Com. v. Smith, J.

C
J-S02045-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JANAY SMITH                                :
                                               :
                       Appellant               :   No. 1631 EDA 2020

         Appeal from the Judgment of Sentence Entered June 18, 2020
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0000183-2019


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                                Filed: May 6, 2021

       Appellant Janay Smith appeals nunc pro tunc from the judgment of

sentence imposed following her convictions for aggravated assault and related

offenses. Appellant’s counsel (Counsel) filed a petition to withdraw and an

Anders/Santiago1 brief. We grant Counsel’s request to withdraw and affirm.

       On December 20, 2018, Chester County Police Officers Tyler Bury and

Patrick Dougherty observed Appellant’s vehicle fail to stop at three

consecutive stop signs. The officers initiated a traffic stop and approached

Appellant’s car.      When the officers asked Appellant for her license and

registration, Appellant refused to provide them. The officers then attempted

to arrest Appellant. Officer Dougherty leaned inside the vehicle to remove

Appellant from her seat. While doing so, Appellant shifted the vehicle into
____________________________________________


1 Anders v. California, 

386 U.S. 738

(1967); Commonwealth v. Santiago,

978 A.2d 349

(Pa. 2009).
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drive and accelerated, dragging Officer Dougherty in the process.             As

Appellant drove away from the scene, Officer Dougherty was thrown from the

moving vehicle. Police eventually stopped Appellant’s vehicle and arrested

her.

        After a jury trial, at which Appellant elected to proceed pro se with

stand-by counsel, Appellant was found guilty of aggravated assault, simple

assault, recklessly endangering another person (REAP), resisting arrest,

fleeing or attempting to elude a police officer, accidents involving death or

personal injury, and accidents involving death or personal injury while not

properly licensed.2 On June 18, 2020, the trial court sentenced Appellant to

an aggregate sentence of nine to twenty-three months’ incarceration, followed

by four years’ probation. Appellant filed no post-sentence motions.

        On July 29, 2020, the Public Defender’s Office of Chester County filed a

Post Conviction Relief Act3 (PCRA) petition seeking the reinstatement of

Appellant’s direct appeal rights. The PCRA court issued an order restoring

Appellant’s direct appeal rights nunc pro tunc.

        Appellant filed a notice of appeal, and the trial court ordered Appellant

to file a Pa.R.A.P. 1925(b) statement. On September 16, 2020, Counsel filed

a statement of intention to file an Anders/Santiago brief in lieu of a concise

statement. Appellant did not respond to Counsel’s Anders/Santiago brief.
____________________________________________


2See 18 Pa.C.S. §§ 2702(a)(6), 2701(a)(1), 2705, 5104; 75 Pa. C.S. §§
3733(a), 3742(a), and 3742.1(a), respectively.

3   42 Pa.C.S. §§ 9541-9546.

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The trial court declined to file a 1925(a) opinion, citing Counsel’s intent to file

an Anders/Santiago brief.

      In the Anders/Santiago brief, Counsel identifies three issues:

      1. Did the evidence presented at trial meet the weight and
         sufficiency requirements to find Appellant guilty beyond a
         reasonable doubt of aggravated assault, fleeing, accidents
         involving personal injury, simple assault, [REAP], resisting
         arrest, and accidents involving personal injury while not
         properly licensed?

      2. Was the sentence pronounced by the trial court lawful?

      3. Was the trial otherwise free of error such that Appellant is not
         entitled to a new trial?

Anders/Santiago Brief at 2-3.

      “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Wimbush, 

951 A.2d 379

, 382 (Pa.

Super. 2008) (citation omitted).      Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court’s attention. See

Commonwealth v. Goodwin, 

928 A.2d 287

, 290 (Pa. Super. 2007) (en

banc).



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     Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

     (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

.

     “Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.” 

Goodwin, 928 A.2d at 291

(citation omitted). This includes “an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 

113

A.3d 1246

, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord

Commonwealth v. Yorgey, 

188 A.3d 1190

, 1197 (Pa. Super. 2018) (en

banc).

     Here, Counsel complied with the procedural requirements discussed

above.   Counsel filed a petition to withdraw, indicating that he thoroughly

reviewed the trial record and determined that the appeal is wholly frivolous.

Counsel also attached to his brief a copy of the letter he sent to Appellant,

which advises that Appellant may proceed pro se or retain private counsel to

raise any additional issues she believes should be brought to this Court’s

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attention.   In addition, Counsel’s brief complies with Anders/Santiago

obligations set forth. Therefore, we will now undertake our own review to

determine whether Appellant’s appeal is wholly frivolous.

                          Weight of the Evidence

      The first issue identified by Counsel is that the verdicts were against the

weight of the evidence. See Anders/Santiago Brief at 12.

