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[U] Commonwealth v. Sowell

Superior Court of Pennsylvania

November 26, 2013



Appeal from the Denial of Post-Sentence Motions March 29, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001643-2010

Appeal from the Judgment of Sentence November 30, 2011 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001643-2010




Appellant, Markale Sowell, appeals from the judgment of sentence entered November 30, 2011. Additionally, Appellant's court-appointed counsel, Julian G. Allatt, Esq., has petitioned to withdraw and has submitted an Anders [1] brief in support thereof, contending that Appellant's appeal is frivolous. After careful review, we grant Attorney Allatt's petition to withdraw as counsel and we affirm Appellant's judgment of sentence.

The trial court summarized the relevant facts as follows.
On September 26, 2010, at approximately 1:00 p.m. Tamika Moore and some of her female relatives were fighting with some other females, including one or more of [Appellant's] female relatives. The fight broke up and the group of females dispersed. [Appellant], who resided in Harrisburg, came to Williamsport in his aunt's vehicle, arriving in the [late] afternoon....
Ms. Moore was in a residence cooking dinner when her son ran into the house and said, "Ma, Aunt Fe is getting jumped." As Ms. Moore went to go outside to see what was going on, she was met at her front screen door by [Appellant], who had a gun in the front of his waistband. [Appellant] pulled a revolver with brown grips from his waistband, pointed it as Ms. Moore's hip and said[, ] "[b]itch, you are coming to the other side." Ms. Moore took this to mean that [Appellant] wanted her to fight on the side of his wife and relatives, instead of with her relatives, who were now engaged in a second fight. Ms. Moore grabbed her eleven year old son who was standing near her, and slammed the front door shut. She called the police, and then she went outside. She saw [Appellant] leaving in a silver sedan just as a police officer was arriving in the area in an unmarked maroon police vehicle. She recognized the vehicle and began yelling and gesturing to the officer that [Appellant] was leaving in the silver sedan. The officer activated his lights and sirens, but [Appellant] sped off.
[Appellant] took the police on a high speed chase through busy intersections in the City of Williamsport. He ran numerous red lights and stop signs. When he attempted to turn left from Fourth Street onto Campbell Street, [Appellant] lost control of the silver sedan, striking a tree and the Weightman apartment building. Two pedestrians, Emily Moon and Alicia Binado, had to jump out of the way to avoid being hit by the vehicle. Although the vehicle was disabled, [Appellant] continued to flee from the police. He jumped out of the vehicle and ran away on foot. The police yelled for him to stop, but [Appellant] did not. The police chased him on foot, and ultimately apprehended him by utilizing their tasers.
The police received consent from the owner of the vehicle and searched the vehicle. They found a .22 caliber H&R revolver with brown grips wrapped in a gold scarf. The police ran the serial number on the gun and discovered that it had been reported stolen. The police also ran a criminal history check on [Appellant] and discovered that he had a robbery conviction in New Jersey, which made it unlawful for him to possess a firearm and rendered him ineligible to obtain a license to do so.

Trial Court 1925(a) Opinion, 11/30/12 at 1-2.

Following a jury trial, Appellant was convicted of Fleeing or Attempting to Elude a Police Officer (75 Pa. Cons. Stat. Ann. § 3733), Persons Not to Possess or Control Firearms (18 Pa. Cons. Stat. Ann. § 6105), Firearms Not be to Carried Without a License (18 Pa. Cons. Stat. Ann. § 6106), two (2) counts of Recklessly Endangering Another Person (18 Pa. Cons. Stat. Ann. § 2705), Simple Assault by Physical Menace (18 Pa. Cons. Stat. Ann. § 2701), Reckless Driving (75 Pa. Cons. Stat. Ann. § 3736), and Driving Without a License (75 Pa. Cons. Stat. Ann. § 1501). On November 30, 2011, the trial court imposed an aggregate sentence of 8 Vi to 17 years incarceration.

On December 1, 2011, Appellant filed post sentence motions, which the trial court denied in an opinion and order entered on March 29, 2012. Appellant subsequently filed a timely pro se notice of appeal, a statement of errors complained of on appeal, and a request for the appointment of counsel.[2] The trial court appointed appellate counsel who filed a brief in this Court pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), with a separate petition seeking to withdraw as counsel on March 18, 2013.

Preliminarily, we note that the appeal docketed at number 832 MDA 2012 appeals the order filed March 29, 2012, denying Appellant's post-sentence motions. "An appeal from an order denying a post-[sentence] motion is procedurally improper because a direct appeal in a criminal proceeding lies from the judgment of sentence." Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.l (Pa.Super. 2007) (citation omitted). Further, the appeal does not fall within any of the exceptions to this rule. See id. Accordingly, we dismiss the appeal docketed at 832 MDA 2012 since it lies from the post-trial order and not from the judgment of sentence. The dismissal does not preclude our analysis of the merits since the appeal docketed at 845 MDA 2012 is taken from the judgment of sentence entered on November 30, 2011. We proceed to the merits.

