J-S04032-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SANTIAGO SALGADO-OCHOA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 165 EDA 2023

Appeal from the Judgment of Sentence Entered November 18, 2022

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

No(s): CP-15-CR-0000450-2021

BEFORE: BOWES, J., STABILE, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED APRIL 23, 2024

Santiago Salgado-Ochoa (“Salgado-Ochoa”) appeals from the judgment 

of sentence imposed following his conviction for two counts of summary 

harassment.

1

 Additionally, Salgado-Ochoa’s counsel has filed an application 

to withdraw and an accompanying brief pursuant to Anders v. California, 

386 U.S. 738 (1967). After careful review, we grant counsel’s application to 

withdraw and affirm Salgado-Ochoa’s judgment of sentence.

In 2020, the minor victim, Y.V. (“Y.V.”), reported that her aunt’s 

boyfriend, Salgado-Ochoa, had sexually assaulted her on two occasions. In 

January 2021, police charged Salgado-Ochoa with multiple felony and 

misdemeanor offenses as well as the two counts of summary harassment. 

The matter proceeded to a simultaneous jury/non-jury trial in March 2022, at 

which the Commonwealth presented several witnesses, including Y.V., who

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1 18 Pa.C.S.A § 2709(a)(1).
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testified that in January of 2019, when she was fifteen years old, SalgadoOchoa began rubbing her back as she was bent over picking up his infant child, 

to which her aunt had just given birth. N.T., 3/9/22, at 49, 52. According to 

Y.V., Salgado-Ochoa then grabbed both of her breasts, over her clothing, and 

fondled her. Id. at 52. Y.V. stated that she was afraid and had no idea what 

to do. Id.

Y.V. also testified that in June of 2019, Salgado-Ochoa sat next to her 

on a couch, blew on her neck, touched and squeezed her sides, placed his 

hand under her sweater, and flicked her nipples. Id. at 58-60. Then, Y.V.

testified that Salgado-Ochoa reached down and tried to unzip her jeans and

attempted to place his hand down the front of her pants. Id. at 59-61. After

being unable to undo her pants, Salgado-Ochoa began rubbing Y.V.’s vagina 

over them. Id.

Salgado-Ochoa testified at trial and attempted to minimize or deny his 

conduct. He claimed that a few days after his daughter’s birth, he noticed

Y.V. holding the infant but not supporting her head. See N.T., 3/11/22, at 

52. He stated that he grabbed the infant from Y.V. and said, “this is how you 

do it right[.]” Id. Salgado-Ochoa went on to say that “[p]erhaps I could have 

. . . touched her breast, but . . . [i]t wouldn’t have been with bad intention. I 

was just really trying to take my daughter away from her.” Id. SalgadoOchoa expressly denied Y.V.’s allegations of sexual assault. Id. at 55-57.

At the conclusion of the simultaneous jury/non trial, the-jury acquitted 

Salgado-Ochoa of all of the felony and misdemeanor charges and the trial 
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court then convicted Salgado-Ochoa of two counts of summary harassment.2

On November 18, 2022, the trial court imposed an aggregate term of two to 

six months imprisonment to be served concurrently with the sentence imposed 

in another criminal case against Salgado-Ochoa.

3

Salgado-Ochoa filed a timely motion for post-sentence relief which the 

trial court denied. Salgado-Ochoa timely filed a notice of appeal. The trial 

court ordered Salgado-Ochoa to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). After multiple extensions and the 

appointment of new counsel, counsel submitted a statement of intent to file 

an Anders brief. In this Court, counsel filed an Anders brief and an 

application to withdraw from representation. Salgado-Ochoa did not respond 

to the application to withdraw. Nor has he filed a brief with this Court.

In the Anders brief, counsel identifies the following issue for our review:

“Was sufficient evidence presented to support [Salgado-Ochoa’s] convictions 

beyond a reasonable doubt on two counts of harassment?” Anders Brief at 3

(unnecessary capitalization omitted).

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2 The maximum sentence for each of the summary harassment convictions

herein is six months’ imprisonment. The right to trial by jury attaches when 

one is accused of a crime for which the authorized penalty is more than six 

months imprisonment. See Commonwealth v. Mayberry, 327 A.2d 86, 89 

(Pa. 1974). Therefore, while felonies and misdemeanors may tried before a 

jury, summary offenses may not and instead are subject to a non-jury trial by 

a judge.

3 The other criminal case, Commonwealth v. Salgado-Ochoa, CP-15-CR1494-2021, was consolidated with the instant case for pretrial proceedings; 

however, the cases were severed prior to trial. Salgado-Ochoa is appealing 

the judgment of sentence imposed in the other criminal case at 192 EDA 2023.
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Before we assess the substance of the issues raised in counsel’s Anders

brief, we must first determine whether counsel’s request to withdraw meets 

certain procedural requirements. See Commonwealth v. Goodwin, 928 

A.2d 287, 290 (Pa. Super. 2007) (en banc). An Anders brief that 

accompanies a request 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. 

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel must 

also provide a copy of the Anders brief to the client, and a letter that advises

the client of the right to “(1) retain new counsel to pursue the appeal; (2) 

proceed pro se on appeal; or (3) raise any points that the appellant deems 

worthy of the court’s attention in addition to the points raised by counsel in 

the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa.

Super. 2014) (citation omitted). If counsel has satisfied these requirements, 

we then conduct “a full examination” of the record “to decide whether the case 

is wholly frivolous.” Commonwealth v. Dempster, 187 A.3d 266, 271 (Pa.

Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).

Here, in the Anders brief, counsel provides a procedural and factual 

history of the case, with citations to the record, discusses the issues arguably 

supporting the appeal, and explains why counsel concludes those issues are 
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frivolous. Anders Brief at 4-16. Counsel mailed a copy of the Anders brief 

to Salgado-Ochoa, and in her cover letter, she advised him that he could raise 

any additional issues before this Court pro se or with private counsel. Petition 

to Withdraw as Counsel, 12/11/23, Exhibit 3. As counsel has substantially 

complied with the requirements of Anders and Santiago, we will conduct an 

independent review to determine whether this appeal is frivolous.

The sole issue counsel identifies in the Anders brief is a challenge to 

the sufficiency of the evidence supporting Salgado-Ochoa’s harassment 

convictions. “The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to enable the 

factfinder to find every element of the crime beyond a reasonable doubt.” 

Commonwealth v. Miller, 217 A.3d 1254, 1256 (Pa. Super. 2019) (quoting 

Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa. Super. 2013)). We 

conduct this review de novo. Commonwealth v. Hall, 199 A.3d 954, 960 

(Pa. Super. 2018). The Commonwealth may sustain its burden with wholly 

circumstantial evidence, and in matters of credibility, we defer to the finder of 

fact, who was free to believe all, some, or none of the evidence. Id. So long 

as the prosecution presented some evidence of each element of the crime, we 

will not find the evidence insufficient unless it is “so weak and inconclusive 

that as a matter of law no probability of fact may be drawn from the combined 

circumstances.” Miller, 217 A.3d at 1256.
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Where a simultaneous jury/bench trial is conducted and the defendant 

is not subjected to a subsequent trial following an acquittal, the trial court is 

not bound by the jury’s credibility determinations and may make findings 

different from and inconsistent with the jury’s findings. Commonwealth v. 

Wharton, 594 A.2d 696, 699 (Pa. Super. 1991); Commonwealth v. 

Yachymiak, 505 A.2d 1024, 1027 (Pa. Super. 1986) (explaining that jury 

acquittals may not be interpreted as specific factual findings with regard to 

the evidence, as an acquittal may be nothing more than the jury’s decision to 

show lenity).

A person “commits the crime of harassment when, with intent to harass, 

annoy or alarm another, the person: strikes, shoves, kicks or otherwise 

subjects the other person to physical contact, or attempts or threatens to do 

the same[.]” 18 Pa.C.S.A. § 2709(a)(1). “An intent to harass may be inferred 

from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 

719, 721 (Pa. Super. 2013).

Counsel maintains that a sufficiency challenge would be frivolous 

because the Commonwealth presented sufficient evidence to support the 

harassment convictions. Anders Brief at 15. Counsel explains that, although 

the jury was asked to determine whether Salgado-Ochoa sexually touched 

Y.V. on two occasions, the jury was not asked to consider the separate 

question of whether Salgado-Ochoa subjected Y.V. to any physical contact 

with the intent to harass, annoy, or alarm because the offense of harassment 
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was not before the jury. Counsel indicates that the trial court may have 

determined that Y.V.’s descriptions of the incidents where Salgado-Ochoa 

rubbed her back, blew on her neck, and rubbed her sides constituted sufficient 

physical contact with the intent to harass, annoy, or alarm to find SalgadoOchoa guilty of two counts of harassment. Counsel concludes that, when 

viewing the evidence in the light most favorable to the Commonwealth, as the 

verdict winner, the evidence was sufficient to sustain Salgado-Ochoa’s 

harassment convictions.4

Here, the trial court heard testimony from Y.V. during the trial where 

she described an incident in January 2019 in which Salgado-Ochoa rubbed her 

back. See N.T., 3/9/22, at 49, 52. Y.V. further testified that, in June 2019, 

Salgado-Ochoa blew on her neck and squeezed her sides, making her

uncomfortable. Id. at 58-60. In rendering its verdict, the trial court found 

Y.V.’s testimony credible, and determined that Salgado-Ochoa subjected her 

to physical contact with the intent to harass, annoy or alarm her. N.T., 

11/28/22, at 28-29. 

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4 Counsel also attempted to challenge the harassment convictions based on

double jeopardy and collateral estoppel principles, but those principles are 

inapplicable to a simultaneous jury/bench trial where different crimes are 

decided by the jury and the judge. See Commonwealth v. Jordan, 256 

A.3d 1094 (Pa. 2021) (holding that inconsistent verdicts rendered by separate 

factfinders in a simultaneous jury and bench trial do not implicate double 

jeopardy and collateral estoppel concerns).
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Based on this record, we conclude that the Commonwealth presented 

sufficient evidence to support Salgado-Ochoa’s convictions for harassment. 

Although the Commonwealth did not present evidence of Salgado-Ochoa’s 

intent when touching Y.V. on those two occasions, the trial court was 

permitted to infer that he intended to harass her based on the totality of the 

circumstances. See Cox, 72 A.3d at 721. Thus, we conclude that any 

challenge to the sufficiency of the evidence is frivolous.

Further, our independent review of the record does not reveal any 

additional non-frivolous issues. See Dempster, 187 A.3d at 271. 

Accordingly, we grant counsel’s application to withdraw and affirm SalgadoOchoa’s judgment of sentence.

Application to withdraw granted. Judgment of sentence affirmed.

Date: 4/23/2024