Com. v. Kearns

• Decision Date: 31 March 2006
• Citation: 896 A.2d 640
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jason David KEARNS, Appellant.
• Court: Pennsylvania Superior Court

Page 640

896 A.2d 640

COMMONWEALTH of Pennsylvania, Appellee v. Jason David KEARNS, Appellant.

Superior Court of Pennsylvania.

Submitted December 5, 2005.

Filed March 31, 2006.

Robert J. Trambley, Meadville, for appellant.

Francis J. Schultz, Assistant District Attorney, Meadville, for Commonwealth, appellee.

BEFORE: DEL SOLE, P.J., BENDER, J., and McEWEN, P.J.E.

OPINION BY BENDER, J.:

¶ 1 This is an appeal from a judgment of sentence imposed upon Appellant, Jason David Kearns, after he was convicted in a jury trial of involuntary manslaughter, aggravated assault, endangering the welfare of children, escape and resisting arrest. Appellant's counsel, the Public Defender's Office of Crawford County, has filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). After reviewing counsel's submissions and the certified record, we deny counsel's petition to withdraw and remand for the filing of an advocate's brief and completion of the record.

¶ 2 The charges in the instant case stem from the death of S.P., the nearly three year-old daughter¹ of Appellant's girlfriend, Charyn Parsons. Appellant was residing with Ms. Parsons and S.P. in a basement apartment located in Conneautville, Crawford County, during the relevant time period and was involved in the use and manufacture of methamphetamine. During the afternoon and evening of March 4, 2004, Appellant, Ms. Parsons and S.P. traveled throughout Erie and Crawford Counties stopping at grocery, drug or other stores which carried cold medicine to purchase decongestant tablets for use in the manufacturing of methamphetamine. During this period of time, both Appellant and Ms. Parsons ingested methamphetamine on at least three or four occasions.

¶ 3 After Appellant obtained a bag full of over-the-counter cold medicine, the three returned to their residence between 11:00 p.m. and midnight, whereupon Ms. Parsons fed S.P. some cereal and then attempted to put the child to bed. S.P. was a bit restless and wanted her favorite stuffed animal, which had been left in the car. Ms. Parsons then went outside to retrieve the stuffed animal and left her daughter in bed. Id. at 65. Ms. Parson's testified that when she left to retrieve the stuffed animal, S.P. was alert and lying in bed with no indication that there was anything wrong with her. Id. Ms. Parsons was gone for approximately three to five minutes. Upon returning, she found her daughter lying on the floor in the doorway of the bedroom in a state of unconsciousness and with blood in her saliva. Id. at 67, 69. During the time that Parsons left her daughter, Appellant was the only person in the apartment. Id. at 65-66.

¶ 4 At first Ms. Parsons believed the child had fallen out of bed and would be all right. However, soon Ms. Parsons became alarmed upon perceiving that S.P.'s breathing and heart rate seemed abnormal. Ms. Parsons called 911 and the paramedics arrived and took her daughter to the hospital. S.P. died on April 6, 2005, having never regained consciousness. At trial, Rachel Berger, M.D., a specialist in Pediatrics and Child Abuse Medicine, testified that the victim had multiple injuries. Id. at 10-13. These included a fractured skull, bleeding in the brain, a liver laceration, and multiple bruises on her ears, face, and chest. Id. at 14.

¶ 5 At the conclusion of trial, a jury found Appellant guilty of the aforementioned offenses and, on May 4, 2005, the trial court sentenced Appellant to a period of incarceration of 15¼ to 31 years. With respect to the charge of involuntary manslaughter, the court imposed a sentence of 72 to 144 months' imprisonment reflecting the court's conclusion that the charge of involuntary manslaughter was to be graded as a felony of the second degree pursuant to 18 Pa.C.S. § 2504(b).

