Commonwealth v. Birch-Grey, No. 899 EDA 2020

• Decision Date: 29 December 2020
• Docket Number: No. 899 EDA 2020
• Citation: 245 A.3d 1105 (Table)
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Tito Reinaldo Wesley BIRCH-GREY, Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1105 (Table)

COMMONWEALTH of Pennsylvania, Appellee v. Tito Reinaldo Wesley BIRCH-GREY, Appellant

No. 899 EDA 2020

Superior Court of Pennsylvania.

Filed: December 29, 2020

MEMORANDUM BY KING, J.:

Appellant, Tito Reinaldo Wesley Birch-Grey, appeals from the judgment of sentence entered in the Lehigh County Court of Common Pleas, following his guilty plea to one count each of aggravated assault and possession of a firearm prohibited. ¹ We affirm and grant counsel's petition to withdraw.

During an altercation over a stolen stereo on March 1, 2019, Appellant shot one person in the foot and threatened to shoot another individual. The Commonwealth charged Appellant with two counts each of aggravated assault and simple assault, as well as one count each of receiving stolen property, possession of a firearm prohibited, firearms not to be carried without a license, and terroristic threats. On January 31, 2020, Appellant entered a negotiated guilty plea to one count of aggravated assault and one count of possession of a firearm prohibited. In exchange, the Commonwealth agreed to imposition of concurrent sentences. On February 25, 2020, with the benefit of a presentence investigation ("PSI") report, the court sentenced Appellant to 6 to 12 years' imprisonment for possession of a firearm prohibited, and a concurrent term of 2 to 4 years' incarceration for aggravated assault.

On February 28, 2020, Appellant filed a timely post-sentence motion to modify his sentence, which the court denied on March 4, 2020. Appellant filed a timely notice of appeal on March 6, 2020. On the same day, counsel filed a " Praecipe for Entry/Withdraw of Appearance," requesting the court to permit counsel's withdrawal. On March 9, 2020, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Counsel did not file any Rule 1925 statement. Instead, on September 1, 2020, counsel filed an application to withdraw and a brief in this Court pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). ²

As a preliminary matter, counsel seeks to withdraw his representation pursuant to Anders, supra and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; (2) file a brief referring to anything in the record that might arguably support the appeal; and (3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super. 2007). After establishing that counsel has met the antecedent requirements to withdraw, this Court makes an independent review of the record to confirm that the appeal is wholly frivolous. Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa.Super. 2006). See also Commonwealth v. Dempster , 187 A.3d 266 (Pa.Super. 2018) ( en banc ).

In Santiago, supra , our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor [ Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981) ] requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

* * *

Under Anders , the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed 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 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.

Id. at 178-79, 978 A.2d at 361.

Instantly, Appellant's counsel has filed a petition to withdraw. The petition states counsel conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to retain new counsel or to proceed pro se to raise any additional issues Appellant deems worthy of this Court's attention. In the Anders brief, counsel provides a summary of the facts and procedural history of the case. Counsel's argument refers to relevant law that might arguably support Appellant's claim on appeal. Counsel further states the reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the technical requirements of Anders and Santiago .

Appellant has not responded to the Anders brief pro se or with newly-retained private counsel. Counsel raises the following issues on Appellant's behalf:

Whether the [trial] court abused its discretion by imposing a sentence which was manifestly unreasonable based upon the factors reviewed by the court and that the court failed to properly and fully consider all those factors?

May appointed counsel be permitted to withdraw after a conscientious review of the issues and the facts pursuant to the Anders case?

( Anders Brief at 7).

Appellant argues the court's 6-to-12-year aggregate sentence is manifestly excessive where the court did not adequately consider certain mitigating factors, such as Appellant's need for treatment, his remorse, his family life, and his acceptance of responsibility, in crafting the sentence. Instead, Appellant contends the court focused solely on the seriousness of the offense. As presented, Appellant challenges the discretionary aspects of his sentence. See Commonwealth v. Lutes , 793 A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno , 668 A.2d 536 (Pa.Super. 1995), appeal denied , 544 Pa. 653, 676 A.2d 1195 (1996) (explaining claim that court did not consider mitigating factors challenges discretionary aspects of sentencing). ³

Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720 ; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f) ; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied , 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Under Pa.R.A.P. 2119(f), an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002) ; Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases." Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) ( en banc ) (emphasis in original) (internal quotation marks omitted).

"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Sierra, supra at 913. This Court does not accept bald assertions of sentencing errors as substantial questions. Commonwealth v. Malovich , 903 A.2d 1247 (Pa.Super. 2006). Rather, an appellant must articulate the bases for his allegations that the sentencing court's actions violated the sentencing code. Id. A claim of excessiveness can raise a substantial question as to the appropriateness of a sentence under the Sentencing Code, even if the sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at 624. Bald allegations of excessiveness, however, do not raise a substantial question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, there is a substantial question "only where the appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process...." Id.

"An allegation that a sentencing court failed to consider or did not adequately...