J. S71014/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

OLIVAR GONZALEZ-IRIARTE, : No. 94 WDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, December 18, 2014,

in the Court of Common Pleas of McKean County

Criminal Division at No. CP-42-CR-0000272-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 1, 2016

Olivar Gonzalez-Iriarte appeals from the December 18, 2014 judgment 

of sentence following his conviction of aggravated assault, endangering the 

welfare of children, simple assault, and recklessly endangering another 

person (“REAP”).1 The trial court appointed Douglas J. Garber, Esq., as 

appellant’s counsel for both the trial and his appeal. Attorney Garber filed a 

petition to withdraw on June 2, 2015, alleging that the appeal is frivolous, 

accompanied by an Anders brief.2 We will grant counsel’s withdrawal 

petition and affirm appellant’s judgment of sentence.

 

1 18 Pa.C.S.A. §§ 2702, 4304, 2701, and 2705, respectively.

2 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).
J. S71014/15

- 2 -

This case concerns injuries sustained by J.D., a two-year-old child.3 

On the morning of March 25, 2014, Daniel Herbert,4the victim’s 

grandfather, drove Amanda Diaz-Polo, the victim’s mother and appellant’s 

girlfriend, to work.5 (Id. at 35.) Herbert, suspecting that appellant may be 

abusing the victim, activated the recording device on his cell phone and 

placed his cell phone under the couch in the living room. (Id. at 31.) Some 

30-45 minutes later, Herbert returned home and checked on the victim.6 

(Id. at 39.) Herbert found the victim lying in bed staring at the ceiling. 

(Id.) Herbert took the victim with him to the living room, so that Herbert 

could listen to the recording. (Id. at 37.)

After taking the victim to the couch, Herbert noticed bruising on the 

victim, and he noticed that the victim’s eyes were rolling toward the back of 

his head. (Id.) After listening to an excerpt of the recording, which Herbert 

described as “somebody gasping for their life,” Herbert took the victim to the 

emergency room at Bradford Regional Medical Center. (Id. at 37, 40.) 

 

3

It is common practice in this court to identify minors by their initials.

4 Although Daniel Herbert identified himself as such at trial and at the 

suppression hearing, he was formerly known as Daniel Tucker. The witness 

claims that he “divested” the name “Tucker.” (Notes of testimony, 11/18/14 

at 48.)

5 Appellant is not the victim’s father.

6 Herbert moved in with Diaz-Polo, her two children, and appellant in early 

March 2014. (Id. at 27-28.)
J. S71014/15

- 3 -

Appellant and the victim’s four-year-old sister accompanied Herbert and the 

victim to the emergency room. (Id.) 

McKean County Children and Youth Services (“CYS”) was called to the 

hospital for a possible case of child abuse. (Id. at 63.) Amanda Crowe of 

CYS responded to the call, and photographed bruises on the victim’s head, 

back, feet, neck, chin, legs, face, and stomach. (Id. at 64-66.) The victim 

was diagnosed with blunt force trauma to the abdomen and a concussion. 

(Id. at 83.) It was also determined that the victim sustained a broken foot 

that was starting to heal. (Id.)

The Bradford Police arrested appellant and charged him with 

aggravated assault, simple assault, endangering the welfare of children, and 

REAP. Appellant filed a motion to suppress the recording made by Herbert, 

which the trial court denied on August 8, 2014. A trial by jury was held on 

November 18, 2014, and the jury convicted appellant on all counts. The 

trial court sentenced appellant on December 18, 2014, to an aggregate 

sentence of no less than 50 months’ imprisonment and no more than 

156 months’ imprisonment, with credit for time served. 

On January 12, 2015, appellant filed a notice of appeal. The trial court 

ordered appellant to produce a concise statement of errors complained of on 

appeal on January 23, 2015, pursuant to Pa.R.A.P. 1925(b). On April 24, 

2015, Attorney Garber notified the trial court of his intention to file an 
J. S71014/15

- 4 -

Anders brief. Attorney Garber filed his petition to withdraw and Anders

brief with this court on June 2, 2015. 

