Com. v. Brown, T.

J-S34011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TERRANCE L. BROWN :

:

Appellant : No. 1267 MDA 2019

Appeal from the Judgment of Sentence Entered June 24, 2019

In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP-22-CR-0003627-2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 15, 2020

Terrance L. Brown appeals from the judgment of sentence imposed on

June 24, 2019, in the Court of Common Pleas of Dauphin County. A jury

convicted him of strangulation and simple assault,1 but acquitted him of

attempted murder, aggravated assault, and terroristic threats.2 The trial court

sentenced Appellant to an aggregate term of 3 to 10 years’ imprisonment.

Contemporaneous with this appeal, Appellant’s counsel has filed a

petition to withdraw from representation and an Anders brief.3 See Anders

v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434

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1 18 Pa.C.S. §§ 2718(a)(1) and 2701(a)(1), respectively.

2 18 Pa.C.S.A. §§ 901, 2702(a), and 2706, respectively.

3On March 11, 2020, the Commonwealth informed this Court it would not file

a brief in this matter.

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A.2d 1185 (Pa. 1981). The two issues addressed in the Anders brief are

challenges to the weight and sufficiency of the evidence. After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm and grant counsel’s application to withdraw.

We take the underlying facts and procedural history in this matter from

the trial court’s October 7, 2019 opinion and our independent review of the

certified record.

The testimony at trial revealed the following facts. [R.H.]

(“victim”) and Terrance Brown (“Appellant”) started a relationship

in 2015. They lived together for a short period of time and had a

sexual relationship together. On June 9, 2018[,] the victim and

the Appellant were drinking and having fun. They decided to

spend the night together at a local hotel, the Red Roof Inn

(“hotel”). While at the hotel, the victim and the Appellant began

to argue and it turned into a physical confrontation. The victim

testified that the Appellant grabbed her neck and [choked] her

while she was sitting on the bed. The victim was knocked off the

bed and into the wall and was [choked], hit, and kicked. At this

point, the victim went into the bathroom and called her mom. The

Appellant went for food, while the victim was in the bathroom, and

when the Appellant returned, he busted through the bathroom

door and started arguing with the victim again. The Appellant

grabbed the victim by her throat and held her underwater. The

victim testified that the Appellant had a foot on her chest and his

hands around her throat. Additionally, the victim testified that the

Appellant told her he was “gonna kill me.”

The victim got out of the bathtub, got dressed, and went back out

to the room where the fighting continued. The Appellant punched

the victim in her eye and her jaw. The victim went back into the

bathroom and got into the tub a second time. During this second

encounter in the bathroom, the Appellant held the victim by the

throat underwater and would not let go. The victim was unable to

breath and blacked out. After this, the victim messaged her

mother to call the police. The victim’s mother called the front

desk and the front desk attendant went and knocked on the room

where the victim and Appellant were. Once the victim answered

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the door, she left the hotel and walked to her sister’s place. In

the morning, the victim woke up and called the police. She went

down to the police station and took some pictures. Finally, the

victim testified that she did not want to go to the hospital because

she was embarrassed and had lasting headaches due to her

injuries sustained.

Police Officer Dominic Payne, a patrolman with the Swatara

Township Police Department, was dispatched on June 10, 2018[,]

to [interview] the victim. When Officer Payne first arrived, he

observed injuries to the victim’s face, arm, and neck and back

area. He also took follow up pictures of the incident. The victim’s

mother also briefly testified that she got a text to call the cops and

that her daughter sounded upset. Finally, the Commonwealth

briefly introduced the testimony of the victim’s niece who testified

that she was about to go pick up the victim from the hotel but the

victim was already at her house. She testified that the victim

looked bruised and generally described the injuries that she saw.

The [d]efense offered the testimony of the front desk attendant

at the Red Roof Inn, Shawn Slaughter. Mr. Slaughter testified

that he received a call and went to knock on the door. When he

knocked on the door, Mr. Slaughter testified that the victim told

him that everything was OK and that he could not see any injuries

or tell if the victim was crying. He also testified that she shut the

door and did not leave. On cross-examination, Mr. Slaughter

indicated that he was convicted and found guilty of a prior

burglary. The Appellant also testified on his own behalf. He

described how he and the victim met on Facebook and generally

what he did on the day of the incident. The Appellant testified

that the victim alleges, at some point, that he cheated on her and

an argument ensues and that he planned on ending the

relationship. The Appellant also testified that the victim tried to

grab the mounted television and that he had to hold her back.

Furthermore, the Appellant testified that the victim broke the

dresser and kept hitting herself with the dresser drawer. Next,

the Appellant testified that he broke through the bathroom door

and found the victim sitting in the tub with the toilet lid on her

lap. The Appellant testified that when he reached for the toilet lid,

it slipped and hit the victim on the chin.

Trial Court Opinion, 10/07/19, at 2-4 (record citations omitted).

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After hearing the evidence, the jury convicted Appellant of the charges.

On June 24, 2019, following receipt of a pre-sentence investigation report, the

trial court sentenced Appellant. On July 5, 2019, Appellant filed a post-

sentence motion to modify his sentence. The trial court denied the motion on

July 22, 2019. The instant timely appeal followed.4

Preliminarily, we note when counsel files a petition to withdraw and

accompanying Anders brief, we must first examine the request to withdraw

before addressing any of the substantive issues raised on appeal. See

Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). Here,

our review of the record reveals counsel has substantially complied with the

requirements for withdrawal outlined in Anders and its progeny.

