part of his involvement of the investigation of the instant matter he had spoken with the victim and members of his family at the home after which he compiled a photographic lineup and showed it to the victim two (2) days later. Id. at 51-53. Detective Holmes testified that after examining the photos for "a few seconds" the victim pointed to the photo of Appellant and said "a hundred percent, that's him." Id. at 53. The victim then drew an arrow to Appellant's photo and indicated the date and time along with his signature. Id. at 53-54. Appellant's brother and daughter testified regarding the events surrounding the shooting, but neither was able to see the shooter clearly. Id. at 82-94.

Mr. Malual Abol testified on behalf of Appellant and explained that he was Appellant's friend and knew Appellant was not the shooter. He acknowledged he and Appellant were present at the scene. Mr. Abol admitted on cross-examination that this was the first time he spoke about Appellant's innocence, though Appellant had been facing charges for almost a year. N.T., 9/15/09, at 9-17. He also explained only Appellant had been in a fight involving the victim's children earlier that day, and that he, Appellant and three others just went to the victim's home that evening without anyone suggesting they do so. Id. at 18-20. Appellant's brother, Deng Garang, also testified that people "sometimes" tell him he resembles Appellant. Id. at 23.

Following trial but before sentencing, Appellant filed a Motion to Dismiss prior to Sentencing Based Upon Newly Discovered Violation of Pa.R.Crim.P. 573 wherein he averred his charges should be dismissed in light of the Commonwealth's failure to turn over a victim impact statement it had received on March 17, 2009, which contained statements allegedly favorable to Appellant. Appellant also filed a Motion for Reconsideration of Sentence on November 2, 2009. In its Memorandum filed December 14, 2009, the trial court denied both Motions.

Appellant filed a timely notice of appeal on January 13, 2010, and thereafter in an Order filed on January 14, 2010, the trialcourt required Appellant to file a statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b). On February 5, 2010, Appellant filed his Motion to Extend the Time Period for Filing 1925(b) Statement and on February 8, 2010, the trial court granted Appellant's motion and specified that Appellant would have twenty (20) days after receiving the transcripts in which to file and serve the Statement. Appellant did not file the same until April 1, 2010. In an Order filed on March 11, 2010, the trial court deemed any issue Appellant may raise on appeal to be waived in light of his failure to file and serve the Statement in a timely manner.

On July 15, 2010, Appellant's counsel filed her Petition to Withdraw as Counsel with this Court. Along with her petition, counsel included a copy of a letter addressed to Appellant and dated July 13, 2010, and a Brief for Appellant. "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. Daniels, 999 A.2d 590, 593 (Pa.Super.2010) citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.2007) ( en banc ) (citation omitted).

Recently, our Supreme Court discussed the three requirements that counsel must meet before he or she is permitted to withdraw from representation as follows:

First, counsel must petition the court for leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolous; second, he must file a brief referring to any issues in the record of arguable merit; and third, he must furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or to himself raise any additional points he deems worthy of the Superior Court's attention. Super. Ct. Op. at 2 (citing Commonwealth v. Ferguson, 761 A.2d 613, 616 (Pa.Super.2000)).

Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349, 351 (2009). ⁶

In her Petition for Leave to Withdraw as Counsel and Anders brief, Appellant's counsel reveals that she has made a conscientious examination of the record and found that there are no non-frivolous issues to be raised on appeal. The brief itself, moreover, does not resemble a no-merit letter or amicus curiae brief as it sets forth the issues in neutral fashion, supplies governing authority on the issues, and offers no argument against Appellant's interest. Finally, counsel attached to her petition as "Exhibit A" a copy of the letter sent to Appellant wherein she advised him that she had made a conscientious examination of the record, found no issues of arguable merit, and that he had a right to retain new counsel, proceed pro se, or raise any additional issues that he deems worthy of the court's attention. Therefore, counsel has complied with the procedural requirements of Anders,McClendonand Santiago, supra. As counsel has complied with all of the requirements set forth above, we now proceed to an independent review of the record and the issues counselstated arguably support an appeal. Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super.2010).

In her Anders brief, counsel provides the following Statement of the Questions Presented for our Review.

Whether the [c]ourt erred or abused its discretion by refusing to dismiss the charges pursuant to Article II of the U.S. Constitution when the Commonwealth failed to seek permission from the President before charging Appellant?

Whether the [c]ourt erred or abused its discretion by failing to dismiss the charges based upon judicial economy in consideration of Appellant's previously imposed lengthy sentence at another docket and certain deportation after release?

Whether there was sufficient evidence to support Appellant's convictions?

Whether the [c]ourt erred or abused its discretion by failing to instruct the jury that Appellant could not be convicted of conspiracy as he was not charged with conspiracy despite the prosecutor's argument to the contrary?

Whether the trial court erred or abused its discretion when it failed to grant Appellant's motion to dismiss prior to sentencing based upon the Commonwealth's failure to provide in discovery an exculpatory statement made by a victim concerning his identification of Appellant.

Brief for Appellant at 4.

In its Opinion filed pursuant to Pa.R.A.P.1925(a), the trial court explains that the final transcript had been filed by the Court Reporter's Office on February 18, 2010, and when it had not received Appellant's statement of matters complained of on appeal by March 11, 2010, it issued an Order declaring all appealable issues waived and directing the Clerk of Courts to submit the record to this Court; however, the trial court acknowledges that Appellant's trial counsel filed and served his statement of matters complained of on appeal on April 1, 2010, and averred therein that she had not received the transcripts until March 12, 2010. The trial court ultimately explained it would consider the merits of the issues "[i]n lieu of holding a possible remand hearing as to when counsel received the transcripts." ⁷

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