A request by appointed counsel to withdraw pursuant 

to Anders and Santiago gives rise to certain 

requirements and obligations, for both appointed 

counsel and this Court. Commonwealth v. 

Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 

2015).

These requirements and the significant 

protection they provide to an Anders

appellant arise because a criminal 

defendant has a constitutional right to a 

direct appeal and to counsel on that 

appeal. Commonwealth v. Woods, 

939 A.2d 896, 898 (Pa.Super. 2007). 

This Court has summarized these 

requirements as follows:

Direct appeal counsel seeking 

to withdraw under Anders

must file a petition averring 

that, after a conscientious 

examination of the record, 

counsel finds the appeal to 

be wholly frivolous. Counsel 

must also file an Anders

brief setting forth issues that 

might arguably support the 

appeal along with any other 

issues necessary for the 

effective appellate 

presentation thereof.

Anders counsel must also 

provide a copy of the Anders

petition and brief to the 

appellant, advising the 

appellant of the right to 

retain new counsel, proceed 

pro se or raise additional 
J. S71014/15

- 5 -

points worthy of the Court’s 

attention.

Woods, 939 A.2d at 898 (citations 

omitted).

There are also requirements as to the 

precise content of an Anders brief:

The Anders brief that 

accompanies court-appointed 

counsel’s petition to 

withdraw . . . 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.

Santiago, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed 

counsel has met these obligations, it is then our 

responsibility “to make a full examination of the 

proceedings and make an independent judgment to 

decide whether the appeal is in fact wholly frivolous.” 

Id. at 1248. In so doing, we review not only the 

issues identified by appointed counsel in the Anders

brief, but examine all of the proceedings to “make 

certain that appointed counsel has not overlooked 
J. S71014/15

- 6 -

the existence of potentially non-frivolous issues.” 

Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Attorney Garber’s application to withdraw, supporting 

documentation, and Anders brief reveals that he has complied with all of 

the foregoing requirements. We note that counsel also furnished a copy of 

the brief to appellant; advised him of his right to retain new counsel, 

proceed pro se, or raise any additional points that he deems worthy of this 

court’s attention; and attached 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) (citation omitted). See Commonwealth v. 

Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in 

Santiago set forth the new requirements for an Anders brief, which are 

quoted above, the holding did not abrogate the notice requirements set forth 

in Millisock that remain binding legal precedent.”). As Attorney Garber has 

complied with all of the requirements set forth above, we conclude that 

counsel has satisfied the procedural requirements of Anders.

Once counsel has met his obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 

proceedings and make an independent judgment to decide whether the 

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, 

we now turn to the merits of appellant’s appeal.
J. S71014/15

- 7 -

Appellant’s sole issue on appeal is whether the Commonwealth 

presented sufficient evidence to warrant convictions for aggravated assault, 

endangering the welfare of children, simple assault, and REAP. 

In reviewing the sufficiency of the evidence, 

we view all evidence admitted at trial in the light 

most favorable to the Commonwealth, as verdict 

winner, to see whether there is sufficient evidence to 

enable [the fact-finder] to find every element of the 

crime beyond a reasonable doubt. This standard is 

equally applicable to cases where the evidence is 

circumstantial rather than direct so long as the 

combination of the evidence links the accused to a 

crime beyond a reasonable doubt. Although a 

conviction must be based on “more than mere 

suspicion or conjecture, the Commonwealth need not 

establish guilt to a mathematical certainty.”

Moreover, when reviewing the sufficiency of 

the evidence, the Court may not substitute its 

judgment for that of the fact finder; if the record 

contains support for the convictions, they may not 

be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations 

omitted).

Moreover, when applying the above test, the 

entire record must be evaluated and all evidence 

actually received must be considered. Finally, the 

finder of fact, while passing upon the credibility of 

the witnesses and the weight of the evidence 

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

evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011) 

(citations omitted); appeal dismissed, 54 A.3d 22 (Pa. 2012).
J. S71014/15

- 8 -

We first review appellant’s aggravated assault conviction. The statute 

defines aggravated assault as when a person “attempts to cause or 

intentionally, knowingly or recklessly causes bodily injury to a child less than 

six years of age, by a person 18 years of age or older.” 18 Pa.C.S.A. 

