Com. v. Gulden, P.

• Court: Superior Court of Pennsylvania
• Decided: January 3, 2023
• Docket: 104 MDA 2022
• Status: Unpublished

Opinion

J-S28021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PATRICK SEAN GULDEN : : Appellant : No. 104 MDA 2022

Appeal from the Judgment of Sentence Entered December 15, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001047-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 3, 2023

Patrick Sean Gulden appeals from the judgment of sentence entered

following his conviction for two counts each of terroristic threats and

harassment.1 Gulden’s counsel filed a petition to withdraw as counsel and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967). We grant

counsel’s petition to withdraw and affirm the judgment of sentence.

Gulden was arrested in June 2021, following threats he made to his

mother, Betty Ann Halderman, and her fiancée, James Williams. At trial,

Halderman, Williams, and Gulden testified.

Halderman testified that she lived with Williams.2 N.T., Oct. 27, 2021,

at 14. Gulden resided with her and Williams “off and on.” Id. at 15. One ____________________________________________

1 18 Pa.C.S.A. §§ 2706(a)(1) and 2709(a)(3), respectively.

2Halderman is 73 years old and has been in a relationship with Williams for 33 years. N.T., Oct. 27, 2021,at 14-15. J-S28021-22

evening in June 2021, Gulden went out and did not return home that night.

Id. When he did return, “he wasn’t right.” Id. She testified that Gulden was

talking about things that were not true, such as “saying [Halderman] wasn’t

his mother.” Id. Gulden said he was a “one percenter” and he was “jumping

up and down, walking back and forth, screaming.” Id. at 15-16. When asked

what Gulden meant by “one percenter,” Halderman stated that “[h]e got a

motorcycle and thinks he’s in a gang, and he’s not.” Id. at 16. Halderman

testified that Gulden said that “somebody has to die tonight because youse

[sic] are trying to kill me.” Id. When she said they were not trying to kill him,

he responded, “Well, somebody’s setting me up with the . . . federal

government.” Id. at 16-17. Halderman stated that Gulden was not talking

normally, was jumping up and down, and “walking around with his hands

(indicating) and around the chair saying you have to die, one of you have [sic]

to die because youse [sic] are trying to get me killed.” Id. Gulden further

stated that “[b]y nine o’clock, if I don’t have my keys, one of you is gonna

die.” Id. She testified that she was scared. Id.

Halderman testified that after three or four hours she left, saying she

was going out for a cigarette, and Gulden locked the door so she could not

return. Id. at 18, 25. She said Williams was still in the house and she was

concerned Gulden would do something to Williams. Id. When she returned,

Williams was outside and Gulden had locked the doors. Id. at 19. After Gulden

found the keys, he apologized to Williams but continued to threaten

Halderman. Id. at 20.

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Williams testified that Gulden came home and “was flipping out,” saying

“[he was] a one percenter, somebody’s got to die, it’s either you or Betty

tonight.” Id. at 35-36. He stated Gulden was circling Williams “like he was

gonna do something.” Id. at 35. Williams testified it went on like that “for a

good while,” until Halderman left to get cigarettes. Id. at 36. He stated he

was scared “because when somebody is circling you like that, you don’t know

what they’re gonna do,” and Gulden’s pupils were small, and he was

unpredictable. Id. Williams testified that after Halderman left, he went

outside, and Gulden “was still carrying on, swinging his hands, and saying

stuff.” Id. at 37.3

Gulden testified in his own defense. He testified that he “just

nonchalantly came in, said my keys are missing, I’d like to know where my

keys are.” Id. at 55. Nothing else happened on the night in question. Id. He

testified that “right after [he] asked them [where his keys were,] [his] keys

all of a sudden appeared,” and he “kn[e]w they had something to do with

them going missing.” Id. at 56. Gulden testified that Halderman’s and

Williams’ testimony was “all made up,” and they were “just trying to get [him]

jammed up.” Id. at 57.

The jury found Gulden guilty of the above-referenced offenses. At the

sentencing hearing, Gulden informed the court he wanted to proceed pro se.

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3 Police Officer Travis Bowman also testified. N.T., Oct. 27, 2021, at 48-51.

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The court held a Grazier4 hearing, after which it found Gulden knowingly,

voluntarily, and intelligently waived his right to counsel, but also appointed

trial counsel as stand-by counsel. N.T., Dec. 15, 2021, at 15. The court

sentenced Gulden to concurrent terms of one to five years’ incarceration for

each terroristic threat conviction and concurrent terms of 30 to 90 days’

incarceration for the harassment convictions. Gulden filed a pro se post-

sentence motion, which the trial court denied. The court again advised Gulden

of his right to counsel, and the court conducted another colloquy, after which

it found Gulden knowingly, voluntarily, and intelligently waived his right to

counsel. Order, Jan. 5, 2022. The court also again appointed trial counsel as

stand-by counsel. Gulden filed a timely notice of appeal.

While the appeal was pending, Gulden filed in this court an application

for the appointment of counsel. We remanded to the trial court to conduct a

hearing to determine whether Gulden wished to proceed with appointed

counsel from the public defender’s office or pro se. Order, Mar. 9, 2022. The

trial court responded that Gulden wished to have counsel, and that it had

appointed trial counsel, who had also acted as stand by counsel, as counsel

for the appeal. Counsel filed an Anders brief in this court and a petition to

withdraw as counsel. Gulden filed a pro se response.

Counsel lists one issue in the Anders brief: “Did the Commonwealth

present sufficient evidence to support the convictions for terroristic threats?”

