Commonwealth v. Mummert

• Decision Date: 06 April 2015
• Docket Number: No. 1218 MDA 2014,J-S15020-15,1218 MDA 2014
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. AARON GABRIEL MUMMERT Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA Appellee v. AARON GABRIEL MUMMERT Appellant

J-S15020-15

No. 1218 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

APRIL 06, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence of June 26, 2014

In the Court of Common Pleas of Adams County

Criminal Division at No.: CP-01-CR-0000831-2013

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:

Aaron Gabriel Mummert appeals from the judgment of sentence that was imposed following his jury convictions of fleeing or attempting to elude a police officer and tampering with or fabricating physical evidence.¹Counsel for Mummert has petitioned for leave to withdraw as counsel on the ground that Mummert's issues on direct appeal are wholly frivolous. We grant the petition for leave to withdraw as counsel, and we affirm the judgment of sentence.

The trial court set forth the underlying history of this case as follows:

On June 11, 2013, at approximately 4:00 p.m., Trooper George Ross ("Trooper Ross") of the Pennsylvania State Police, Gettysburg Barracks, was in a marked patrol car positioned in the area of State Route 234 and Route 15 in Adams County, Pennsylvania. Trooper Ross received a bulletin reporting that a sport bike style motorcycle was traveling at a high rate of speed with an operator who was not wearing a shirt or a helmet. A few minutes after receiving the bulletin, Trooper Ross heard a sport bike approaching before seeing it through his rearview mirror as it approached a stop sign, failed to stop, and made a right turn onto S.R. 234. During the approximately one second during which the Trooper was able to observe the front and side of the bike, he noted that the motorcycle was dark blue and the operator was a white male with short dark hair, that he was not wearing a shirt, and that he was wearing riding glasses.

Upon making these observations, Trooper Ross turned on his police cruiser's lights and sirens and followed the sport bike in an effort to make a traffic stop. The bike was traveling faster than the trooper, who was going 35 to 50 miles per hour. Trooper Ross saw the motorcycle again when it was about 100 yards ahead of him before the motorcycle "increased speed significantly" and passed two or three vehicles on a curve. The trooper gave chase and his cruiser reached speeds of 115 to 120 miles per hour, yet the motorcycle continued to pull away. Trooper Ross testified that, at the closest, he was 100 to 150 yards from the motorcycle. Trooper Ross then met up with Officer Greg Morehead ("Officer Morehead") of the Reading Township Police Department and the two pulled their vehicles to the side of the road. After Trooper Ross provided a description of the motorcycle and the rider to Officer Morehead, Officer Morehead mentioned the name Aaron Mummert and Trooper Ross testified that the name "clicked in [his] head" as matching the description of the operator.

Trooper Ross and Officer Morehead then traveled to where they knew [Mummert] to be living, at 8 Ewell Drive in Lake Meade, arriving at approximately 4:20 p.m. When Trooper Ross arrived, he noted that there was a blue motorcycle in the driveway that did not look like the sport bike he had attempted to stop. Before Trooper Ross had exited his vehicle, [Mummert] came out of the house, wearing a black t-shirt, dark jeans, boots, and dark riding glasses on top of his head. Upon interacting with Trooper Ross, [Mummert] appeared nervous, as evidenced by the fact that he was pacing and the veins in his face and neck were pulsing. Without being questioned about a motorcycle or the reason officers were at his house, [Mummert] pointed to the motorcycle in the driveway and said, "that's my bike." When asked about

his sport bike,⁴ [Mummert] initially stated that it was at his grandmother's house in Hanover, Pennsylvania, before eventually admitting that he had placed it in the house to keep it out of the rain, despite the fact that it was not raining and there was no testimony that rain was forecasted that day.

⁴ Officer Morehead had recently interacted with [Mummert] on an earlier occasion when he was riding his sport bike.