We begin by addressing counsel's petition to withdraw pursuant to Anders and its progeny. If counsel believes an appeal is frivolous and wishes to withdraw representation on appeal, he must follow the following steps.

First, counsel must petition the court for leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolous; second, he must file a brief referring to any issues in the record of arguable merit; and third, he must furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or to himself raise any additional points he deems worthy of the Superior Court's attention.

Commonwealth v. Santiago, 978 A.2d 349, 351 (Pa. 2009) (citation omitted).

We acknowledge counsel's compliance with each of the Anders requirements. Both counsel's petition to withdraw and accompanying brief aver that he has made a conscientious examination of the record and found Appellant's appeal to be frivolous. Believing Appellant's appeal to be frivolous, counsel "need not argue as an advocate would, but need only set out the issues in brief 'neutral' form in order that a reviewing court...can address the defendant's contentions." Commonwealth v. Miller, 715 A.2d 1203, 1208 (Pa.Super. 1998) (citations omitted). Counsel's brief adequately sets out the issues in neutral form, and does not resemble a no-merit letter nor an amicus curiae brief. Lastly, on March 18, 2013, counsel provided a copy of the brief to Appellant as well as a letter that indicates counsel reviewed the record and did not find any meritorious issues. See Counsel's Letter to Appellant, 3/8/13 (filed 4/1/13). Counsel's letter also advises Appellant of the right to obtain new counsel to pursue the appeal or, alternatively, to pursue the matter pro se. Since counsel has complied with the dictates of Anders, we must next "conduct [our] own review of the trial court's proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous." Commonwealth v. Wright, 846 A.2d 730, 736 (Pa.Super. 2004) (citation omitted).

On May 15, 2013, Appellant filed a pro se response[3] to counsel's Anders brief. Counsel sets forth (7) issues[4] on appeal that Appellant contends have arguable merit:

I. Whether the charges against Appellant should be dismissed for violation of the Appellant's Due Process rights where arresting officers:
a. Failed to fingerprint and photograph the [Appellant] following his arrest and
b. Failed to read Appellant his Miranda rights[?]
II. Whether victims Emily Moore and Alicia Binado's failure to testify at trial constituted a violation of the Appellant's right to confrontation under the Pennsylvania and U.S. Constitutions^]
III. Whether Appellant was prejudiced by the Commonwealth's failure to turn over a traffic incident report prior to trial[?]
IV. Whether the evidence presented at trial was sufficient to permit the jury to find that the Appellant was guilty of possessing the revolver found in the vehicle operated by Appellant where:
a. The gun was previously reported stolen, others pleaded guilty to stealing the gun in separate cases, and Appellant did not have any connection to those individuals[;]
b. The gun was never fingerprinted or tested for DNA[;] c. Appellant testified that he never had a gun, and;
d. Tamika Moore's testimony could not be trusted[?]
V. Whether Officer Snyder of the Williamsport Police improperly tampered with evidence when he test fired the revolverf?]
VI. Whether the court erred by not dismissing the Appellant's case due to a 119 day delay between Appellant's conviction and sentencing[?]
VII. Whether the evidence presented at trial was sufficient to permit the jury to find that Appellant was guilty of simple assault by physical menace[?]

Appellant alleges a violation of his Due Process rights arising from two (2) separate factual circumstances. Due process law stems from the constitutions of both the United States and Pennsylvania which provide that no person shall be deprived of life, liberty, or property without due process of law. See U.S. Const, amend. V, as made applicable to state proceedings by U.S. Const, amend XIV; Pa. Const. Art. 1 § 9. "Due process of law guarantees respect for those personal immunities which are so rooted in the traditions and conscience of our people as to be ranked as fundamental, or are implicit in the concept of ordered liberty." Commonwealth, v. Mayhugh, 336 A.2d 379, 381 (Pa.Super. 1975) (citations and internal quotation marks omitted). "Procedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case." Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (citations and internal quotation marks omitted).

First, Appellant alleges the charges should be dismissed because the arresting officers failed to fingerprint and photograph the Appellant following his arrest. It is true that certain Pennsylvania Rules of Criminal Procedure direct that a Defendant be fingerprinted upon arrest. See Pa.R.Crim.P. 510(C)(2); Pa.R.Crim.P. 543(C)(3); and Pa.R.Crim.P. 547(C)(6). However, Appellant fails to suggest why the failure to follow these directives would result in the abrogation of a fundamental right or would offend a notion implicit in the concept of ordered liberty. Instead, we are convinced these rules amount to mere ministerial directives that do not implicate procedural due process. Furthermore, with respect to the lack of a post-arrest photograph, Appellant fails to point to relevant statutory authority or case law suggesting that a post-arrest photograph is a necessary component of procedural due process. Therefore, the trial court was correct in denying Appellant's Due Process argument.

