Com. v. Gonzalez-Iriarte, O.

• Court: Superior Court of Pennsylvania
• Decided: March 1, 2016
• Docket: 94 WDA 2015
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : OLIVAR GONZALEZ-IRIARTE, : No. 94 WDA 2015 : Appellant :

Appeal from the Judgment of Sentence, December 18, 2014, in the Court of Common Pleas of McKean County Criminal Division at No. CP-42-CR-0000272-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 1, 2016

Olivar Gonzalez-Iriarte appeals from the December 18, 2014 judgment

of sentence following his conviction of aggravated assault, endangering the

welfare of children, simple assault, and recklessly endangering another

person (“REAP”).1 The trial court appointed Douglas J. Garber, Esq., as

appellant’s counsel for both the trial and his appeal. Attorney Garber filed a

petition to withdraw on June 2, 2015, alleging that the appeal is frivolous,

accompanied by an Anders brief.2 We will grant counsel’s withdrawal

petition and affirm appellant’s judgment of sentence.

1 18 Pa.C.S.A. §§ 2702, 4304, 2701, and 2705, respectively. 2 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J. S71014/15

This case concerns injuries sustained by J.D., a two-year-old child.3

On the morning of March 25, 2014, Daniel Herbert,4 the victim’s

grandfather, drove Amanda Diaz-Polo, the victim’s mother and appellant’s

girlfriend, to work.5 (Id. at 35.) Herbert, suspecting that appellant may be

abusing the victim, activated the recording device on his cell phone and

placed his cell phone under the couch in the living room. (Id. at 31.) Some

30-45 minutes later, Herbert returned home and checked on the victim.6

(Id. at 39.) Herbert found the victim lying in bed staring at the ceiling.

(Id.) Herbert took the victim with him to the living room, so that Herbert

could listen to the recording. (Id. at 37.)

After taking the victim to the couch, Herbert noticed bruising on the

victim, and he noticed that the victim’s eyes were rolling toward the back of

his head. (Id.) After listening to an excerpt of the recording, which Herbert

described as “somebody gasping for their life,” Herbert took the victim to the

emergency room at Bradford Regional Medical Center. (Id. at 37, 40.)

3 It is common practice in this court to identify minors by their initials. 4 Although Daniel Herbert identified himself as such at trial and at the suppression hearing, he was formerly known as Daniel Tucker. The witness claims that he “divested” the name “Tucker.” (Notes of testimony, 11/18/14 at 48.) 5 Appellant is not the victim’s father. 6 Herbert moved in with Diaz-Polo, her two children, and appellant in early March 2014. (Id. at 27-28.)

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Appellant and the victim’s four-year-old sister accompanied Herbert and the

victim to the emergency room. (Id.)

McKean County Children and Youth Services (“CYS”) was called to the

hospital for a possible case of child abuse. (Id. at 63.) Amanda Crowe of

CYS responded to the call, and photographed bruises on the victim’s head,

back, feet, neck, chin, legs, face, and stomach. (Id. at 64-66.) The victim

was diagnosed with blunt force trauma to the abdomen and a concussion.

(Id. at 83.) It was also determined that the victim sustained a broken foot

that was starting to heal. (Id.)

The Bradford Police arrested appellant and charged him with

aggravated assault, simple assault, endangering the welfare of children, and

REAP. Appellant filed a motion to suppress the recording made by Herbert,

which the trial court denied on August 8, 2014. A trial by jury was held on

November 18, 2014, and the jury convicted appellant on all counts. The

trial court sentenced appellant on December 18, 2014, to an aggregate

sentence of no less than 50 months’ imprisonment and no more than

156 months’ imprisonment, with credit for time served.

On January 12, 2015, appellant filed a notice of appeal. The trial court

ordered appellant to produce a concise statement of errors complained of on

appeal on January 23, 2015, pursuant to Pa.R.A.P. 1925(b). On April 24,

2015, Attorney Garber notified the trial court of his intention to file an

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Anders brief. Attorney Garber filed his petition to withdraw and Anders

brief with this court on June 2, 2015.

A request by appointed counsel to withdraw pursuant to Anders and Santiago gives rise to certain requirements and obligations, for both appointed counsel and this Court. Commonwealth v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

These requirements and the significant protection they provide to an Anders appellant arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007). This Court has summarized these requirements as follows:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

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 additional

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points worthy of the Court’s attention.

Woods, 939 A.2d at 898 (citations omitted).

There are also requirements as to the precise content of an Anders brief:

The Anders brief that accompanies court-appointed counsel’s petition to withdraw ... 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.