4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Anders Br. at 4. Gulden’s pro se response raises a claim of ineffective

assistance of counsel and a claim that the county and public defender office

were conspiring against him. Motion to Raise Any Points that I Deem Worthy

of the Court’s Attention, filed July 20, 2022 (“Gulden’s Response”).

Because counsel has filed an Anders brief, we must first address

whether counsel has satisfied the procedural requirements under Anders.

See Commonwealth v. Cox, 231 A.3d 1011, 1014 (Pa.Super. 2020). An

Anders brief is filed “when counsel believes an appeal is frivolous and wishes

to withdraw from representation[.]” Id. In such a case, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006)

(citation omitted).

Additionally, an Anders brief 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

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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).

If counsel has satisfied these requirements, we then must conduct “a

full examination of all the proceedings[] to decide whether the case is wholly

frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.Super.

2018) (en banc) (quoting Anders, 386 U.S. at 744). Should we determine

that the appeal is wholly frivolous, we may grant counsel’s petition to

withdraw. However, “if [this Court] finds any of the legal points arguable on

their merits (and therefore not frivolous) [we] must, prior to decision, afford

the indigent the assistance of counsel to argue the appeal.” Id. (quoting

Anders, 386 U.S. at 744).

Counsel completed the procedural requirements for withdrawal under

Anders. He filed a petition with this Court to withdraw, stating that after his

examination of the record, he has determined the appeal would be frivolous.

He also filed a brief referring to any issues that might arguably support the

appeal, and he furnished a copy of the brief to Gulden and advised him of his

right to retain new counsel, proceed pro se, or raise any additional points he

deems worthy of this Court’s attention. See Application to Withdraw as

Counsel, filed June 29, 2022; Anders Br. at App. D, Letter from Kent D.

Watkins to Patrick S. Gulden, dated June 29, 2022. Further, counsel’s Anders

brief summarizes the procedural history and facts, with citations to the record;

refers to anything in the record that counsel believes arguably supports the

appeal; sets forth counsel’s conclusion that the appeal is frivolous; and

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explains his reasons for concluding that the appeal is frivolous, including

citation to relevant law.

We will now address the issue raised in counsel’s Anders brief – whether

the evidence was sufficient to support the terroristic threat convictions. A

challenge to the sufficiency of the evidence requires us to determine whether

the evidence supports every element of the crime charged beyond a

reasonable doubt. Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa.Super.

2015). As sufficiency of the evidence is a question of law, our standard of

review is de novo. Id. Our scope of review is limited to the record evidence,

which we view in the light most favorable to the Commonwealth, as verdict-

winner. Id.

“A person commits the crime of terroristic threats if the person

communicates, either directly or indirectly, a threat to . . . commit any crime

of violence with intent to terrorize another[.]” 18 Pa.C.S.A. 2706(a)(1). “[T]he

Commonwealth must prove that 1) the defendant made a threat to commit a

crime of violence, and 2) the threat was communicated with the intent to

terrorize another or with reckless disregard for the risk of causing terror.”

Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super. 2003) (quoting

Commonwealth v. Tizer, 684 A.2d 597, 600 (Pa.Super. 1996)) (alteration

in Reynolds). “Neither the ability to carry out the threat, nor a belief by the

person threatened that the threat will be carried out, is an element of the

offense.” Id. (quoting In re J.H., 797 A.2d 260, 262 (Pa.Super. 2002)).

“[T]he harm sought to be prevented by the statute is the psychological

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distress that follows from an invasion of another’s sense of personal security.”

Id. (citation omitted). “Section 2706 is not meant to penalize mere spur-of-

the-moment threats which result from anger.” Id. (quotation marks and

citation omitted). Therefore, the court “must consider the totality of

circumstances to determine whether the threat was a result of a heated verbal

exchange or confrontation.” Id. (citation omitted).

Here, the victims testified Gulden threatened them for numerous hours,

repeatedly stating that someone was going to die. While threatening them, he

circled them and acted erratically. Both victims testified that they were scared

by Gulden’s threats and behavior. While Gulden offered an exculpatory version

of events, the factfinder was capable of determining which version to believe.

We find no reasonable basis on which to challenge the sufficiency of the

evidence. See id.; Commonwealth v. Fenton, 750 A.2d 863, 865-66

(Pa.Super. 2000) (sufficient evidence for terroristic threats conviction where

defendant festered anger and showed a desire to terrify by stating he planned

to kill and had the means to do it and telling the victim to lock his door).

We next address the issues raised in Gulden’s response. He raises claims

of ineffective assistance of counsel and claims the county and public defender

office were conspiring against him. He claims “[t]here is a connection between

the couple I was staying with working with the county [and] public defender .

. . to target me purposefully with intent.” Gulden’s Response at 2.

We cannot review his ineffectiveness claims on direct appeal.

Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (providing that,

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with limited exceptions, a court cannot review ineffective assistance of counsel

claims on direct appeal). Such claims must be raised in a petition filed

pursuant to the Post Conviction Relief Act. See 42 Pa.C.S.A. §§ 9541-9546.

Id.5

We have reviewed the record and have found no non-frivolous claims

for appeal. We therefore grant the petition to withdraw as counsel and affirm

the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/3/2023

5 To the extent Gulden also attempts to raise the claims raised in his pro se 1925(b) statement, that is, that his convictions or sentence violated the double jeopardy clause of the United States Constitution, and his sentence was harsh and extreme, we conclude these claims lack a reasonable basis and are therefore frivolous. See Trial Court Opinion, filed Feb. 9, 2022, at 3.

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