J-S08009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD KEVIN BEITZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1236 MDA 2021

Appeal from the Judgment of Sentence Entered June 11, 2018

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

No(s): CP-60-CR-0000373-2016

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BOWES, J.: FILED: MAY 12, 2022

Richard Kevin Beitz appeals nunc pro tunc from the judgment of 

sentence of one to four years of incarceration imposed following his nolo 

contendere plea to terroristic threats. Michael C. O’Donnell, Esquire has filed 

an application to withdraw and a brief pursuant to Anders v. California, 386 

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009). We affirm Appellant’s sentence and grant counsel’s application to 

withdraw. 

On August 10, 2016, Appellant, as plaintiff, attended a civil hearing in 

the Union County Courthouse before Magisterial District Court Judge Leo S. 

Armbruster. See N.T. Plea Hearing, 12/20/17, at 8. Also present was the 

defendant, Craig Bennet, and defense witnesses Trudy Laidacker, April Cole, 

and Kathleen Kennedy. See Affidavit of Probable Clause, 8/10/16, at 1. After 
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Appellant made a comment about receiving assistance from his “big fat Jew 

lawyers” and became increasingly “unhinged,” Judge Armbruster declared a 

recess so that he could secure the presence of a Sheriff’s deputy. Appellant’s 

Brief in Support of Defendant’s Omnibus Motion, 5/30/17, at Exhibit A. 

While Judge Armbruster was absent, Appellant turned his attention to 

the defendant and defense witnesses. First, Appellant placed the edge of his 

extended hand against the inside of his knee and proclaimed, “I have a fucking 

cock this fucking long and which one of you wants to suck my fucking cock?” 

N.T. Plea Hearing, 12/20/17, at 8. Appellant than asked Ms. Cole directly, 

“How about you April you fucking [w]hore? You want to suck it? I know where 

you live.” Id.; see also Affidavit of Probable Cause, 8/10/16, at 1. This 

outburst prompted the defendant to leave the room to assist in the search for 

a deputy sheriff. Id. Meanwhile, Appellant turned in his chair, looked directly 

at Ms. Laidacker and stated, “I’m going to shove this cock inside of you and 

wipe that smile off your face.” Id. Ms. Laidacker immediately exited the room

where she met with Judge Armbruster and the defendant. They agreed that 

Ms. Laidacker would not reenter the courtroom since she was in fear for her 

safety.

Judge Armbruster returned to the courtroom and asked Appellant about 

what had transpired in his absence. See Brief in Support of Defendant’s 

Omnibus Motion, 5/30/17, at Exhibit A. Appellant confirmed that he had made 

lewd statements to the female witnesses, explaining that “she was looking at 
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my big cock so she must want it.” Id. Appellant then repeated the earlier 

hand gesture, holding his hand down to his knee to describe the length of his 

penis. Id. Finally, Appellant turned to the defendant and stated: “I see what 

the fuck goes on here, you paid off the judge and now I am out my fucking 

rent and costs.” Id. Judge Armbruster held Appellant in summary direct 

contempt of court for his lewd language and demeanor pursuant to 42 Pa.C.S. 

§ 4137(a)(1). Thereafter, Appellant was also criminally charged with 

terroristic threats, harassment, disorderly conduct, and retaliation. 

Appellant filed a pretrial motion raising “double jeopardy” concerns

pursuant to United States and Pennsylvania Constitutions and arguing that 

the earlier contempt conviction barred a subsequent trial on different charges, 

since they stemmed from the same incident. See Brief in Support of 

Defendant’s Omnibus Motion, 5/30/17, at unnumbered 2. The Commonwealth 

filed a brief arguing that Appellant’s conviction for summary criminal contempt 

did not bar a subsequent prosecution for charges that arose from the same 

conduct. At the hearing, trial counsel and the prosecutor presented the court 

with legal precedent in support of their written arguments. After a brief recess 

so that the court could review the relevant precedent, the Court denied the 

motion, agreeing with the Commonwealth and finding that “the elements [of 

the offenses] are completely different.” N.T. Pre-Trial Hearing, 9/28/17, at 

12.
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On December 20, 2017, Appellant entered a negotiated nolo contendere 

plea to terroristic threats. In exchange for Appellant’s nolo plea, the 

Commonwealth nolle prossed the remaining charges. The negotiated plea 

called for a minimum sentence of one year but left the maximum term to the 

court’s discretion. Appellant also retained the right to argue for a mitigated 

range sentence. The Court accepted the plea, and deferred sentencing so that 

a presentence investigation report (“PSI”) could be prepared. 

