June 27, 2013
CINDY CAMPBELL Appellee
GEORGE M. MATTHEWS Appellant CINDY CAMPBELL Appellee
GEORGE M. MATTHEWS Appellant CINDY CAMPBELL Appellee
GEORGE M. MATTHEWS Appellant
Appeal from the Judgment of Sentence June 28, 2012 In the Court of Common Pleas of Delaware County Civil Division at No(s): 42-12, 51-12
BEFORE: GANTMAN, J., MUNDY, J., and COLVILLE, J. [*]
Appellant, George Matthews, appeals from the June 28, 2012 aggregate judgment of sentence of 12 months' imprisonment imposed after he was found guilty of ten counts of indirect criminal contempt for violating a temporary protection from abuse order (PFA), arising from ten telephone calls Appellant placed to PFA petitioner, Cindy Campbell, from the Delaware County correctional facility. Contemporaneously with the filing of this appeal, counsel is requesting leave to withdraw in accordance with Anders v. California, 386 U.S. 738 (1967), and its progeny. After careful review, we grant counsel's petition to withdraw and affirm the judgment of sentence.
The relevant facts and procedural history of this case may be summarized as follows. On December 5, 2011, a temporary PFA order was entered following an altercation between Appellant and Campbell at their home. Said order stated Appellant "shall not abuse, harass, stalk or threaten" Campbell, and that Appellant "shall not contact" Campbell. Temporary Protection From Abuse Order, 12/5/11. Appellant subsequently pled guilty to criminal charges stemming from the December 5, 2011 incident and was sentenced to 11½ to 23 months' imprisonment.
Prior to sentencing, on May 24, 25, 28, 29, and June 1, and 4, 2012, Appellant placed several collect telephone calls to Campbell from the Delaware County Prison. The aforementioned phone calls were placed through a third-party credit company, and Campbell refused to accept them. Campbell reported the contact to police, and Appellant was charged, in three complaints, with ten counts of indirect criminal contempt.
On June 28, 2012, a hearing was held on the indirect criminal contempt charges at which both Appellant and Campbell testified to their version of events surrounding the phone calls. At the close of the hearing the trial court found Appellant guilty of all the charges and sentenced Appellant to an aggregate term of 12 months' imprisonment. No post- sentence motions were filed.
On July 27, 2012, Appellant filed three timely notices of appeal. The trial court did not order Appellant to file a statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). Nevertheless, on August 16 2012, counsel for Appellant filed a statement of intent to file an Anders brief in lieu of filing a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4). On October 4, 2012, the trial court filed its 1925(a) opinion stating that "[a]fter reviewing the record in this matter and in light of counsel's statement of his intent to file an Anders brief[, ] further exposition regarding [Appellant]'s appeal is unnecessary." Trial Court Opinion, 10/4/12, at 1.
In his Anders brief, counsel raises the following issue on Appellant's behalf.
Whether the evidence was insufficient to find [Appellant] in indirect criminal contempt where the Complainant failed to establish that he committed any of the acts that violated the Order at issue herein?
Anders Brief at 3.
Prior to addressing the merits of Appellant's claims, we must first consider counsel's request 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. Titus, 816 A.2d 251, 254 (Pa. Super. 2003) (citation omitted). For cases where the briefing notice was issued after August 25, 2009, as is the case here, an Anders brief shall comply with the requirements set forth by our Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in 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.
Id. at 361. Additionally, counsel must furnish the appellant with a copy of the brief, advise him in writing of his right to retain new counsel or proceed pro se, and attach to the Anders petition a copy of the letter sent to appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (holding that, "[w]hile the Supreme Court in Santiago set forth the new requirements for an Anders brief, … the holding did not abrogate the notice requirements set forth in Millisock that remain binding legal precedent") (footnote omitted). "After counsel has satisfied these requirements, we must conduct our own review of the trial court proceedings and independently determine whether the appeal is wholly frivolous." Titus, supra (citation omitted).
In the instant matter, we conclude that counsel's Anders brief complies with the requirements of Santiago. First, counsel has provided a procedural and factual summary of the case with references to the record. Second, counsel advances relevant portions of the record that arguably support Appellant's claims. Third, counsel states in his conclusion that the appeal is nonetheless frivolous. Lastly, counsel has complied with the requirements set forth in Millisock. As a result, we proceed to conduct an independent review to ascertain if the appeal is indeed wholly frivolous.
Instantly, Appellant challenges the sufficiency of the evidence to convict him of indirect criminal contempt for violating the temporary PFA order prohibiting him from contacting Campbell. Anders Brief at 6.
However, the basis of Appellant's challenge is "whether the [trial court] should have believed [Appellant's] testimony over that of [Campbell]'s." Id. A challenge that the testimony of witnesses was not credible implicates weight, rather than sufficiency of the evidence. See Commonwealth v. Montalvo, 956 A.2d 926, 932 n.6 (Pa. 2008) (holding that a claim that the evidence is insufficient because the witness was not credible "challenges the weight, and not the sufficiency, of the evidence"). Accordingly, we review Appellant's claim as a challenge to the weight of the evidence.
We review claims that the verdict was against the weight of the evidence for an abuse of discretion. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011). When applying this standard, we are mindful that "the initial determination regarding the weight of the evidence was for the factfinder." Id. (citation omitted). "The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses." Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted), cert. denied, Champney v. Pennsylvania, 542 U.S. 939 (2004). Further, we must not reverse a verdict based on a weight claim unless the "verdict was so contrary to the evidence as to shock one's sense of justice." Kane, supra at 333 (citation omitted).
Pennsylvania Rule of Criminal Procedure 607 provides, in pertinent part, that a claim that the verdict was against the weight of the evidence "shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion." Pa.R.Crim.P. 607(A). "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." Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 2006).
Instantly, Appellant has failed to preserve a weight of the evidence claim. A review of the certified record and transcripts reveal that at no point prior to, or at sentencing, was a challenge to the weight of the evidence raised. Accordingly, Appellant's challenge to the weight of the evidence is waived. Therefore, we affirm Appellant's June 28, 2012 judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Colville concurs in the result.