      An appellant wishing to challenge the weight of the evidence must

properly preserve her claim for review. Such a claim must be preserved orally

prior to sentencing, by a written motion before sentencing, or in a post-

sentence motion. See Pa.R.Crim.P. 607(A).

      Here, Appellant represented herself at trial and did not preserve her

claim in a written motion before sentencing or orally prior to sentencing. See

Pa.R.Crim.P. 607(A). Issues not raised in the trial court are waived and cannot

be raised for the first time on appeal. See Pa.R.A.P. 302(a). Therefore, we

conclude that Appellant’s weight of the evidence issue is unreviewable and

waived.

                        Sufficiency of the Evidence

      Counsel next identifies Appellant’s claim that there was insufficient

evidence to sustain each of her convictions. See Anders/Santiago Brief at

13-14.    However, it is unclear from Counsel’s Anders brief exactly which

element or elements of the crimes charged Appellant finds insufficient.

Moreover, Appellant has not responded to Counsel’s Anders brief, and




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therefore we are unable to determine what Appellant’s intended sufficiency

argument actually entails.

      In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Palmer, 

192 A.3d 85

, 89 (Pa. Super. 2018) (citation

omitted), appeal denied, 

204 A.3d 924

(Pa. 2019).

      As Appellant’s sufficiency issue is actually a broad-based challenge to

each of her convictions, we will address each type of crime.

                             Aggravated Assault

      “A person is guilty of aggravated assault if [she] . . . attempts by

physical menace to put [a police officer] . . . in fear of imminent serious bodily

injury[.]”   18 Pa.C.S. § 2702(a)(6).    As applied to aggravated assault, an

attempt “is demonstrated by proving that the accused acted in a manner

which constitutes a substantial or significant step toward perpetrating serious

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bodily injury upon another along with the intent to inflict serious bodily injury.”

Commonwealth v. Gruff, 

822 A.2d 773

, 776 (Pa. Super. 2003) (citation

omitted). Serious bodily injury is “[b]odily injury which creates a substantial

risk of death or which causes serious, permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.

§ 2301. “Intent can be proven by direct or circumstantial evidence; it may be

inferred from acts or conduct or from the attendant circumstances.”

Commonwealth v. Miller, 

172 A.3d 632

, 641 (Pa. Super. 2017) (citation

omitted and some formatting altered).

      Here, Officer Dougherty testified at trial that Appellant shifted her

vehicle into drive as he attempted to remove her from the vehicle and place

her under arrest.    See N.T., 1/28/20, at 118-19.        Officer Dougherty also

testified that Appellant accelerated her vehicle, that she dragged him in the

process, and that he was thrown from the car. See

id. at 119.

Appellant’s

conduct demonstrates that she attempted by physical menace to place Officer

Dougherty in fear of imminent serious bodily injury in the performance of his

duty. See Commonwealth v. Lloyd, 

948 A.2d 875

, 883 (Pa. Super. 2008)

(stating that swerving toward and forcing a police officer’s vehicle off the road

was sufficient evidence to sustain the appellant’s conviction for aggravated

assault). Even though Officer Dougherty did not sustain serious bodily injury,

Appellant’s conduct—namely, that Appellant drove away as Officer Dougherty

leaned inside the vehicle—shows that Appellant acted with specific intent to

place Officer Dougherty in fear of imminent serious bodily injury. See N.T.,

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1/28/20, at 124-26; see also 

Lloyd, 948 A.2d at 883

. As such, the evidence

is sufficient to sustain Appellant’s conviction for aggravated assault. See 18

Pa.C.S. § 2702(a)(6).

                                Simple Assault

      To sustain a conviction for simple assault, the Commonwealth must

prove that Appellant attempted to cause bodily injury to another. See 18 Pa.

C.S. § 2701(a)(1), (3).        The Crimes Code defines “[b]odily injury” as

“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.

      The Commonwealth may meet its burden for this crime by establishing

merely that the defendant intended to cause bodily injury; proof of actual

bodily injury is not required. See Commonwealth v. Klein, 

795 A.2d 424

,

428 (Pa. Super. 2002). “This intent may be shown by circumstances which

reasonably    suggest   that    a   defendant   intended   to   cause   injury.”

Commonwealth v. Richardson, 

636 A.2d 1195

, 1196 (Pa. Super. 1994).

      Here, as stated above, Officer Dougherty testified that he attempted to

remove Appellant from her car and place her under arrest.            As Officer

Dougherty leaned inside the vehicle to remove Appellant from her seat,

Appellant shifted her vehicle into drive and accelerated, dragging Officer

Dougherty.    See N.T., 1/28/20, at 118-19.        This evidence shows that

Appellant intended to cause Officer Dougherty bodily injury and is therefore

sufficient to sustain Appellant’s conviction for simple assault. See 18 Pa. C.S.