On June 11, 2018, Appellant appeared for sentencing at which he read 

a lengthy statement in which he requested a county sentence with work 

release due to his professional and family responsibilities. See N.T. 

Sentencing Hearing, 6/11/18, at 4-11. Appellant also detailed his 

rehabilitation efforts and apologized for his actions. Id. The sentencing court 

noted with displeasure that the offense had taken place in a courtroom, and 

that Appellant had an extensive criminal history that included lengthy stints 

in state prison. Id. at 17-18. The court also acknowledged the sentencing 

guidelines, which proffered a standard range sentence of twelve to eighteen 

months of incarceration, before issuing a bottom-of-the-standard-range 

sentence of one to four years of incarceration with ninety-four days of credit 

for time served. Id. at 18-19. 

Appellant did not file a post-sentence motion. Instead, he pursued a 

timely notice of appeal and challenged the discretionary aspects of his 

sentence. Since he had not filed a post-sentence motion, this Court found his 
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sole allegation of error waived and affirmed his judgment of sentence. See

Commonwealth v. Beitz, 220 A.3d 632 (Pa.Super. 2019) (non-precedential

decision). On January 7, 2020, our Supreme Court denied Appellant’s petition 

for allowance of appeal. See Commonwealth v. Beitz, 222 A.3d 1131 (Pa. 

2020).

Appellant filed a timely, counseled Post-Conviction Relief Act (“PCRA”) 

petition alleging ineffective assistance of counsel due to his attorney’s failure 

to file a post-sentence motion. In the petition, Appellant sought reinstatement 

of his post-sentence and direct appeal rights. The PCRA court held a hearing

at which trial counsel testified that he knew Appellant wished to appeal his 

sentence, but that he did not file a post-sentence motion because he thought 

“it would be a waste of time.” PCRA Hearing, 6/21/21, at 13. At the 

conclusion of the hearing, the PCRA court granted Appellant’s petition and 

reinstated Appellant’s post-sentence and direct appeal rights. Id. at 21. 

Appellant filed a timely post-sentence motion challenging the 

discretionary aspects of his sentence. The court held a hearing, at which all 

parties acknowledged that Appellant’s sentence would expire in six months. 

See N.T. Post-Sentence Motion Hearing, 9/22/21, at 4-12. The court denied 

the motion and the instant appeal followed. Thereafter, Appellant’s counsel 

filed a concise statement of matters complained of on appeal pursuant to 

Pa.R.A.P. 1925(c)(4) indicating that he intended to file an Anders brief. 

Counsel also raised two issues which Appellant wished to raise challenging the 
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court’s denial of his post-sentence motion and his pre-trial double jeopardy 

motion. The trial court submitted its Rule 1925(a) opinion, in which it only 

addressed the discretionary aspects of sentencing issue. 

In this Court, counsel filed both an Anders brief and a petition to 

withdraw as counsel. Accordingly, the following principles guide our review of 

this matter:

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 any additional 

points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions (e.g., 

directing counsel either to comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our own 

review of the appeal to determine if it is wholly frivolous. If the 

appeal is frivolous, we will grant the withdrawal petition and affirm 

the judgment of sentence. However, if there are non-frivolous 

issues, we will deny the petition and remand for the filing of an 

advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007) 

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:
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[I]n 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 statues on point that have led 

to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

Based on our examination of counsel’s petition to withdraw and Anders 

brief, we conclude that counsel has substantially complied with the technical 

requirements set forth above. As required by Santiago, counsel reviewed 

the case history, referred to two issues that arguably support this appeal, 

stated his conclusion that the appeal is frivolous, and cited to the certified 

record and controlling case law which supports this conclusion. See Anders 

brief at 8-15. Additionally, counsel gave Appellant proper notice of his right 

to immediately proceed pro se or retain another attorney.1 See Application 

for Leave to Withdraw, 12/23/21, at unnumbered 1. Accordingly, we proceed 

with an independent examination of the record in order to discern if any nonfrivolous issues exist. Commonwealth v. Dempster, 187 A.3d 266, 273 

(Pa.Super. 2018) (en banc).

Counsel identified two issues that arguably support this appeal:

I. Whether the trial court erred/abused it’s [sic] 

discretion when it denied [Appellant’s] post[-

]sentence motion?

