Com. v. Smallwood, A.

Opinion

J-S35014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUGUST SMALLWOOD : : Appellant : No. 2609 EDA 2019

Appeal from the Judgment of Sentence Entered July 7, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006462-2016

BEFORE: BOWES, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED: JANUARY 8, 2021

August Smallwood appeals from the aggregate judgment of sentence of

ten to twenty years of incarceration which was imposed after he was convicted

of rape and related charges. Appellant’s counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant

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

In 2014, at the age of seventeen, J.K. (“Victim”) was a runaway living

on the streets of Philadelphia. N.T., 4/3/17, at 36. She encountered

Appellant, who offered her shelter in his home in exchange for becoming

Victim’s “pimp.” Id. at 37. Appellant instructed Victim to bring men to

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* Retired Senior Judge assigned to the Superior Court. J-S35014-20

Appellant’s house, engage in oral and vaginal sex with them, and give all

proceeds to Appellant. Appellant also took nude photographs of Victim, which

he posted on Backpage1 in order to garner more “dates.” Id. at 41, 77. If

victim did not make at least $150 dollars a week, Appellant would “smack her”

in the face. Id. at 43.

Victim began to fear Appellant after she found a gun and drugs in the

bedroom she shared with him. Id. at 63. She also heard screaming coming

from another woman inside the house. Id. at 50. Appellant also began to get

physically violent towards Victim. Victim described an incident where

Appellant took her down to the basement, removed her clothes, tied her up

and “whooped” her on her breasts, back and butt with what “felt like a belt.”

Id. at 50-52. Another time Appellant got “angry” with Victim, so he sliced her

wrist with a box cutter, an injury which required stitches. Id. at 65, 69-71.

Finally, Appellant began engaging in nonconsensual sex with Victim. Id. at

54-55, 58. Eventually, Victim waited until Appellant left the house and fled

“so [that] he wouldn’t slap me.” Id. at 87-88.

A couple of weeks later, Victim was picked up by the Philadelphia Vice

Unit during a street operation. Because she was still underage, she was

brought into headquarters for an interview with members of the Child

Exploitation Task Force. Id. at 105-08. During the interview, Victim gave the

authorities Appellant’s first name and described his tattoos. At a second

1 Backpage is a website used for prostitution. See N.T., 4/3/17, at 74.

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interview, Victim identified Appellant’s house and described the location where

Appellant concealed his gun and drugs. Id. at 110. Police executed a search

warrant of Appellant’s home, but it had already been cleared out. An arrest

warrant was issued the same day. After several months of searching,

authorities located and arrested Appellant in Delaware.

On April 3, 2017, Appellant waived his right to a jury trial and proceeded

to a bench trial. The Commonwealth put forth testimony from Victim and

members of the Child Exploitation Task Force who had interviewed Victim.

Appellant elected not to testify. The trial court found Appellant guilty of rape,

promoting the prostitution of minor, photographing sexual acts of a minor,

unlawful contact with a minor, sexual trafficking of a minor, sexual assault,

corruption of a minor, possession of an instrument of crime (“PIC”), simple

assault, and recklessly endangering another person (“REAP”). N.T. 4/3/17, at

150. Appellant was found not guilty of involuntary deviate sexual intercourse,

unlawful restraint, involuntary servitude, and false imprisonment. Id.

On July 7, 2017, Appellant appeared for sentencing. After reviewing a

pre-sentence investigation report and listening to statements by Victim,

Appellant’s sister, Appellant’s daughter, and Appellant, the court sentenced

Appellant to an aggregate sentence of ten to twenty years of imprisonment. 2

2 Appellant received concurrent ten to twenty year sentences of incarceration for rape, unlawful contact, trafficking of a minor, and sexual abuse of a minor; for promoting prostitution of a minor, Appellant received a concurrent term of three and a half to seven years of incarceration; for corruption of the morals

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Appellant was also advised of his Megan’s law Tier Three lifetime registration

requirements and his appellate rights. The court specifically informed

Appellant that if he wished to challenge his sentence or the weight of the

evidence that he would need to file a post-sentence motion before proceeding

with his direct appeal. N.T., 7/7/17, at 37-39. Appellant indicated that he

understood his appellate rights. Id. at 39. However, no post-sentence motion

or direct appeal was filed.