§ 2701(a)(1), (3); see also 

Klein, 795 A.2d at 428

.

                                     REAP

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      A person commits the offense of REAP if she “recklessly engages in

conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S. § 2705. “[REAP] requires the creation of

danger, so the Commonwealth must prove the existence of an actual present

ability to inflict harm to another.” Commonwealth v. Shaw, 

203 A.3d 281

,

284 (Pa. Super. 2019) (citation omitted).

      Here, the trial transcript establishes that Appellant drove away as Officer

Dougherty attempted to arrest Appellant. In doing so, Officer Dougherty was

thrown from Appellant’s moving vehicle. See N.T., 1/28/20, at 118-19. As

such, the evidence shows that Appellant’s conduct placed Officer Dougherty

in danger of death or serious bodily injury. See 

Shaw, 203 A.3d at 284

. The

evidence is therefore sufficient to sustain Appellant’s conviction for REAP. See

18 Pa.C.S. § 2705.

Resisting Arrest and Fleeing, or Attempting to Elude a Police Officer

      We next analyze Appellant’s convictions for resisting arrest and fleeing,

or attempting to elude a police officer.

      Our Crimes Code defines resisting arrest as follows:

      A person commits a misdemeanor of the second degree if, with
      the intent of preventing a public servant from effecting a lawful
      arrest or discharging any other duty, the person creates a
      substantial risk of bodily injury to the public servant or anyone
      else, or employs means justifying or requiring substantial force to
      overcome the resistance.

18 Pa. C.S. § 5104.




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      The offense of fleeing, or attempting to elude a police officer is defined

as follows:

      Any driver of a motor vehicle who willfully fails or refuses to bring
      his vehicle to a stop, or who otherwise flees or attempts to elude
      a pursuing officer, when given a visual and audible signal to bring
      the vehicle to a stop, commits an offense as graded in subsection
      (a.2).

75 Pa.C.S. § 3733(a).

      Here, as stated above, the testimony at trial established that Appellant

prevented Officer Bury and Officer Dougherty from effectuating a lawful arrest

during a traffic stop. See N.T., 1/28/20, at 75-78, 118-19. The evidence also

established that Appellant fled the scene of the traffic stop and engaged police

in a high-risk chase. See

id. at 121-22, 160-64, 67.

Therefore, the evidence

is sufficient to find Appellant guilty of resisting arrest and fleeing or attempting

to elude a police officer.   See 18 Pa.C.S. § 5104; see also 75 Pa.C.S. §

3733(a).

              Accidents Involving Death or Personal Injury

      We address Appellant’s intended challenge to her last convictions for

accidents involving death or personal injury and accidents involving death or

personal injury while not properly licensed.

      The offense of accidents involving death or personal injury is defined as

follows:

      The driver of any vehicle involved in an accident resulting in injury
      or death of any person shall immediately stop the vehicle at the
      scene of the accident or as close thereto as possible but shall then
      forthwith return to and in every event shall remain at the scene

                                      - 10 -
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      of the accident until he has fulfilled the requirements of section
      3744 (relating to duty to give information and render aid). Every
      stop shall be made without obstructing traffic more than is
      necessary.

75 Pa.C.S. § 3742(a).

      Our Motor Vehicle Code defines accidents involving death or personal

injury while not properly licensed as follows:

      A person whose operating privilege was disqualified, canceled,
      recalled, revoked or suspended and not restored or who does not
      hold a valid driver’s license and applicable endorsements for the
      type and class of vehicle being operated commits an offense under
      this section if the person was the driver of any vehicle and caused
      an accident resulting in injury or death of any person.

75 Pa.C.S. § 3742.1(a).

      Here, the evidence established that after Officer Dougherty was thrown

from the vehicle, Appellant drove away and failed to remain at the scene of

the accident. See N.T., 1/28/20, at 80, 85-95. Officer Dougherty sustained

injuries as a result of Appellant’s conduct.      See N.T., 1/28/20, at 124-26.

Further, the record establishes that Appellant operated her vehicle with a

suspended license.         Accordingly, the evidence is sufficient to support

Appellant’s convictions for accidents involving death or personal injury and

accidents involving death or personal injury while not properly licensed. See

75 Pa.C.S. § 3742(a); see also 75 Pa.C.S. § 3742.1(a).

      In   viewing   the    evidence   in   the   light   most   favorable   to   the

Commonwealth as the verdict winner, we agree with Counsel’s assessment

that there was sufficient evidence to support Appellant’s convictions.            See



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Palmer, 192 A.3d at 89

.         Hence, Appellant’s intended sufficiency of the

evidence claim is frivolous.

                     Discretionary Aspects of Sentencing

         Counsel next identifies a challenge to the discretionary aspects of

sentencing.      Specifically, Appellant claims that the trial court abused its

discretion and imposed an unlawful sentence. See Anders/Santiago Brief

at 16.