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1 Appellant did not file a response to counsel’s petition.
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II. Whether the trial court erred/abused its discretion by 

not finding a violation of his double jeopardy 

protection under the United States and Pennsylvania 

Constitutions?

Anders brief at 7.

Preliminarily, we note that Appellant’s maximum sentence expired while 

this appeal was pending.

2 Under Pennsylvania law, 

When a criminal defendant appeals the lower court’s 

interpretation of his sentence and does not challenge the legality 

of his sentence or conviction and the sentence is completed before 

the case is decided, the case is moot unless the possibility of 

collateral consequences arises solely from the interpretation of the 

sentence.

Commonwealth v. Kelly, 418 A.2d 387, 388 (Pa.Super. 1980); see also

Commonwealth v. King, 786 A.2d 993, 996 (Pa. Super. 2001) (finding a 

defendant’s challenge to sentence moot where sentence had expired). Since 

Appellant seeks review of the discretionary aspects of a sentence he has fully 

served, there is no relief we can grant as to this issue that would have any 

legal force or effect. See Commonwealth v. Nava, 966 A.2d 630, 633 

(Pa.Super. 2009) (“An issue before a court is moot if in ruling upon the issue 

the court cannot enter an order that has any legal force or effect.”). As a 

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2 While not mentioned in his Anders brief, at the post-sentence motion 

hearing, defense counsel pointed out that Appellant’s sentence would expire 

on March 9, 2022. N.T. Hearing, 9/22/21, at 4, 12. Our own review of the 

record confirms this fact. The trial court sentenced Appellant on June 11,

2018, to one to four years of incarceration, with credit for ninety-four days 

Appellant had already served. Accordingly, Appellant’s final incarceration 

release date was March 9, 2022. 
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result, we agree with counsel that the first issue cannot support this appeal, 

as it is “moot and incapable of appellate review.” King, supra at 996; see 

also Commonwealth v. Blanchard, 236 A.3d 1121 (Pa.Super. 2020) (nonprecedential decision) (finding an appellant’s appeal of the discretionary 

aspects of his sentence was moot and incapable of review). However, 

Appellant’s second issue regarding double jeopardy does implicate the legality 

of his sentence. Accordingly, the mootness doctrine does not apply to 

Appellant’s second issue. Id. 

That issue is whether, pursuant to both Pennsylvania and the United 

States constitution, double jeopardy barred the subsequent terroristic threats 

prosecution. See Anders brief at 14-15. Appellate counsel and the 

Commonwealth argue that this claim is waived since Appellant pled nolo 

contendere and did not raise this issue in his initial direct appeal. We disagree

on both accounts. 

Since Appellant’s direct appeal rights were reinstated, his failure to raise 

this claim in the earlier direct appeal is irrelevant. Since Appellant’s direct 

appeal rights were fully reinstated, we find that Appellant properly preserved 

this claim by litigating it pre-trial and by including it in his concise statement. 

Furthermore, the fact that Appellant pled nolo contendere is of no moment 
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since this challenge goes to the legality of Appellant’s sentence.

3

 See, e.g., 

Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007) (“[I]f the sentence 

clearly implicates the legality of sentence, whether it was properly preserved 

below is of no moment, as a challenge to the legality of sentence cannot be 

waived.”). Accordingly, we proceed to consider Appellant’s substantive claim 

that the subsequent prosecution was barred by the double jeopardy clause of 

the U.S. and Pennsylvania Constitutions.4

In the trial court, Appellant argued that the court did not have the 

authority to convict him of terroristic threats since he was already held in 

summary contempt for making the same verbal threats. Id.; see also Brief 

in Support of Defendant’s Omnibus Motion, 5/30/17, at unnumbered 1. This 

argument was based on the United States Supreme Court decision in U.S. v. 

Dixon, 509 U.S. 688 (1993), which established that double jeopardy 

protections attached to non-summary criminal contempt proceedings, and 

Commonwealth v. Yerby, 679 A.2d 217 (Pa. 1996), which applied Dixon to 

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3 “In terms of its effect upon a case, a plea of nolo contendere is treated the 

same as a guilty plea.” Commonwealth v. Lewis, 791 A.2d 1227, 1230 

(Pa.Super. 2002) (citation omitted). 

4 “The double jeopardy protections afforded by the United States and 

Pennsylvania Constitutions are coextensive and prohibit successive 

prosecutions and multiple punishments for the same offense.” 

