Commonwealth v. Weitzel

304 A.3d 1219

COMMONWEALTH of Pennsylvania v. Ezra WEITZEL, Appellant

No. 555 MDA 2023

Superior Court of Pennsylvania.

Submitted: September 18, 2023

Filed: November 6, 2023

Ezra Weitzel, appellant, pro se.

Alissa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J. ^*

OPINION BY COLINS, J.:

Appellant, Ezra Weitzel, appeals from the aggregate judgment of sentence of 7 years and 4 months to 17 years’ incarceration imposed on him after he was convicted by a jury of strangulation, simple assault, and terroristic threats. ¹ Appellant's appellate counsel has filed a petition to withdraw and an Anders² brief, stating that the appeal is wholly frivolous. After careful review, we grant counsel's petition to withdraw and affirm.

Appellant was arrested and charged with the above offenses for choking his 62-year-old mother (Victim) and telling her that he would kill her. On January 25, 2023, those charges were tried to a jury. Two witnesses, Victim and the police officer to whom she reported the attack, testified at trial.

Victim testified that on the morning of October 19, 2021, Appellant, who lived in Victim's house with Victim and one of her daughters, became angry at Victim and gripped her around the neck with both of his hands. N.T. Trial at 18-22, 29. Victim testified that Appellant squeezed her neck and that she had difficulty breathing when he was squeezing her neck. Id. at 20-21, 29-30, 33. She also testified that while Appellant was choking her, he put his head up against her ear and said to her either "I want to kill you" or "I am going to kill you." Id. at 20-23, 31-33. Victim testified that after she broke free of Appellant, she left the house, went to the police station, and reported the attack. Id. at 23-24.

The police officer testified that Victim reported the attack to him at the police station on October 19, 2021 and that she was visibly upset and had redness around her neck. N.T. Trial at 34-35. The officer testified that after he arrested Appellant, he took photographs of Victim's neck. Id. at 37-38. The photographs taken by the officer and photographs of Victim's neck taken by Victim's daughter after the attack were introduced in evidence. Id. at 24-27, 38. Appellant did not testify or introduce any evidence. Id. at 41-44.

The jury found Appellant guilty of all three charges. N.T. Trial at 66. On March 1, 2023, the trial court sentenced Appellant to an aggregate term of imprisonment of 7 years and 4 months to 17 years’ incarceration consisting of consecutive terms of 5 to 10 years for the strangulation conviction, 1 to 2 years for simple assault, and 16 months to 5 years for terroristic threats. N.T. Sentencing at 9-11; Sentencing Orders. Appellant filed a post-sentence motion in which he argued that the evidence was insufficient to support the convictions, sought a new trial on weight of the evidence grounds, and argued that the consecutive sentences were excessive. On March 16, 2023, the trial court denied Appellant's post-sentence motion.

This timely appeal followed. On July 10, 2023, appellate counsel filed an Anders brief and petition to withdraw as counsel. In his Anders brief, appellate counsel raises the issues of whether the evidence was sufficient to prove the offenses of strangulation, simple assault, and terroristic threats and whether the trial court erred in holding that the verdict was not against the weight of the evidence. Anders Brief at 11, 13-21. Appellant has not filed any response to counsel's petition to withdraw or Anders brief. The Commonwealth filed a brief in support of affirmance.

Before this Court can consider the merits of this appeal, we must first determine whether appellate counsel has satisfied all of the requirements that court-appointed counsel must meet before leave to withdraw may be granted. Commonwealth v. Dempster , 187 A.3d 266, 270 (Pa. Super. 2018) ( en banc ); Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) ( en banc ).

To withdraw from representing a convicted defendant on direct appeal on the basis that the appeal is frivolous, counsel must (1) petition the court for leave to withdraw stating that he has made a conscientious examination of the record and has determined that the appeal would be frivolous; (2) file a sufficient Anders brief; and (3) provide a copy of the Anders brief to the defendant and advise the defendant of his right to retain new counsel or proceed pro se and to raise any additional points that he deems worthy of the court's attention. Commonwealth v. Bynum-Hamilton , 135 A.3d 179, 183 (Pa. Super. 2016) ; Goodwin , 928 A.2d at 290. An Anders brief must comply with all the following requirements:

[T]he Anders brief ... 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.

Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349, 361 (2009) ; see also Dempster , 187 A.3d at 270. If 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 wholly frivolous. Dempster , 187 A.3d at 271 ; Commonwealth v. Zeigler , 112 A.3d 656, 659-60 (Pa. Super. 2015).

Appellate counsel states in his petition to withdraw that he has reviewed the entire record and determined that there are no non-frivolous grounds for the appeal. Appellate counsel's July 10, 2023 letter to Appellant provided a copy of the Anders brief to Appellant and advised him of his right either to retain new counsel or to proceed pro se on appeal and to raise any points he deems worthy of this Court's attention. Further, appellate counsel's Anders brief provides an adequate procedural and factual summary of the case and cites and discusses the applicable law on which counsel bases his conclusion that there are no non-frivolous issues that he can raise on Appellant's behalf. Appellate counsel has thus filed a sufficient Anders brief and has fully complied with the procedural requirements for withdrawal as counsel in this appeal.

We therefore proceed to conduct an independent review to ascertain whether the appeal is indeed wholly frivolous. This Court first considers the issues raised by counsel in the Anders brief and determines whether they are in fact frivolous. Commonwealth v. Yorgey , 188 A.3d 1190, 1197 (Pa. Super. 2018) ( en banc ); Dempster , 187 A.3d at 272. In addition, if the Court finds all of those issues frivolous, this Court conducts a review of the record to ascertain if, on its face, there are other issues of arguable merit overlooked by counsel. Yorgey , 188 A.3d at 1196-97 ; Dempster , 187 A.3d at 271-72.

The standard of review that this Court applies in considering Appellant's sufficiency of the evidence issues is well-settled:

When 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 accord 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. As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Steele , 234 A.3d 840, 845 (Pa. Super. 2020) (quoting Commonwealth v. Colon-Plaza , 136 A.3d 521 (Pa. Super. 2016) ) (citations omitted, brackets in original). We conclude that all of Appellant's sufficiency of the evidence claims are frivolous.

The evidence at trial was sufficient to support Appellant's strangulation conviction. Evidence that the defendant knowingly or intentionally impeded the breathing of another person by applying pressure to the throat or neck is sufficient to prove the offense of strangulation. 18 Pa.C.S. § 2718(a)(1) ; Commonwealth v. Horlick , 296 A.3d 60, 63 (Pa. Super. 2023). Causing injury to the victim is not an element of the crime of strangulation. 18 Pa.C.S. § 2718(b) ; Commonwealth v. Lowmaster , No. 221 WDA 2022, slip op. at 6, 2023 WL 3675822 (Pa. Super. March 14, 2023) (unpublished memorandum); Commonwealth v. Vaughn , No. 2174 EDA 2019, slip op. at 8, 2021 WL 1087303 (Pa. Super. March 22, 2021) (unpublished memorandum).

Victim testified that Appellant squeezed her neck with both of his hands, causing her to have difficulty breathing, and there was evidence that Appellant pressed sufficiently hard on her neck to leave red marks. N.T. Trial at 20-22, 25-27, 29-30, 33, 35. Victim's testimony also showed that Appellant intended to impede her breathing, as she testified that Appellant expressed a desire or intent to kill her while he was choking her. Id. at 20-23, 31-33. Although Victim testified that she was still able to breathe with difficulty while Appellant was choking her, id. at 30-31, that does not make her testimony insufficient to prove the elements of strangulation. The Crimes Code does not require that the victim be unable to breathe to prove strangulation or require proof of a particular level of obstruction of the victim's breathing to prove strangulation. 18 Pa.C.S. § 2718(a)(1) ; Horlick , 296 A.3d at 63....