Second, Appellant maintains that the arresting officer's failure to read his Miranda[5] warnings should result in dismissal of the charges. "The prosecution may not use statements stemming from a custodial interrogation of a defendant unless it demonstrates that he was apprised of his right against self-incrimination and his right to counsel." Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (citation omitted). Accordingly, any time a defendant is subject to a custodial interrogation, Miranda warnings must be given. See id. Pennsylvania courts have recognized that routine booking questions pertaining to biographical information are exempt from the dictates of Miranda since they do not amount to a custodial interrogation. See Commonwealth v. Sepulveda, 855 A.2d 783, 796-797 (Pa. 2004) (citation omitted) (Castille, J. concurring).

Appellant's incorrectly characterizes his remedy for the alleged Miranda violations as outright dismissal, instead of the proper remedy, which is suppression of the statement(s) made. However, this mischaracterization is immaterial since Appellant's statements to police were not used against him at trial, except those biographical statements that are not subject to Miranda. The lack of a custodial interrogation is understandable since the arresting officers personally observed most of Appellant's criminal conduct during the high-speed pursuit. Thus, Appellant's argument fails.

Appellant was convicted of two counts of reckless endangerment when he lost control of the car he was driving and almost hit two (2) bystanders. Appellant argues that failure of the bystanders to testify at trial resulted in a violation of his right to confront the witnesses against him as provided by the United States and Pennsylvania Constitutions. See U.S. Const, amend. VI; Pa. Const. Art. 1 § 9.

An individual is guilty of Recklessly Endangering Another Person "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa. Cons. Stat. Ann. § 2705. "This statutory provision was directed against reckless conduct entailing a serious risk to life or limb out of proportion to any utility the conduct might have." Commonwealth v. Rivera, 503 A.2d 11, 12 (Pa.Super. 1985) (en banc).

We do not find merit to Appellant's contention that his right to confrontation was violated. It was clear from the jury's viewing of the dashboard camera recording that Appellant's actions placed or may have placed the two bystanders in danger of death or serious bodily injury. Furthermore, during cross examination of Officer Paulhamus, Appellant elicited testimony about the identity of the bystanders and the content of the statements they gave to police. See N.T. 8/2/11 at 112-115. Therefore, the trial court correctly concluded that Appellant's right to confrontation was not violated based on the existence of independent evidence, and because Appellant elicited hearsay testimony on cross-examination.

Appellant next contends that he is entitled to dismissal because the Commonwealth violated the trial court's discovery order by failing to provide him with copies of the traffic incident report prior to trial. Pennsylvania Rule of Criminal Procedure 573(E) sets forth various remedies available to trial courts for discovery violations. Beyond the remedies set forth in Rule 573(E), Pennsylvania Courts have awarded a new trial when the defendant demonstrates prejudice because of the discovery violation. See Commonwealth v. Williams, 863 A.2d 505 (Pa. 2004); Commonwealth v. Hood, 872 A.2d 175 (Pa.Super. 2005).

We have great difficulty finding that Appellant was prejudiced by the Commonwealth's failure to disclose the traffic incident report before trial. The trial court appropriately described the lack of prejudice as follows.

There was no new information in...the traffic incident report....The traffic incident report contained the same information as contained in the criminal incident report and depicted on the DVD. [Appellant] was aware of the identities of the alleged victims for the recklessly endangering another person charges in advance of trial, as this information was contained in the affidavit of probable cause filed with the criminal complaint and the police reports that [Appellant] received in discovery....

Trial Court's 1925(a) Opinion, 11/30/12 at 7-8.

The trial court correctly denied Appellant's request for a new trial based on his failure to demonstrate prejudice because of the alleged discovery violation.

Appellant's next argument deals generally with the sufficiency of the evidence relating to the firearms convictions, specifically Persons Not to Possess a Firearm and Possessing a Firearm Without a License.

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction ... does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict.... [A]ll of the evidence and any inferences drawn therefrom must be viewed in the light most favorable to the Commonwealth as the verdict winner.

Commonwealth v. McCurdy, 943 A.2d 299, 301-02 (Pa.Super. 2008) (citations, emphasis, and internal quotation marks omitted).

