Commonwealth v. Kilgus

• Decision Date: 22 October 2021
• Docket Number: J-S22012-21,1025 MDA 2020
• Parties: COMMONWEALTH OF PENNSYLVANIA v. BRENT JAMES KILGUS Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. BRENT JAMES KILGUS Appellant

No. 1025 MDA 2020

J-S22012-21

Superior Court of Pennsylvania

October 22, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered July 8, 2020 In the Court of Common Pleas of Montour County Criminal Division at No(s): CP-47-CR-0000135-2018

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PANELLA, P.J.

Brent James Kilgus ("Appellant") appeals from the judgment of sentence entered in the Montour County Court of Common Pleas on July 8, 2020. Additionally, Appellant's court-appointed counsel seeks to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm the judgment of sentence and grant counsel permission to withdraw.

Appellant was charged with various crimes arising from allegations that he had, over a year-long period, sexually assaulted a family member who was under the age of nine at the relevant times. On February 12, 2020, a jury found Appellant guilty of rape of a child, statutory sexual assault, aggravated indecent assault of a child, corruption of minors, and indecent assault of a child.^[1]

On July 8, 2020, Appellant was sentenced to 120 to 240 months' incarceration, plus three years' probation for rape of a child, 60 to 120 months' incarceration for aggravated indecent assault, 12 to 24 months' incarceration for corruption of minors, and 9 to 18 months' incarceration for indecent assault of a child. The count for statutory sexual assault merged with the count for rape of child for purposes of sentencing.

On August 6, 2020, Appellant filed a pro se notice of appeal. As we found private counsel was still listed as attorney of record, we docketed counsel as appellate counsel and issued a docketing statement to complete pursuant to Pa.R.A.P. 3517 and requested a concise statement be filed pursuant to Pa.R.A.P. 1925(b).

On August 27, 2020, Appellant filed a pro se concise statement, in which he raised the following issues: (1) the victim did not testify in the courtroom but rather over video, (2) there was no proof of penetration provided during trial, and (3) a doctor's report that had been made regarding Appellant had not been provided during trial.

On September 3, 2020, we entered an order finding Appellant had failed to file a timely docketing statement, and directing a docketing statement be filed by October 5, 2020. Again service of this request was made on counsel of record.

On October 20, 2020, due to counsel's continued failure to file a docketing statement on behalf of Appellant, we remanded to the trial court for a determination of abandonment. An abandonment hearing was held on November 12, 2020, during which trial counsel testified that he had informed Appellant that he did not believe there were grounds for an appeal and Appellant never directed him to file an appeal. Trial counsel testified that he did not hear back from Appellant and only later found out that Appellant had filed the pro se notice of appeal. The trial court found trial counsel's testimony credible and found there had been no abandonment. However, since Appellant was unable to continue to retain private counsel, the trial court appointed a public defender to represent Appellant on appeal.

Conflict counsel was subsequently appointed and filed a docketing statement on Appellant's behalf. Counsel later filed an Anders brief. On March 11, 2021, we entered an order striking the Anders brief based on counsel's failure to file an application to withdraw as counsel. We directed counsel to file either an advocate's brief or an application to withdraw along with an Anders brief that complied with all of the procedural and substantive requirements of Anders.

Counsel proceeded to file a petition to withdraw and an accompanying Anders brief. However, after review, we found the brief failed to comply with the procedural requirements of Anders, as the summary of the factual and procedural history did not contain citation to the record and counsel did not provide any argument or pertinent authority related to the issues. We therefore entered another order striking the Anders brief and directed counsel again to file a brief that complies with the requirements of Anders.

Counsel subsequently filed the instant Anders brief and re-filed his petition to withdraw.

We turn first to counsel's petition to withdraw. To withdraw pursuant to Anders, counsel must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citation omitted). With respect to the third requirement of Anders, that counsel inform the appellant of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to their petition to withdraw a copy of the letter sent to their client advising him or her of their rights." Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

An Anders brief must comply with the following requirements:

(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). "[I]f counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous." Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).

We find counsel has complied with the preliminary requirements set forth in Anders. Counsel filed a petition to withdraw, certifying he has reviewed the case and determined Appellant's appeal is frivolous. Further, counsel attached to his petition a copy of his letter to Appellant advising him of his rights. Counsel also filed a brief, which includes a summary of the history and facts of the case, with citation to the record, potential issues that could be raised by Appellant, and his assessment of why those issues are meritless. Counsel has thus complied with the requirements of Anders.^[2] As of this date,

Appellant has not filed a response. We proceed to review the issues outlined in the Anders brief.

In his first issue, Appellant argues the trial court erred in allowing the minor victim to testify by video rather than in the courtroom. Section 5985 of the Judicial Code governs testimony by a contemporaneous alternative method:

(a) Contemporaneous alternative method.-Subject to subsection (a.1), in any prosecution or adjudication involving a child victim [ ], the court may order that the testimony of the child victim [ ] be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method. Only the attorneys for the defendant and for the Commonwealth, the court reporter, the judge, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child victim [ ], including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child victim [ ] but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross- examination of the child victim [ ] shall proceed in the same manner as normally permitted.

(a.1) Determination.-Before the court orders the child victim [ ] to testify by a contemporaneous alternative method, the court must determine, based on evidence presented to it, that testifying either in an open forum in the presence and full view of the finder of fact or in the defendant's presence will result in the child victim [ ] suffering serious emotional distress that would substantially impair the child victim's [ ] ability to reasonably communicate. In making this determination, the court may do all of the following:

(1) Observe and question the child victim [ ], either inside or outside the courtroom.

(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim [ ] in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985(a), (a.1).

We have previously noted that "[f]ew published decisions address § 5985, and those that do have not announced a standard for reviewing the trial court's decision." Commonwealth v. Hudson-Greenly, 247 A.3d 21, 25 (Pa. Super. 2021) (citing Commonwealth v. Tyrrell, 177 A.3d 947, 952 (Pa. Super. 2018)). In line with these other cases, we will employ the principles of statutory construction to determine whether the Commonwealth complied with the explicit terms of Section 5985. See id.; see also Commonwealth v. Torres-Kuilan, 156 A.3d 1229, 1231-32 (Pa. Super. 2017).

Preliminarily we note Appellant failed to raise an objection to the contemporaneous hearing at any point during the hearing or during trial. ...