         Initially, we note that “challenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Derry, 

150 A.3d 987

, 991 (Pa. Super. 2016) (citation omitted and

formatting altered). An appellant challenging the discretionary aspects of her

sentence must invoke this Court’s jurisdiction by satisfying a four-part test to

determine:

         (1) whether appellant has filed a timely notice of appeal; (2)
         whether the issue was properly preserved at sentencing or in a
         motion to reconsider and modify sentence; (3) whether
         appellant’s brief has a fatal defect; and (4) whether there is a
         substantial question that the sentence appealed from is not
         appropriate under the Sentencing Code.

Commonwealth v. Tukhi, 

149 A.3d 881

, 888 (Pa. Super. 2016) (citations

omitted).

         Furthermore, “[i]ssues not presented to the sentencing court are waived

and cannot be raised for the first time on appeal.”        Commonwealth v.

Malovich, 

903 A.2d 1247

, 1251 (Pa. Super. 2006) (citation omitted); see

also Pa.R.A.P. 302(a).

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      Here, Appellant did not raise any challenges to the discretionary aspects

of her sentence. Nor did she file a post-sentence motion. Appellant therefore

waived this claim on appeal. See 

Tukhi, 149 A.3d at 888

; see also Pa.R.A.P.

302(a). Accordingly, we agree with Counsel that challenging the discretionary

aspects of Appellant’s sentence is frivolous.      See Commonwealth v.

Kalichak, 

943 A.2d 285

, 291 (Pa. Super. 2008) (observing that when an issue

has been waived, “pursuing th[e] matter on direct appeal is frivolous”).

                               Jury Instructions

      In the remaining issues raised in the Anders brief, Counsel identifies

two potential trial errors.      Counsel first notes that the Commonwealth

misstated the elements of aggravated assault twice during closing argument.

See Anders/Santiago Brief at 19. However, the record shows that the trial

court corrected these misstatements of law and explained the elements of

aggravated assault to the jury. See N.T., 1/29/20, at 73-74, 89, 101-06.

Therefore, this claim is frivolous.

                                Trial Testimony

      Counsel also notes that Officer Dougherty’s testimony may have unfairly

prejudiced Appellant at trial. See Anders/Santiago Brief at 20. Specifically,

Counsel claims that Officer Dougherty referred to Appellant as a “sovereign

citizen” and testified that he was familiar with the “sovereign citizen”

ideologies. See

id. Counsel asserts that

it could be argued that Appellant

was unfairly prejudiced by Officer Dougherty when he referred to Appellant as

a “sovereign citizen.” See

id.

– 13 –

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       “The admission of evidence is committed to the sound discretion of the

trial court and an appellate court may reverse only upon a showing that the

trial court clearly abused its discretion.” Commonwealth v. McFadden, 

156

A.3d 299

, 309 (Pa. Super. 2017) (citation and quotation marks omitted). “The

trial court will be reversed only if an error in the admission of evidence

contributed to the verdict.”

Id. (citation omitted).

Unfair

prejudice, in this context, requires that the prejudice had the

effect of suggesting an improper basis for a conviction or inflaming the jury’s

passions    such     that   it   cannot    render   an   impartial   verdict.   See

Commonwealth v. Jemison, 

98 A.3d 1254

, 1262 (Pa. 2014).                         “The

admission of evidence becomes problematic only when its prejudicial effect

creates a danger that will stir such passion in the jury as to sweep them

beyond a rational consideration of guilt or innocence of the crime on trial.”

Commonwealth v. Sherwood, 

982 A.2d 483

, 498 n.25 (Pa. 2009) (citation

and quotation marks omitted).

       Here, while Officer Dougherty referred to Appellant as a “sovereign

citizen” in his testimony, there is no evidence to suggest that the reference

was unfairly prejudicial to Appellant.4 In fact, Appellant referred to her “tribal

affiliations” as a sovereign citizen during trial. See N.T., 1/29/20, at 26. She

also implied that it was not out of the ordinary for Officer Dougherty to refer

____________________________________________


4 Our review of the record shows that Appellant preserved this issue by
objecting at trial to Officer Dougherty’s use of the term “sovereign citizen.”
See N.T., 1/28/20, at 105.

                                          - 14 -
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to her as a sovereign citizen. See

id. at 62.

Therefore, we agree with Counsel

that this claim is wholly frivolous.

                                   Conclusion

      Based on our review of the record, we agree with Counsel that the issues

discussed in the Anders/Santiago brief are frivolous.       Furthermore, our

independent review of the record does not reveal any additional, non-frivolous

issues. See 

Goodwin, 928 A.2d at 291

. Accordingly, we grant Counsel’s

petition to withdraw and affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.



          Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/21




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