The officers recovered a sport bike from [Mummert's] basement around 5 p.m. which Trooper Ross stated was "exactly" the bike that he had seen in his rear view mirror. The basement smelled of exhaust fumes and the bike's engine was hot to the touch. The officers then placed [Mummert] under arrest and seized the bike as evidence. Later, as Trooper Ross was typing up charges, [Mummert] stated, "all this for $107;" Trooper Ross testified that $107 is the approximate cost of a stop sign violation after accounting for fines, fees, and other costs.

On cross examination, Trooper Ross testified that Officer Morehead had asked [Mummert] to take off his shirt. [Mummert] complied and turned around to show his entire torso and Trooper Ross said "I don't know about that" because he did not recall the rider having tattoos to the extent that he observed on [Mummert].⁵ Officer Morehead then testified that he had previously interacted with [Mummert] approximately two weeks before the incident at issue, on May 22, 2013, on which occasion [Mummert] was riding his sport bike without a shirt and with a backwards baseball cap. Officer Morehead also routinely patrols Ewell Drive in Lake Meade and had seen motorcycles in [Mummert's] driveway while it was raining.

⁵ Trooper Ross testified: "For that second that he went by, I wasn't able to observe the tattoos as the distance and things it was quick. I just knew it was a white male who operated a motorcycle that was dark blue with that detailing. There was radio traffic going between Pennsylvania State Police, Adams County, even to the guard shack, and to local PDs where somewhere tattoos" were mentioned.

* * *

The jury returned a verdict of guilty on counts of fleeing or attempting to elude a police officer and tampering with orfabricating physical evidence. On June 26, 2014, [Mummert] was sentenced to fifteen (15) to thirty (30) months on his conviction of fleeing or attempting to elude [a] police officer and three (3) to six (6) months for tampering with or fabricating physical evidence, to run concurrently to his sentence on Count 1. On July 7, 2013, [Mummert] filed his Motion for Post-Trial Relief, . . . which was denied by th[e trial c]ourt. On July 8, 2013, [Mummert] filed a Motion to Order Bail Pending Defendant's Motion for Post-Trial Relief, which th[e trial c]ourt also denied. [Mummert] filed his Notice of Appeal on July 21, 2014. His Concise Statement of Matters Complained of on Appeal Pursuant to Pa.[R.A.P.] 1925(b) followed on August 14, 2014.

Trial Court Opinion ("T.C.O."), 9/22/2014, at 1-4, 7-8. On September 22, 2014, the trial court entered its Pa.R.A.P. 1925(a) opinion.

On December 9, 2014, counsel for Mummert filed an Anders brief in which he presented issues that might arguably support an appeal.² Counsel filed his petition for leave to withdraw as counsel on the same day, stating that, after a conscientious examination of the record, he determined that the appeal would be wholly frivolous. See Petition for Leave to Withdraw as Counsel, 12/9/2014, at unnumbered page 2 ¶ 4. Attached to the petition is a copy of his letter to Mummert advising him of counsel's intent to seek withdrawal as his counsel and of Mummert's right to retain new counsel or to proceed with his appeal pro se, and providing him with a copy of the Andersbrief filed with this Court. See id. at Attachment. Mummert has not responded to counsel's petition for leave to withdraw.

[I]n the Anders brief that accompanies . . . 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Commonwealth v. O'Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008) (citations omitted).

In the instant case, counsel has complied substantially with the Anders and Santiago requirements. Counsel has submitted a brief that summarizes the case and cites to the record, see Anders Brief at 5-9;refers to anything that might arguably support the appeal, id. at 10; and sets forth his reasoning and conclusion that the appeal is frivolous, id. at 10-14. See Santiago, 978 A.2d at 361. Counsel has filed a petition for leave to withdraw as counsel, sent Mummert a letter advising him that counsel found no non-frivolous issues, provided Mummert with a copy of the Anders brief, and notified Mummert of his right to retain new counsel or proceed pro se. Mummert has not responded.

"Once counsel has satisfied the [Anders] requirements, it is then this Court's duty to conduct...