Commonwealth v. Buskirk

1

COMMONWEALTH OF PENNSYLVANIA v. GARY L BUSKIRK Appellant

No. 1393 MDA 2023

No. J-S19009-24

Superior Court of Pennsylvania

August 19, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered August 30, 2023 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001284-2022

BEFORE: DUBOW, J., BECK, J., and COLINS, J. ^[*]

MEMORANDUM

DUBOW J.

Appellant Gary L. Buskirk appeals from the August 30, 2023 judgment of sentence entered by the Lackawanna County Court of Common Pleas, following his convictions for Aggravated Assault Recklessly Endangering Another Person ("REAP"), and related crimes. He also seeks a remand to address his claim of after-discovered evidence. Appellant's counsel has filed an Anders^[1] brief and a petition for leave to withdraw. After careful consideration, we grant counsel's petition for leave to withdraw, affirm Appellant's judgment of sentence, deny Appellant's application for remand based upon after-discovered evidence, but remand to the trial court solely to correct clerical errors in the sentencing order and the docket.

The relevant factual and procedural history is as follows. On the evening of May 12, 2021, after an "angry phone call" with the mother of his child regarding their child custody dispute, Appellant drove his Dodge Ram pickup truck with an attached landscaping trailer toward the house where the mother and child lived. Trial Ct. Op., 12/20/23, at 2. Near the mother and child's home, he saw John Schanewolf ("Victim"), the mother's husband, stopped at an intersection in his SUV. Appellant blocked Victim's path with his truck and said, "You're dead mother F'er, you're dead." Id. at 4.

As Victim attempted to drive his SUV around the back of Appellant's trailer, Appellant "floored his truck in reverse and rammed" Victim's vehicle, causing it to spin and eventually stop in front of Appellant's truck. Id. at 4-5. Appellant again told Victim that "he was going to die" and "rammed his truck into [Victim's] driver side door, causing the door to cave in on [Victim]" and pushed Victim's vehicle 1,024 feet down the road and into a ditch. Id. at 5. Appellant "backed up, told [Victim] again that he was dead, and floored his truck into [Victim's] vehicle one more time, pushing him another 25 feet into the woods." Id. Appellant then left the scene of the incident without rendering aid or providing his information as required by law.

While Victim was uninjured, he testified that once he got out of the SUV, he ran to a neighbor's driveway where he hid beside the garage until the police arrived. Victim described his fear as he wondered if Appellant was coming back and whether he had a gun: "I was shaking. I was nervous. I thought I was going to pass out. I don't know if I was bleeding, anything like that. I was just so overwhelmed with fear, it was ridiculous." N.T., 5/31/23, at 150.

Two eyewitnesses, Seth Frey and William Davis, who were driving on the same road, corroborated Victim's testimony, explaining that the truck repeatedly rammed Victim's SUV and pushed it down a hill and into a ditch, without any aggressive movements by the Victim's vehicle. N.T., 6/1/23, at 37-47, 55-65. Appellant testified in his defense, admitting to colliding with Victim's car but claiming that Victim was the aggressor. Id. at 90-95.

On June 1, 2023, the jury convicted Appellant of the following crimes: Aggravated Assault-Attempts to Cause Serious Bodily Injury, Terroristic Threats, Simple Assault, Recklessly Endangering Another Person ("REAP"), and Accidents Involving Damage to Attended Vehicle or Property; the trial court additionally found Appellant guilty of a summary offense of Reckless Driving.^[2]

On August 30, 2023, the court sentenced Appellant to an aggregate term of 76 to 180 months of incarceration, followed by 12 months of probation.^[3] While Appellant filed pro se post-sentence motions, the filings constituted legal nullities under Pennsylvania law, which prohibits hybrid representation. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007). The docket does not include any counseled post-sentence motions.

