Com. v. Birch-Grey, T.

• Court: Superior Court of Pennsylvania
• Decided: December 29, 2020
• Docket: 899 EDA 2020
• Status: Unpublished

Opinion

J-S48028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TITO REINALDO WESLEY BIRCH- : GREY : : Appellant : No. 899 EDA 2020

Appeal from the Judgment of Sentence Entered February 25, 2020 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001420-2019

BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.: FILED: DECEMBER 29, 2020

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

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1 18 Pa. C.S.A. §§ 2702(a)(4) and 6105(a)(1), respectively. J-S48028-20

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

2 Generally, counsel’s failure to file a court-ordered Rule 1925 statement constitutes per se ineffectiveness. Commonwealth v. Burton, 973 A.2d 428, 431-32 (Pa.Super. 2009) (en banc). When waiver occurs due to counsel’s failure to file a court-ordered concise statement, then remand is proper. Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa.Super. 2009). However, this Court may review an appeal instead of remanding for a concise statement where the trial court addressed the issues an appellant raises on appeal in its opinion. Burton, supra. Here, the trial court opinion addresses Appellant’s discretionary aspects of sentencing claim, which is the

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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:

only issue (other than counsel’s request to withdraw) raised in the Anders brief. Therefore, we will review the sentencing issue raised in the Anders brief, despite counsel’s failure to file a court-ordered Rule 1925 statement. See id.

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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

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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

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(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

3 Although “a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his...sentence other than to argue that the sentence is illegal or that the sentencing court did not have jurisdiction, open plea agreements are an exception in which a defendant will not be precluded from appealing the discretionary aspects of the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) (emphasis in original). A plea bargain that includes a sentence recommendation, but no agreement for a stated term, however, does not necessarily preclude a challenge to the discretionary aspects of a sentence. Commonwealth v. Dalberto, 648 A.2d 16 (Pa.Super. 1994), appeal denied, 540 Pa. 594, 655 A.2d 983 (1995), cert. denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995). Here, as the Commonwealth explained at sentencing: “There was a binding agreement that [the] counts would run concurrently. All other sentencing provisions were to be open to the [c]ourt.” (N.T. Sentencing Hearing, 2/25/20, at 3). Thus, Appellant’s guilty plea was negotiated as to running the sentences concurrent to one another, but the plea did not include an agreement for a “stated term” of the sentence. Thus, Appellant is able to challenge the discretionary aspects of his sentence in this appeal. See id.

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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

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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 consider certain factors does not raise a substantial question that

the sentence was inappropriate.” Cruz-Centeno, supra at 545 (internal

quotation marks omitted). For example, an allegation that the sentencing

court ignored or did not accord proper weight to an appellant’s rehabilitative

needs does not raise a substantial question. Commonwealth v. Berry, 785

A.2d 994 (Pa.Super. 2001). On the other hand, “an excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question.” Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal denied, 629 Pa. 636,

105 A.3d 736 (2014). See also Commonwealth v. Trimble, 615 A.2d 48

(Pa.Super. 1992) (holding defendant’s claim that court failed to consider

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factors set forth under Section 9721(b) and focused solely on seriousness of

defendant’s offense raised substantial question).

Here, Appellant timely filed a notice of appeal, and preserved his

sentencing issue in a timely filed post-sentence motion and in a Rule 2119(f)

statement. See Evans, supra. As presented, Appellant’s claim concerning

an excessive sentence in combination with the court’s failure to consider

certain mitigating factors arguably raises a substantial question. See Raven,

supra.

Our standard of review concerning the discretionary aspects of

sentencing is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005).

Pursuant to Section 9721(b), “the court shall follow the general principle

that the sentence imposed should call for confinement that is consistent with

the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as

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part of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” Id.

Nevertheless, “[a] sentencing court need not undertake a lengthy discourse

for its reasons for imposing a sentence or specifically reference the statute in

question….” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.

2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record

as a whole must reflect the sentencing court’s consideration of the facts of the

case and the defendant’s character. Id. “In particular, the court should refer

to the defendant’s prior criminal record, his age, personal characteristics and

his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1, 10

(Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert

denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).

Instantly, the court imposed sentences that were in the standard range

of the guidelines. Additionally, the court had the benefit of a PSI report at

sentencing. Therefore, we can presume the court considered the relevant

factors when sentencing Appellant. See Tirado, supra (stating where

sentencing court had benefit of PSI report, law presumes court was aware of

and weighed relevant information regarding defendant’s character and

mitigating factors). Moreover, the court explained at sentencing that it

considered Appellant’s prior record, the circumstances of the altercation, and

the impact Appellant’s actions had on the victims when it crafted Appellant’s

sentence. The court also considered character letters from Appellant’s wife

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and daughter, as well as testimony from Appellant and his wife, which included

information about Appellant’s family life, employment history, acceptance of

responsibility for his actions, and expression of remorse. Thus, the court

properly considered the appropriate factors in rendering Appellant sentence,

and Appellant’s sentencing challenge fails. See Hyland, supra. Following an

independent review of the record, we agree with counsel that the appeal is

wholly frivolous. See Dempster, supra. Accordingly, we affirm the

judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/29/20

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