§ 2702(a)(8). 

The Commonwealth introduced photographic evidence of the victim’s 

injuries taken by Amanda Crowe, a CYS employee. (Notes of testimony, 

11/18/14 at 63.) Crowe took the photographs as part of her response to a 

report of possible child abuse. (Id.) According to Crowe’s testimony, the 

photographs depicted bruising on the victim’s head, back, feet, neck, chin, 

legs, face, and stomach. (Id. at 64-66.) The jury also heard testimony 

from Diaz-Polo and Herbert indicating that when Diaz-Polo and Herbert left 

the house on the morning of March 25, 2014, the victim did not have any 

visible injuries. (Id. at 11; 34.) Both Diaz-Polo and Herbert testified that, 

upon leaving the house, appellant was the only adult in the house with the 

victim and the victim’s four-year-old sister. The Commonwealth also played 

Herbert’s tape recording of appellant’s interaction with the victim. Herbert 

described the sounds heard on the tape as “more than cries. It sounded like 

somebody gasping for their life.” (Id. at 37.) Through the testimony of 

Crowe, Diaz-Polo, and Herbert, the Commonwealth sufficiently proved 

beyond a reasonable doubt that appellant caused bodily injury to the victim. 

Due to the fact that appellant was over 18 years of age and the victim was 
J. S71014/15

- 9 -

two years old at the time of the assault, the Commonwealth presented 

sufficient evidence to warrant a conviction of aggravated assault. 

We next review the sufficiency of the evidence of appellant’s conviction 

of endangering the welfare of children. Endangering the welfare of children 

is defined as, “[a] parent, guardian, or other person supervising the welfare 

of a child under 18 years of age . . . commits an offense if he knowingly 

endangers the welfare of the child by violating a duty of care, protection, or 

support.” 18 Pa.C.S.A. § 4304(a)(1). This court established a three-part 

test for determining whether the elements of endangering the welfare of 

children have been met:

(1) the accused was aware of his duty to protect the 

child; (2) the accused was aware that the child was 

in circumstances that could threaten the child’s 

physical or psychological welfare; and (3) the 

accused has either failed to act or has taken action 

so lame or meager that such actions cannot 

reasonably be expected to protect the child’s 

welfare.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations 

omitted).

In the instant case, the Commonwealth proved all three elements of 

endangering the welfare of children beyond a reasonable doubt. The record 

indicates that appellant was the only adult present in the home at the time 

the victim was assaulted and appellant was aware of this fact. The record 

further indicates that appellant violated his duty to the victim when appellant 

assaulted the victim, thereby placing the victim in circumstances that could 
J. S71014/15

- 10 -

endanger his physical and psychological wellbeing. See id. at 199. 

Therefore, the Commonwealth has sufficiently proven, beyond a reasonable 

doubt, the elements required to warrant a conviction of endangering the 

welfare of children. 

A review of the Commonwealth’s evidence for simple assault and REAP 

is not necessary, as both offenses are lesser-included offenses of aggravated 

assault. Commonwealth v. Brown, 605 A.2d 429, 432 (Pa.Super. 1992) 

(finding that the elements of simple assault are met with a conviction for 

aggravated assault); Commonwealth v. Smith, 956 A.2d 1029, 1036 

(Pa.Super. 2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010) 

(“Reckless endangerment is a lesser included offense of aggravated assault 

and where the evidence is sufficient to support a claim of aggravated assault 

it is also sufficient to support a claim of recklessly endangering another 

person.”), quoting Commonwealth v. Thompson, 739 A.2d 1023, 

1028 n.13 (Pa. 1999), cert. denied, 531 U.S. 829 (2000). 

In sum, we find this appeal to be wholly frivolous, and our 

independent review of the record has not disclosed any other potentially 

non-frivolous issues. Consequently, we grant counsel’s petition to withdraw, 

and we affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.
J. S71014/15

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/2016