On September 28, 2023, Appellant filed a counseled notice of appeal, and both the trial court and Appellant complied with Pa.R.A.P. 1925. On January 19, 2024, Appellant filed in this Court a request for remand pursuant to Pa.R.Crim.P. 720(C), claiming newly discovered evidence based upon a December 21, 2023 decision in his Northampton County probation violation case, about which a parole agent testified in the instant matter.

Appellant raises the following issues on appeal:

1. Whether the sentencing court imposed an illegal sentence when Appellant was sentenced to consecutive sentences under Count 1, Aggravated Assault, and Count 4, Recklessly Endangering Another Person, when Counts 1 and 4 should have merged.

2. Whether the evidence was insufficient, as a matter of law, to sustain convictions for Aggravated Assault where the evidence failed to establish the key element of intent.

3. Whether the evidence was insufficient, as a matter of law, to sustain convictions for Recklessly Endangering Another Person where the evidence failed to establish the key element of recklessness.

4. If this Honorable Court determines sufficient evidence was presented to enable a fact-finder to find the key element of forcible compulsion, under Count 1, Aggravated Assault, whether the verdict was so against the weight of the evidence that the verdict shocks the [conscience] of one's sense of justice.

5. If this Honorable Court determines sufficient evidence was presented to enable a fact-finder to find the key element of forcible compulsion, under Count 4, Recklessly Endangering Another Person, whether the verdict was so against the weight of the evidence that the verdict shocks the [conscience] of one's sense of justice.

Anders Brief at 4-5 (suggested answers omitted). The introductory phrases for Issues 4 and 5 reference "forcible compulsion," which is not relevant to this case; we view this as a typographical error intending instead to reference the relevant challenged elements of intent and recklessness, respectively.

A.

As stated, Appellant's counsel, Jordan T. Leonard, Esq., filed an Anders brief and a petition to withdraw. "When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010). If counsel meets the requirements for withdrawal, "the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds[,] it may grant counsel's request to withdraw and dismiss the appeal[.]" Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. Super. 2018) (citation omitted).

When filing an Anders brief, 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." Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Additionally, counsel must provide the appellant with a copy of the Anders brief and petition to withdraw, as well as advise the appellant of "his right to retain new counsel, proceed pro se[,] or raise any additional points that he deems worthy of the court's attention." Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005) (citation omitted).

Upon review of the Anders brief and counsel's letter to Appellant, we conclude that Attorney Leonard complied with the requirements of Santiago and Millisock. Accordingly, we proceed to examine the proceedings and determine whether the appeal is frivolous.

B.

In his first issue, Appellant asserts that the trial court should have merged his sentences for Aggravated Assault, 18 Pa.C.S. § 2702(a)(1), and REAP, id. at § 2705. Anders Brief at 19-24. Appellant argues that REAP is a lesser included offense of Aggravated Assault and that the factual allegations in the criminal information supporting each charge were identical. Id. at 23.

While Appellant did not include his merger claim in his Rule 1925(b) statement, we nevertheless address this challenge because "claims involving merger" are non-waivable challenges to the legality of the sentence. Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014). "[O]ur standard of review is de novo and our scope of review is plenary" for claims challenging the legality of the sentence. Commonwealth v. Edwards, 256 A.3d 1130, 1136 (Pa. 2021).

In Pennsylvania, crimes merge for sentencing purposes if "the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense." 42 Pa.C.S. § 9765. Thus, a merger "analysis begins and ends with the statutory elements of each offense." Edwards, 256 A.3d at 1137.

Appellant's claim is foreclosed by the Supreme Court's decision in Edwards, which expressly held that REAP does not merge with subsection (a)(1) of Aggravated Assault because "all of the statutory elements of REAP are not contained in [A]ggravated [A]ssault[.]" Id. at 1138. Specifically, the Court explained that subsection (a)(1) of Aggravated Assault, "requires a person to cause serious bodily injury or an attempt to cause such bodily injury under circumstances manifesting extreme indifference to the value of human life" whereas "REAP, by contrast, requires a person to place another person in actual danger of death or serious bodily...