Com. v. Becote, J.

J-S38007-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOSEPH WILLIAM BECOTE :

:

Appellant : No. 3216 EDA 2023

Appeal from the Judgment of Sentence Entered November 9, 2023

In the Court of Common Pleas of Delaware County

Criminal Division at No: CP-23-CR-0002029-2022

BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED JUNE 27, 2025

Appellant, Joseph William Becote, appeals from the judgment of

sentence imposed on November 9, 2023, in the Court of Common Pleas of

Delaware County. Appellant challenges the sufficiency and the weight of the

evidence supporting his conviction. Before this Court, Amy J. Litvinov,

Esquire, has petitioned to withdraw as Appellant’s counsel and filed a brief

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

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

On October 17, 2023, after a bench trial, Appellant was found guilty of

defiant trespassing, 18 Pa.C.S.A. § 3503(b)(1)(i). On the same day, the trial

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* Former Justice specially assigned to the Superior Court.

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court sentenced Appellant to time served (5 days) to 90 days of confinement,

ordering his release having satisfied the maximum sentence.

Appellant timely filed a post-sentence motion, challenging the weight of

the evidence and the legality of his sentence. Following a hearing on

November 9, 2023, the trial court amended Appellant’s sentence order to note

that his address was verified in open court. It also amended the sentence,

increasing the time served from 5 days to 90 days, while keeping the original

maximum sentence (90 days), effectively sentencing Appellant to a 90-day

flat sentence. Thereafter, on November 17, 2023, the trial court denied

Appellant’s post-sentence motion without reference to or explanation for the

amended sentence. This appeal followed.

On appeal, Appellant alleges that the evidence was insufficient to convict

him of defiant trespass and that the verdict was against the weight of the

evidence. Appellant also challenges the legality of his sentence. Before

addressing the merits of the claims, we must address counsel’s application to

withdraw. In doing so, we are guided by the following principles.

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.

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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.

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

(citations omitted).

Our Supreme Court has further detailed counsel’s duties as follows:

[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.

Santiago, 978 A.2d at 361; see also Commonwealth v. Dempster, 187

A.3d 266, 270 (Pa. Super. 2018) (en banc). Once we conclude that counsel

fulfilled all these requirements, we proceed to examine the record to

determine whether the case is wholly frivolous. See Commonwealth v.

Yorgey, 188 A.3d 1190, 1196 (Pa. Super. 2018) (en banc).

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

Anders brief,1 we conclude that counsel has substantially complied with the

requirements set forth above. Counsel provided an appropriate summary of

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1 Following our remand, counsel filed with this Court a revised Anders Brief

on April 24, 2025.

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the facts and procedural history. See Anders Brief at 6-8. Further, she

supplied the brief to Appellant and advised him of his right to hire new counsel

or proceed pro se in this Court. The brief stated that the appeal is frivolous

and presented its reasons. Appellant did not file a response to counsel’s

Anders Brief.

Accordingly, we can proceed to “‘make an independent judgment to

decide whether the appeal is in fact wholly frivolous.’” Commonwealth v.

Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978

A.2d at 354 n.5). In this review, this Court first considers the issues raised

by counsel in the Anders brief and determines whether they are in fact

frivolous. Dempster, 187 A.3d at 272. In addition, if the Court finds those

issues frivolous, this Court conducts a review of the record to ascertain if, on

its face, there are non-frivolous issues that counsel, intentionally or not,

missed or misstated. Yorgey, 188 A.3d at 1196-97; Dempster, 187 A.3d at

271-72.

Counsel raises three issues: (i) The evidence is insufficient to establish

that Appellant had the mens rea required to sustain a conviction for defiant

trespass, (ii) Appellant’s conviction is against the weight of the evidence, and

(iii) Appellant’s sentence is illegal. We will address each ad seriatim.

When reviewing a challenge to the sufficiency of the evidence, our

standard is well-settled. We review the evidence in the light most favorable to

the verdict winner, giving that party the benefit of all reasonable inferences

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drawn from the evidence. Commonwealth v. Alford, 880 A.2d 666, 669-

670 (Pa. Super. 2005).

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

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. Tejada, 107 A.3d 788, 792-793 (Pa. Super. 2015)

(citation omitted).

In relevant part, defiant trespass is defined as follows: “A person

commits an offense if, knowing that he is not licensed or privileged to do so,

he enters or remains in any place as to which notice against trespass is given

by . . . actual communication to the actor[.]” 18 Pa.C.S.A. § 3503(b)(1)(i).

“Thus in order to establish a violation it is necessary to prove that the

defendant: 1) entered or remained upon property without a right to do so; 2)

while knowing that he had no license or privilege to be on the property; and

3) after receiving direct or indirect notice against trespass. The crime of

defiant trespass thus includes an element of intent or mens rea.”

Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995)

(emphasis in original).

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The trial court addressed the claim as follows:

[O] February 8, 2022, around four o’clock in the morning, Officer

Elijah Brown of the Upper Darby Township Police Department was

dispatched to a call for the ongoing problem of a trespasser

sleeping in the stairwell of the apartment building. As Officer

Brown tried to approach [Appellant] to contact him, he ran away.

Officer Brown ran after him, and after verbal commands, he was

finally able to stop [Appellant]. Officer Brown told [Appellant] he

was not permitted to be on the premises. When Officer Brown got

back to the station, he searched the police department records

and found two prior incident reports where [Appellant] was

apprehended at the same apartment building and advised each

time that he was not permitted to be on the premises. Here, the

evidence clearly supports [Appellant]’s conviction for Defiant

Trespasser.

Trial Court Opinion, 1/31/24, at 4-5.

We agree with the trial court’s analysis and conclusion. See also

Commonwealth v. Bennett, 124 A.3d 327, 331 (Pa. Super. 2015) (evidence

that defendant, who had been informed multiple times that he was not to be

on victim’s property, was apprehended there twice was sufficient to support

defiant trespass conviction). Accordingly, as the evidence supporting this

conclusion is not “so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances[,]” we will

not disturb the verdict on those grounds. Tejada, 107 A.3d at 792.

Next, Appellant argues that the verdict is against the weight of the

evidence, which we review according to the following standard:

A claim alleging the verdict was against the weight of the evidence

is addressed to the discretion of the trial court. Accordingly, an

appellate court reviews the exercise of the trial court’s discretion;

it does not answer for itself whether the verdict was against the

weight of the evidence. It is well settled that the [jury] is free to

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believe all, part, or none of the evidence and to determine the

credibility of the witnesses, and a new trial based on a weight of

the evidence claim is only warranted where the [jury’s] verdict is

so contrary to the evidence that it shocks one’s sense of justice.

In determining whether this standard has been met, appellate

review is limited to whether the trial judge’s discretion was

properly exercised, and relief will only be granted where the facts

and inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation

omitted).

The trial court found the weight of the evidence claim meritless as it

found the verdict to be fully supported by the evidence. See Trial Court

Opinion, 1/31/24, at 6. Indeed, based on the facts, as described above, we

conclude that the trial court did not abuse its discretion in denying Appellant’s

weight of the evidence claim. Accordingly, we agree with counsel that

appellant is not entitled to relief on this claim.

Lastly, as per our directive, Appellant argues that his sentence is illegal

as it appears that the trial court imposed a flat 90-day sentence. While

counsel agrees with Appellant’s claim, counsel ultimately concludes that the

claim is moot as Appellant served his sentence. We agree.

A person convicted of a summary offense may be sentenced to a term

of imprisonment, the maximum of which cannot be more than 90 days. See

18 Pa.C.S.A. § 106(c)(2). Additionally, Section 9756 of the Sentencing Code

provides that in imposing total confinement, the trial court shall specify a

maximum period, as well as a minimum sentence that does not exceed one-

half of the maximum. 42 Pa.C.S.A. § 9756(a), (b)(1). We agree with counsel,

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therefore, that it appears that the trial court’s amended sentencing order

appears to render the sentence illegal for violating Section 9756.

However, Appellant has served his sentence. Additionally, there is no

indication of collateral criminal or civil consequences to be endured by

Appellant as the result of the illegal sentence that had expired. Accordingly,

Appellant’s legality of sentence claim is moot. See Commonwealth v. King,

786 A.2d 993, 996 (Pa. Super. 2001) (finding a defendant’s challenge to

sentence moot where sentence had expired). Because the claim is moot,

there is no relief we can grant that would have any legal force or effect. See

Commonwealth v. Nava, 966 A.2d 630, 633 (Pa. Super. 2009) (“An issue

before a court is moot if in ruling upon the issue the court cannot enter an

order that has any legal force or effect.”). As a result, we agree with counsel

that the third issue cannot support this appeal, as it is “moot and incapable of

appellate review.” King, 786 A.2d at 996.

Based on our review of the record, therefore, we agree with counsel’s

assessment that the three issues raised here are frivolous. Moreover, after

conducting a full examination of all the proceedings as required pursuant to

Anders, we discern no non-frivolous issues to be raised on appeal. Yorgey,

188 A.3d at 1196-97; Dempster, 187 A.3d at 271-72. Accordingly, we grant

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

Petition to withdraw granted. Judgment of sentence affirmed.

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Date: 6/27/2025

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