Santiago, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed counsel has met these obligations, it is then our responsibility “to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Id. at 1248. In so doing, we review not only the issues identified by appointed counsel in the Anders brief, but examine all of the proceedings to “make certain that appointed counsel has not overlooked

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the existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Attorney Garber’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant; advised him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

court’s attention; and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005) (citation omitted). See Commonwealth v.

Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). As Attorney Garber has

complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

Once counsel has met his obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of appellant’s appeal.

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Appellant’s sole issue on appeal is whether the Commonwealth

presented sufficient evidence to warrant convictions for aggravated assault,

endangering the welfare of children, simple assault, and REAP.

In reviewing the sufficiency of the evidence, we view all evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable [the fact-finder] to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to a crime beyond a reasonable doubt. Although a conviction must be based on “more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.”

Moreover, when reviewing the sufficiency of the evidence, the Court may not substitute its judgment for that of the fact finder; if the record contains support for the convictions, they may not be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

Moreover, when applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact, while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted); appeal dismissed, 54 A.3d 22 (Pa. 2012).

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We first review appellant’s aggravated assault conviction. The statute

defines aggravated assault as when a person “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to a child less than

six years of age, by a person 18 years of age or older.” 18 Pa.C.S.A.

§ 2702(a)(8).

The Commonwealth introduced photographic evidence of the victim’s

injuries taken by Amanda Crowe, a CYS employee. (Notes of testimony,

11/18/14 at 63.) Crowe took the photographs as part of her response to a

report of possible child abuse. (Id.) According to Crowe’s testimony, the

photographs depicted bruising on the victim’s head, back, feet, neck, chin,

legs, face, and stomach. (Id. at 64-66.) The jury also heard testimony

from Diaz-Polo and Herbert indicating that when Diaz-Polo and Herbert left

the house on the morning of March 25, 2014, the victim did not have any

visible injuries. (Id. at 11; 34.) Both Diaz-Polo and Herbert testified that,

upon leaving the house, appellant was the only adult in the house with the

victim and the victim’s four-year-old sister. The Commonwealth also played

Herbert’s tape recording of appellant’s interaction with the victim. Herbert

described the sounds heard on the tape as “more than cries. It sounded like

somebody gasping for their life.” (Id. at 37.) Through the testimony of

Crowe, Diaz-Polo, and Herbert, the Commonwealth sufficiently proved

beyond a reasonable doubt that appellant caused bodily injury to the victim.

Due to the fact that appellant was over 18 years of age and the victim was

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two years old at the time of the assault, the Commonwealth presented

sufficient evidence to warrant a conviction of aggravated assault.

We next review the sufficiency of the evidence of appellant’s conviction

of endangering the welfare of children. Endangering the welfare of children

is defined as, “[a] parent, guardian, or other person supervising the welfare

of a child under 18 years of age . . . commits an offense if he knowingly

endangers the welfare of the child by violating a duty of care, protection, or

support.” 18 Pa.C.S.A. § 4304(a)(1). This court established a three-part

test for determining whether the elements of endangering the welfare of

children have been met:

(1) the accused was aware of his duty to protect the child; (2) the accused was aware that the child was in circumstances that could threaten the child’s physical or psychological welfare; and (3) the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations

In the instant case, the Commonwealth proved all three elements of

endangering the welfare of children beyond a reasonable doubt. The record

indicates that appellant was the only adult present in the home at the time

the victim was assaulted and appellant was aware of this fact. The record

further indicates that appellant violated his duty to the victim when appellant

assaulted the victim, thereby placing the victim in circumstances that could

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endanger his physical and psychological wellbeing. See id. at 199.

Therefore, the Commonwealth has sufficiently proven, beyond a reasonable

doubt, the elements required to warrant a conviction of endangering the

welfare of children.

A review of the Commonwealth’s evidence for simple assault and REAP

is not necessary, as both offenses are lesser-included offenses of aggravated

assault. Commonwealth v. Brown, 605 A.2d 429, 432 (Pa.Super. 1992)

(finding that the elements of simple assault are met with a conviction for

aggravated assault); Commonwealth v. Smith, 956 A.2d 1029, 1036

(Pa.Super. 2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010)

(“Reckless endangerment is a lesser included offense of aggravated assault

and where the evidence is sufficient to support a claim of aggravated assault

it is also sufficient to support a claim of recklessly endangering another

person.”), quoting Commonwealth v. Thompson, 739 A.2d 1023,

1028 n.13 (Pa. 1999), cert. denied, 531 U.S. 829 (2000).

In sum, we find this appeal to be wholly frivolous, and our

independent review of the record has not disclosed any other potentially

non-frivolous issues. Consequently, we grant counsel’s petition to withdraw,

and we affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/1/2016

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