Instead, Appellant filed a timely pro se petition pursuant to the Post-

Conviction Relief Act (“PCRA”) seeking to reinstate his appellate rights and

asserting many claims of trial counsel ineffectiveness. Appointed counsel

sought the reinstatement of Appellant’s direct appeal rights. The PCRA court

granted the petition and Appellant filed a timely notice of appeal. In lieu of a

concise statement, Appellant’s counsel filed a statement indicating that he

intended to file an Anders brief. See Pa.R.A.P. 1925(c)(4). In the statement,

counsel explained that Appellant wished to challenge the voluntariness of the

jury trial waiver and sufficiency of the evidence on appeal. Appellant also filed

several pro se letters indicating that he wished to challenge the sufficiency of

the evidence on appeal. The trial court did not file an opinion, because the

trial judge was no longer sitting as a judge in Philadelphia County.

of a minor, Appellant received a three to seven year term of incarceration that ran consecutive to the sentence imposed at the corruption of the morals of minor charge; and for simple assault, Appellant received a concurrent sentence of one to two years of incarceration. The REAP and sexual assault convictions merged for purposes of sentencing.

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In this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review of

this matter.

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 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. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

in 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

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appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statues on point that have led to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied with the requirements

set forth above. Counsel set forth the procedural and factual case history,

referred to two issues that arguably support the appeal, stated his conclusion

that the appeal is frivolous, and cited to the record and case law which

supports that conclusion. See Anders brief at 5-12. Additionally, counsel

gave Appellant proper notice of his right to immediately proceed pro se or

retain another attorney.3 See Santiago, supra; Letter, 2/18/2020.

Accordingly, we proceed to an examination of the issues raised to discern if

they are frivolous. Commonwealth v. Dempster, 187 A.3d 266, 273

(Pa.Super. 2018) (en banc).

Counsel identified two issues that arguably support this appeal:

1. Appellant’s plea counsel forced Appellant into waiving his right to a jury trial and, therefore, judgment of sentence should be vacated and this matter should be remanded for a jury trial.

2. There is insufficient evidence to support Appellant’s convictions because Complainant’s testimony was inconsistent, uncorroborated, and contradictory and, therefore, judgment of sentence should be vacated.

3 Appellant did not file a response to counsel’s petition.

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Anders brief at 8, 10.

Counsel’s first issue of arguable merit implicates whether trial counsel’s

performance was constitutionally deficient. Anders brief at 8. However, in

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013), our Supreme

Court reaffirmed its holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002), that, absent certain circumstances not present here,4 claims of

ineffective assistance of counsel are to be deferred until collateral review

under the PCRA. Accordingly, Appellant’s first claim is frivolous as raised on

direct appeal.

Counsel’s second issue of arguable merit questions the sufficiency of the

evidence to sustain all of Appellant’s convictions. Anders brief at 10. Our

standard of review when considering a challenge to the sufficiency of the

evidence is:

[w]hether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and ____________________________________________

4 In Holmes, our Supreme Court held that the trial court may address claims of ineffectiveness on direct appeal where (1) discrete claims are “apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice,” or (2) the defendant seeks to litigate prolix claims, there is good cause shown, and review is preceded by the defendant’s knowing and express waiver of PCRA review. Commonwealth v. Holmes, 79 A.3d at 562, 563-64 (Pa. 2013).

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inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in 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 witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)

(citations and quotation marks omitted).

Appellant’s arguments are not based upon the statutory elements of the

crimes for which he was convicted, but rather the overall lack of evidence

corroborating the victim’s testimony. However, it is well-established that “a

solitary witness’s testimony may establish every element of a crime, assuming

that it speaks to each element, directly and/or by rational inference.”

Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa.Super. 2018).

Accordingly, the Commonwealth is only required to put forth additional

evidence, where a sole witness’s testimony does not establish every element

of the crimes charged.

Here, Victim positively identified Appellant as her “pimp.” N.T. 4/3/17,

at 37. She detailed how he prostituted her, took naked pictures of her, and

physically and sexually assaulted her, all while she was seventeen years old.

Id. at 37-103. Accordingly, if believed, Victim’s testimony was sufficient to

establish that Appellant committed rape, promoting prostitution of a minor,

photographing a sex act of a child, unlawful contact with a minor, trafficking

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a minor, sexual assault, corruption of minors, possession of an instrument of

crime, simple assault, and recklessly endangering another person. No

additional corroboration was needed. Accordingly, we agree with counsel that

the second issue of arguable merit is frivolous.5

Further, we have conducted a “full examination of the proceedings” and

have determined that “the appeal is in fact wholly frivolous.”

Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since

our review did not disclose any other arguably meritorious claims, we grant

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

Dempster, supra at 273.

Petition of Stephen T. O’Hanlon, Esquire, to withdraw as counsel is

granted. Judgment of sentence affirmed.

5 To the extent that Appellant wishes to also challenge the weight of the evidence in this appeal, we note that it is waived for failure to raise it before the trial court. See Pa.R.Crim.P. 607(A) (“A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion.” Appellant was specifically warned of this requirement at sentencing. N.T. 7/7/17, at 39. Therefore, Appellant has waived this issue for failing to preserve it. An issue that is waived is frivolous. See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.Super. 2008) (holding that when an issue has been waived, “pursuing th[e] matter on direct appeal is frivolous”).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/8/21

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