Com. v. Spada, L.

J-S56012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LAWRENCE SPADA :

:

Appellant : No. 101 EDA 2019

Appeal from the Judgment of Sentence Entered December 3, 2018

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0000358-2015

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 31, 2019

Lawrence Spada appeals from the judgment of sentence entered in the

Lehigh County Court of Common Pleas on December 3, 2018. After two days

of hearings, the trial court found that Spada violated the terms of his

probation. Subsequently, it resentenced Spada to twelve to twenty-four

months of imprisonment. Additionally, Spada’s court-appointed counsel seeks

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

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

counsel permission to withdraw.

Spada’s initial incarceration stemmed from his guilty plea to one count

of terroristic threats, see 18 Pa.C.S.A. § 2706. For this offense, Spada was

sentenced to eighteen to thirty-six months’ incarceration to be followed by

twenty-four months of probation. After serving his maximum term of

incarceration, Spada was admitted to the Horsham Clinic in Montgomery

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County, Pennsylvania, for mental health services. However, shortly after his

admission and while still on probation, Spada assaulted another patient at the

clinic. Faced with new criminal charges from this fracas, Spada pleaded guilty

to the summary offense of harassment, see 18 Pa.C.S.A. § 2709, in exchange

for a “time served” sentence.

After a two-day Gagnon II1 hearing, wherein Spada admitted that he

“lost it. [He] hit [the victim] like five or six times,” N.T., 11/19/18, at 22, the

trial court found that he had violated the terms of his probation, revoked it,

and sentenced him to an additional term of incarceration. In support of its

sentence, the trial court considered, among other things, the “assaultive

behavior” of Spada’s actions, the myriad time he spent in disciplinary

segregation while incarcerated, and the minimal amount of time he had been

successful while on probation. See id., 12/3/18, at 47-48. The trial court

concluded its sentence was warranted because “Spada is an extremely

dangerous individual.” Id., at 49.

After sentencing, Spada filed a timely post-sentence motion, which the

trial court denied. Immediately thereafter, Spada filed a timely notice of

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1 Referencing Gagnon v. Scarpelli, 411 U.S. 778 (1973). “When a …

probationer is detained pending a revocation hearing, due process requires a

determination at a pre-revocation hearing, a Gagnon I hearing, that probable

cause exists to believe that a violation has been committed. Where a finding

of probable cause is made, a second, more comprehensive hearing, a Gagnon

II hearing, is required before a final revocation decision can be made.”

Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000). At the

hearings, Spada conceded that he pleaded guilty to harassment. See N.T.,

11/19/18, at 9.

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appeal to this Court. Moreover, both Spada and the trial court have complied

with the dictates of Pa.R.A.P. 1925.

With the appeal now properly before us, we must first turn to counsel’s

petition to withdraw. To withdraw pursuant to Anders, counsel must:

1) petition the court for leave to withdraw stating that, after

making a conscientious examination of the record, counsel has

determined that the appeal would be frivolous; 2) furnish a

copy of the [Anders] brief to the [appellant]; and 3) advise

the [appellant] that he or she has the right to retain private

counsel or raise additional arguments that the [appellant]

deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). In further illuminating the third requirement of

Anders, that counsel inform the appellant of his or her rights in light of

counsel’s withdrawal, this Court has held that counsel must “attach to their

petition to withdraw a copy of the letter sent to their client advising him or

her of their rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.

Super. 2005).

An Anders brief must comply with the following requirements:

(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.

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“[I]f 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, 721 (Pa. Super. 2007) (brackets

added) (citation omitted).

Counsel filed a petition to withdraw as counsel, certifying that he has

“thoroughly reviewed the record … and the applicable law” and “believes that

[Spada’s] appeal is wholly frivolous.” Petition to Withdraw as Counsel, ¶¶ 7-

8. Further, counsel attached to his petition a copy of his letter to Spada,

advising that he may retain new counsel, proceed pro se, or raise any points

not raised by counsel in the Anders brief. See id., at ¶ 11. Counsel also filed

a brief, which includes a summary of the history and facts of the case,

potential issues Spada could utilize to support his appeal, and counsel’s

assessment as to why those issues are meritless, including citations to

relevant legal authority.

Accordingly, counsel has complied with the requirements of Anders and

Santiago. Spada has not responded to counsel’s petition to withdraw as

counsel. We proceed to review the issues identified in the Anders brief.

Spada raises two issues for our consideration:

1) Was sentencing Spada to total confinement upon revocation of

his probation an error of law because: (1) Spada was not

convicted of another crime as defined by 18 Pa.C.S.A. § 106;

(2) the evidence was insufficient to demonstrate that Spada is

likely to commit another crime if not imprisoned; and (3) the

evidence was insufficient to prove that confinement is

essential?

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2) Did the trial court err in crafting his sentence where the

sentence was: (1) manifestly unreasonable; (2) greater than

required to protect the public, (3) not in proportion to the

gravity of the underlying violation; and (4) not in consideration

of Spada’s rehabilitative needs?

See Appellant’s Brief, at 3.