Specifically, counsel requested permission to withdraw based upon her

determination the appeal is “wholly frivolous and without merit,” Application

for Leave to Withdraw as Counsel, 3/10/20, at 2, filed an Anders brief

pursuant to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361

(Pa. 2009), furnished a copy of the Anders brief to Appellant and advised him

of his right to retain new counsel or proceed pro se.5 See Commonwealth

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

____________________________________________

4In response to the trial court’s order, and after requesting and receiving an

extension of time, Appellant filed a timely Rule 1925(b) statement on

September 13, 2019. On October 7, 2019, the trial court issued an opinion.

5 See Application for Leave to Withdraw as Counsel, 3/10/20, at 2-3.

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our review of the record reveals no correspondence from Appellant responding

to the Anders brief. Accordingly, we will proceed to examine the issues

counsel identified in the Anders brief, and then conduct “a full examination

of all the proceedings, to decide whether the case is wholly frivolous.”

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 2018) (en

banc).6

First, Appellant challenges the weight of the evidence. See Anders

Brief at 18-19. However, as counsel correctly notes, such a claim is wholly

frivolous because Appellant waived it. Id.

[A] challenge to the weight of the evidence must be preserved

either in a post-sentence motion, by a written motion before

sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607(A)(1)-

(3). “The purpose of this rule is to make it clear that a challenge

to the weight of the evidence must be raised with the trial judge

or it will be waived.” Comment to Pa.R.Crim.P. 607. If an

appellant never gives the trial court the opportunity to provide

relief, then there is no discretionary act that this Court can review.

Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa. Super.

2014).

Commonwealth v. Jones, 191 A.3d 830, 834-835 (Pa. Super. 2018)

(footnotes omitted). Further, a party cannot raise an issue for the first time

in a Rule 1925(b) statement. Commonwealth v. Coleman, 19 A.3d 1111,

1118 (Pa. Super. 2011) (issues raised for first time in Rule 1925(b) statement

are waived).

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6 See also Commonwealth v. Dempster, 187 A.3d 266 (Pa. Super. 2018)

(en banc).

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Here, Appellant did not raise the claim in his post-sentence motion or at

sentencing. See Motion to Modify Sentence, 7/05/19, at 2-3. Rather, he

raised the issue for the first time in his Rule 1925(b) statement. Concise

Statement of Errors Complained of on Appeal Pursuant to Appellate Rule of

Procedure 1925(b), 9/13/19, at unnumbered page 2 Accordingly, we conclude

Appellant waived his weight of the evidence claim for failure to raise the issue

with the trial court, and we need not address it further.

Second, Appellant contends the evidence was insufficient to support his

conviction for strangulation. See Anders Brief, at 19-25. Specifically, he

claims the Commonwealth presented insufficient evidence to establish that he

intentionally or knowingly impeded the breathing of the victim. See id., at 22.

Our standard of review of a sufficiency claim is well settled:

Our standard for evaluating sufficiency of the evidence is whether

the evidence, viewed in the light most favorable to the

Commonwealth [as verdict winner], is sufficient to enable a

reasonable [factfinder] to find every element of the crime beyond

a reasonable doubt. [T]he entire trial record must be evaluated

and all evidence actually received must be considered, whether or

not the trial court's rulings thereon were correct. Moreover, [t]he

Commonwealth may sustain its burden of proving every element

of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence. Finally, the trier of fact, while passing

upon the credibility of witnesses and the weight to be afforded the

evidence produced, is free to believe all, part or none of the

evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted).

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Here, as counsel correctly notes in the Anders brief, the offense of

strangulation is a relatively new one, which took effect on December 27, 2016.

Since that date, this Court has addressed the issue of the sufficiency of the

evidence for strangulation in three non-precedential memoranda,

Commonwealth v. Frasier, 1453 MDA 2019 (Pa. Super. Mar. 27, 2020);

Commonwealth v. Heinold, 288 WDA 2019 (Pa. Super. Dec. 12, 2019), and

Commonwealth v. Newfield, 3353 EDA 2018 (Pa. Super. May 10, 2019).

While this dearth of precedent allows for more room to argue the point, we

ultimately agree with counsel that a claim that the evidence in this case was

insufficient is wholly frivolous.

Appellant was guilty of strangulation if he “knowingly or intentionally

impede[d] the breathing or circulation of blood of another person by …

applying pressure to the throat or neck." 18 Pa.C.S.A. 2718. Here, the victim

testified to at least three separate incidents where Appellant applied pressure

to her neck. First, she stated that after Appellant struck her jaw, he grabbed

her neck and “choked” her. See N.T., Jury Trial, 5/6-8, 2019, at 67.

After that struggle ended, the victim took a bath. Appellant broke into

the bathroom, grabbed the victim by her throat again, and held her face

underwater. See id., at 72. As he grabbed her neck, Appellant told the victim

that he would kill her. See id., at 74. Once again, Appellant stopped himself

before killing the victim and walked out of the bathroom.

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However, he subsequently returned to the bathroom and grabbed the

victim by her throat again. See id., at 79. And once again, he held her head

under the water. See id. The victim could not breathe. See id. Eventually,

she passed out. See id. When she awoke, Appellant was no longer in the

bathroom. See id.

The Commonwealth presented pictures of the victim's injuries from the

next day. In particular, the Commonwealth presented a picture that showed

bruising of the victim’s neck from her chin to her collarbone. See id., at 94.

If believed, this evidence was certainly sufficient to establish that

Appellant intentionally impeded the victim’s breathing by applying pressure to

her neck. Appellant grabbed her by the neck multiple times, threatened to kill

her, and applied enough pressure to leave her neck severely bruised. The jury

was entitled to infer that Appellant intended the pressure to the victim’s neck

to impede her breathing.

We agree with counsel's determination that the issues presented on

appeal are frivolous. Further, our review of the record reveals no other, non-

frivolous issues that Appellant could raise.

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Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2020

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