To sustain a conviction of Persons Not to Possess a Firearm, the Commonwealth must prove that the Appellant possessed a firearm and that he was previously convicted of an offense that prohibits him from possessing, using, controlling, or transferring the firearm. See 18 Pa. Cons. Stat. Ann. § 6105. Firearms are defined as "any weapons which are designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon." 18 Pa. Cons. Stat. Ann. § 6105(i)

Viewing the evidence in the light most favorable to the Commonwealth, it is clear that sufficient evidence exists to sustain the conviction. First, when Appellant pointed the firearm at Tamika Moore, she described the weapon as a revolver with brown grips. See NT. 8/2/11 at 19-20. Upon Appellant's eventual apprehension, arresting authorities obtained consent to search the vehicle Appellant drove, wherein they discovered a loaded .22 caliber revolver with brown grips wrapped in a scarf that matched the description provided by Ms. Moore.[6] See id. at 71-72. Second, Appellant stipulated that he has a conviction which prohibits him from possessing firearms. See id. at 80. Lastly, the firearm was test fired and determined to be functional. See id. at 161-165. Thus, we find the evidence presented supports the conviction of Person Not to Possess or Control Firearms. We now turn to the second firearm conviction.

A violation of Firearms Not to be Carried Without a License occurs when "any person...carries a firearm in any vehicle or any person...carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license...." 18 Pa. Cons. Stat. Ann. § 6106(a)(1). As previously discussed, the revolver at issue meets the definition of firearm since it was tested and determined to be functional. See NT. 8/2/11 at 161-165. Further, the firearm was discovered in the vehicle occupied by Appellant immediately before his apprehension. Id. at 71-72. Lastly, the arresting authorities determined Appellant did not possess a license to possess a firearm. Id. at 77-78. Accordingly, sufficient evidence exists to support Appellant's conviction of Firearms Not to be Carried Without a License.

We note that Appellant suggests that he is entitled to a judgment of acquittal on the firearm charges for three reasons. The first reason is that the firearm was previously reported stolen, others pleaded guilty to stealing the firearm, and Appellant is not connected to those individuals. Merely because Appellant did not know these individuals does not foreclose the possibility that he obtained the firearm in other indirect means such as by gift, sale, or simply finding the firearm. Further, as the evidence shows, it is clear Appellant possessed the firearm on the date of the incident. The second argument Appellant advances is that he cannot be determined to possess the firearm due to a lack of fingerprint or DNA evidence. This evidence is unnecessary. The direct and circumstantial evidence presented by the Commonwealth is more than sufficient to sustain Appellant's firearms convictions. Lastly, Appellant suggests that the testimony of Tamika Moore "cannot be trusted." However, it is not out function to usurp the function of the jury in determining the credibility of the witnesses. See Commonwealth v. Baker, 511 A.2d 777, 783 (Pa. 1986). Based on the foregoing, we find that sufficient evidence exists to support Appellant's firearm convictions.

Appellant next alleges that Williamsport Police tampered with the firearm when they test fired it. The record is devoid of any evidence that Officer Paulhamus in obtaining the revolver, or Officer Snyder in test firing the revolver, tampered with the evidence. Appellant's argument fails.

Appellant maintains that that trial court erred by failing to dismiss the case based on a 119 day delay between his conviction and resulting sentence. "[Sjentence in a court case shall ordinarily be imposed within 90 days of conviction...." Pa. R. Crim. P. 704(A)(1). "[A] defendant sentenced in violation of [Rule 704] is entitled to a discharge only where the defendant can demonstrate that the delay in sentencing prejudiced him or her." Commonwealth v. Dupre, 866 A.2d 1089, 1109 (Pa.Super. 2005) (citation and footnote omitted). While sentence in the matter was delayed 119 days, the trial court indicates the delay was due to a full court calendar in the month of October. Further, and most importantly, Appellant fails to allege any form of prejudice that occurred to him because of the delay. Consequently, Appellant's request for dismissal for violation of Pa.R.Crim.P. 704 is denied.

Appellant's final argument is that the evidence presented at trial was insufficient to support a finding that he was guilty of Simple Assault by Physical Menace. To sustain a conviction, the Commonwealth must prove that an individual "intentionally plac[ed] another in fear of imminent serious bodily injury through the use of menacing or frightening activity. Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.Super. 2003) (citation omitted). "The act of pointing a gun at another person can constitute simple assault as an attempt by physical menace to put another in fear of imminent serious bodily injury." Id. (citation and brackets omitted).

The evidence presented at trial clearly supports Appellant's guilt of Simple Assault by Physical Menace. Appellant confronted Tamika Moore with a loaded revolver in his waistband. He then removed the revolver from this waistband, pointed it at her hip, and verbally threatened her. These actions are likely to place an individual in fear of imminent serious bodily injury. Accordingly, sufficient evidence exists to support Appellant's conviction.

After examining the issue contained in the Anders brief and after undertaking our own independent review of the record, we concur with counsel's assessment that the appeal is wholly frivolous.

The appeal docketed at 832 MDA 2012 is dismissed. Appeal docketed at 845 MDA 2012, judgment of sentence is affirmed. Petition to withdraw as counsel granted. Motions denied.

Judgment Entered.

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