While Spada’s first issue contends that his sentence following probation

revocation was legally erroneous, it appears undisputed that revocation, itself,

was warranted. “The Commonwealth establishes a probation violation

meriting revocation when it shows, by a preponderance of the evidence, that

the probationer’s conduct violated the terms and conditions of his probation,

and that probation has proven an ineffective rehabilitation tool incapable of

deterring probationer from future antisocial conduct.” Commonwealth v.

Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation omitted). “Conviction

of a new crime is a sufficient basis for a court to revoke a sentence of

probation.” Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super.

2008) (citation omitted). At his first revocation hearing, Spada conceded that

he had been convicted of a new crime. See N.T., 11/19/18, at 9. On this basis,

the court revoked Spada’s probation. See id., 12/3/18, at 43.

However, for the court to sentence an individual to “total confinement”

upon revocation of probation, it would need to find that: 1) the defendant was

convicted of another crime; 2) commission of another crime by the defendant

is likely; or 3) total imprisonment is essential “to vindicate the authority of the

court.” 42 Pa.C.S.A. § 9771(c).

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Here, the court found not only that Spada had been convicted of another

crime, but also that he was likely to commit another crime or crimes in the

future. See N.T., 12/3/18, at 46-49. Spada contends that a summary offense

does not qualify as a crime. However, summary offenses are considered

crimes so long as they can be punished by a sentence of incarceration. See

Commonwealth v. Matty, 619 A.2d 1383, 1385-86 (Pa. Super. 1993).

Therefore, because of Spada’s admission to his harassment conviction, the

court did not commit an error of law when it sentenced Spada to incarceration.

Furthermore, the court concluded that Spada was likely to commit more

crimes if he remained at liberty. In coming to this conclusion, the court

considered: 1) the nature of Spada’s willful probation violation, occurring

fewer than two months after his release from incarceration; 2) his extensive

history of misconduct while incarcerated; 3) the character of his initial

terroristic threats offense; and 4) his inability to properly address his mental

health and substance issues. See N.T., 12/3/18, at 46-49. This reasoning is

well supported by the record and is clearly reasonable.

Accordingly, as either rationale employed by the court is sufficient, we

find no basis to conclude that the court somehow committed an error of law

or abused its discretion when it sentenced Spada to incarceration in

accordance with 42 Pa.C.S.A. § 9771(c).

Spada’s second issue challenges the discretionary aspects of his

sentence. To dispute the discretionary aspects of his sentence, Spada was

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required to “set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Pa.R.A.P. 2119(f).

The concise statement must specify where the sentence falls in

relation to the sentencing guidelines and what particular provision

of the code it violates. Additionally, the statement must specify

what fundamental norm the sentence violates and the manner in

which it violates that norm. If the statement meets these

requirements, we can decide whether a substantial question

exists.

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.2004) (internal

quotations and citations omitted).

Spada’s brief does not contain a 2119(f) statement. Therefore, Spada

has failed to raise a substantial question. Ordinarily, this would result in waiver

of the issue. However, in light of counsel’s petition to withdraw, we address

Spada’s discretionary sentencing arguments. See Commonwealth v. Lilley,

978 A.2d 995, 998 (Pa. Super. 2009) (establishing that, in conjunction with a

Anders brief, a defective 2119(f) statement is not inherently fatal), citing

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)

(concluding that Anders “requires review of issues otherwise waived on

appeal”).

Spada contends, among other things, that his sentence was

unreasonable. See Appellant’s Brief, at 3. We disagree. “This Court’s scope of

review in an appeal from a revocation sentencing includes discretionary

sentencing challenges.” Cartrette, 88 A.3d at 1034. While imposing sentence

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following revocation of probation, a court must disclose a statement of reasons

for the sentence imposed. See id., at 1041. This disclosure need not be a

lengthy discourse, but must adequately reflect the court’s consideration of the

facts of the case and the defendant’s character. See Commonwealth v.

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010). As always, the court must

follow the general principle underlying sentencing in the Commonwealth: “the

sentence imposed should call for confinement that is consistent with the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.” See Cartrette, 83 A.3d at 1040-41 (citation omitted).

Here, the court went into great detail explaining why it crafted the

sentence the way that it did. See N.T., 11/19/18, at 46-49. The trial court

read Spada’s presentence report. See id., at 48. Where the sentencing court

had the benefit of a presentence investigation report (“PSI”), we can assume

the sentencing court “was aware of relevant information regarding the

defendant's character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Furthermore, the court noted that Spada “has now been convicted 36

different times.” N.T., 11/19/18, at 48. The court also observed that the

probation violation involved “assaultive behavior within two months of his

release from a state correctional institution.” Id., at 47. Based upon these

statements, we conclude the court properly considered all the necessary

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circumstances. Accordingly, we find there has been no error of law or abuse

of discretion in the fashioning of Spada’s sentence.

Having reviewed the issues raised in counsel’s Anders brief, we agree

with counsel for Spada that the within appeal is wholly frivolous.2 As such, we

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

Judgment of sentence affirmed. Petition for leave to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/19

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2We additionally note that our independent review of the record did not reveal

any additional, non-frivolous issues that were overlooked by counsel.

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