¶ 6 Appellant filed a motion to modify sentence asserting that the sentence imposed on the involuntary manslaughter charge was illegal in two respects. First, the maximum sentence of 12 years' imprisonment exceeded the statutorily authorized maximum sentence for a second degree felony which, at 18 Pa.C.S. § 1103, is set at 10 years' imprisonment. Second, the sentence was illegal as it exceeded the statutorily authorized maximum sentence of five years imprisonment for a misdemeanor of the first degree. This argument was built upon the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and is tied to the provisions of 18 Pa.C.S. § 2504(b), which indicate that involuntary manslaughter is to be graded as a misdemeanor of the first degree unless the victim is under 12 years of age and is in the care, custody or control of the person who caused the death, in which case the offense is to be graded as a felony of the second degree. Appellant contended that the holding issued in Apprendi required the facts, upon which the enhanced grading hinged, to be put to, and decided by, a jury. On May 16, 2005, the court granted Appellant's motion to modify in part. Acknowledging that the sentence of 12 years exceeded the statutory maximum of 10 years' imprisonment, the court modified the sentence on involuntary manslaughter to five to 10 years' imprisonment. Appellant's aggregate sentence after correction was 14¼ to 29 years' imprisonment. The instant appeal was then filed and counsel has submitted a petition to withdraw and an Anders brief.

¶ 7 In order for counsel to withdraw from an appeal pursuant to Anders and its Pennsylvania equivalent, McClendon, the following requirements must be met:

(1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous;

(2) counsel must file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and

(3) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.

Commonwealth v. Ferguson, 761 A.2d 613, 616 (Pa.Super.2000). After Superior Court receives an Anders brief and is satisfied that counsel has complied with the aforementioned requirements, the Court then must undertake an independent examination of the record to determine whether or not the appeal is wholly frivolous. Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super.1997).

¶ 8 Appellant's counsel has filed a petition stating that he has made a conscientious review of the record and that the appeal is wholly frivolous. The petition states that he sent a letter to Appellant which informed him of his right to file a pro se brief raising additional issues, or retain new counsel. The petition also states that a copy of the Anders brief was sent along with the letter. This letter is attached to counsel's petition. Accordingly, we conclude that counsel has complied with the first and third Anders requirements. See Commonwealth v. Millisock, 873 A.2d 748, 750-51 (Pa.Super.2005).

¶ 9 Although appointed counsel fulfilled the mechanical requirements for successfully seeking leave to withdraw his representation, we cannot agree with the assessment that the appeal is wholly frivolous. Indeed, we believe the sole issue briefed, that Appellant's sentence violated the decision in Apprendi, is an issue that appears to have at least arguable merit that compels briefing by an interested advocate as opposed to one seeking to withdraw his representation due to his assessment that the appeal is "wholly frivolous." Our reasoning follows.

¶ 10 In Apprendi, the United States Supreme Court reviewed a New Jersey sentencing statute that provided for the "enhancement" of a sentence if the sentencing court found that the condition(s) for enhancement was proven by a preponderance of the evidence. The condition for enhancement in Apprendi was that "`the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.' N.J.S.A. 2C:44-3(e)."² State v. Apprendi, 159 N.J. 7, 10, 731 A.2d 485, 486 (1999). Under the provisions of the statute, after a conviction or entry of a guilty plea to a qualifying crime, the state prosecutor could move the court to impose an enhanced sentence. A sentencing hearing would follow, complete with the hearing of testimony and the receipt of evidence, after which the court would decide whether the state had proven the existence of the condition for enhancement by a preponderance of the evidence.

¶ 11 In Apprendi's case, Apprendi pled guilty to two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an anti-personnel bomb. Under New Jersey law, a second degree felony carried a range of punishment of five to ten years' imprisonment. As part of the plea agreement, the State reserved the right to request imposition of an enhanced sentence under N.J.S.A. 2C:44-3(e) with respect to one of the unlawful possession of a firearm offenses. That request was made after the court accepted the plea agreement and a sentencing hearing followed. The sentencing court concluded, after hearing relevant evidence, that the state had proven by a preponderance of the evidence that Apprendi's crime of possessing a firearm for an unlawful purpose was motivated by "racial bias."³ Pursuant to the above finding, the court was empowered to impose a sentence from 10 to 20 years' imprisonment on the count in question,⁴ and the court thus imposed a sentence of 12 years' imprisonment. Apprendi appealed the decision, first to the Superior Court of New Jersey and then to the New Jersey Supreme Court, contending that allowing the imposition of the enhanced...