Commonwealth v. States, 891 A.2d 737 (Pa.Super. 2005); but see 

Commonwealth v. Banks, 253 A.3d 768, 782 (Pa.Super. 2021) (“Our 

Supreme Court has held that the Pennsylvania Constitution offers broader 

double jeopardy protection than its federal counterpart concerning retrial 

following a mistrial based upon prosecutorial misconduct.”). 
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non-summary criminal contempt offenses in Pennsylvania. Yerby also 

directed trial courts to review the facts underlying the specific offense in 

addition to the elements charged when determining whether double jeopardy 

protections applied. Id.; see also N.T. Pre-Trial Hearing, 9/28/17, at 8-9. 

Appellant’s argument fails. In Commonwealth v. Warrick, 609 A.2d 

576, 576-80 (Pa.Super. 1992), we held that double jeopardy protections did 

not apply to summary contempt convictions. Even if double jeopardy 

protections did apply, it is well-settled that an overlap in proof offered in two 

prosecutions, alone, does not constitute a double jeopardy violation. See 

United States v. Felix, 503 U.S. 378, 386 (1992). Accordingly, the fact that 

the summary contempt offense and the terroristic threats prosecution stem 

from the same incident does not ipso facto affront double jeopardy. Instead, 

to determine whether a defendant’s protection against multiple punishments 

for the same offense has been violated, this Commonwealth applies the test 

set forth in Blockburger v. U.S., 284 U.S. 299 (1932): where the same act 

constitutes a violation of two distinct statutory provisions, the test to be 

applied to determine whether there are two offenses or only one is whether 

each provision requires proof of an additional fact which the other does not. 

See Commonwealth v. Caufman, 662 A.2d 1050 (Pa. 1995). Specifically, 

our Supreme Court instructs us to “compare the elements of the offense 

actually deemed to have been violated in that contempt proceeding against 

the elements of the substantive criminal offense(s).” Yerby, supra at 222. 
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If the elements of both are the same, or if one is a lesser included offense of 

the other, “double jeopardy attaches and the subsequent prosecution is 

barred.” Id. at 221. 

In order to establish summary direct criminal contempt of a magisterial 

district judge, the court must find “misbehavior of any person in the presence 

of the [magisterial district] court”, which “thereby obstruct[ed] the 

administration of justice.” 42 Pa.C.S. § 4137(a)(1). Meanwhile, with respect 

to the crime of terroristic threats, the Commonwealth must prove that the 

appellant “[c]ommunicat[ed] either directly or indirectly a threat to commit a 

crime of violence with [the] intent to terrorize another.” 18 Pa.C.S. 

§ 2706(a)(1). 

We agree with appellate counsel and the trial court that the elements 

governing the relevant summary contempt provision are entirely separate and 

distinct from the elements of terroristic threats. See Yerby, supra at 222; 

see also N.T. Pretrial Hearing, 9/28/17, at 8-11; Anders brief at 15. A 

defendant who is guilty of summary “misbehavior” has not necessarily also 

communicated a threat to commit a crime of violence toward a specific person. 

Furthermore, a defendant who is guilty of terroristic threats has not 

necessarily communicated his threat in the presence of a magisterial district 

judge, thereby obstructing the administration of justice. Thus, both offenses 

contain multiple distinct elements.
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Furthermore, the statements which Appellant made to the female 

witnesses, and which formed the factual basis for the terroristic threats 

charge, were made outside of the magisterial court’s presence. Different 

statements made by Appellant in the court’s presence regarding the 

assistance of his “big fat Jew lawyers,” confirmation of his earlier sexuallyexplicit comments to the female witnesses, and his accusation that the 

defendant conspired with the court to deprive him of his rent money combined 

to form the basis for the summary direct criminal contempt conviction. See 

Brief in Support of Defendant’s Omnibus Motion, 5/30/17, at Exhibit A. 

Accordingly, we agree with the trial court that the elements of the offenses

are both separate and distinct for double jeopardy purposes. Thus, no relief 

is due on Appellant’s final claim.

Based on our review of the record, we agree with the trial counsel’s 

assessment that both issues are frivolous. Moreover, our own independent 

review of the record did not reveal any additional, non-frivolous issues 

preserved in this appeal. See Commonwealth v. Flowers, 113 A.3d 1246, 

1250 (Pa.Super. 2015). Accordingly, we grant counsel’s petition to withdraw 

and affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2022