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[U] Commonwealth v. Carney

Superior Court of Pennsylvania

February 5, 2014



Appeal from the Judgment of Sentence January 2, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003948-2012




Appellant, Louis Carney, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial conviction for persons not to possess firearms.[1] We affirm and grant counsel's petition to withdraw.

The relevant facts and procedural history of this appeal are as follows.

Dawn Saunter testified that she travelled to the 1300 block of South 5th Street on March 13, 2012 between 1:30 p.m. and 2:00 p.m. for a business appointment at a pediatric clinic located on the corner of 5th and Reed Streets. As Ms. Saunter walked from her vehicle toward the clinic, she heard a commotion. She saw a man on the corner of 5thand Reed engaged in a verbal argument with [Appellant], who was standing about a car's length from a minivan. Ms. Saunter continued to walk down the street to reach her destination. As she attempted to walk past [Appellant], he reached into his waistband and pulled out a gun; it was pointed at Ms. Saunter. Ms. Saunter testified that the gun, a semi-automatic pistol, was six inches from her torso. [Appellant] said, "Oh, ma'am, I wouldn't shoot you." [Another male at the scene, Jamal Miller, ] then invited Ms. Saunter into the residence at 1332 South 5thStreet, stating that she would be safe inside. [Appellant] lowered the firearm, and Ms. Saunter followed [Appellant] and Mr. Miller into the house. Ms. Saunter took a seat on the sofa located in the living room, just inside the front door. [Appellant] then pulled the firearm from his waistband and said, "…he should never have done that in this neighborhood…" and then walked out of the room. That was the last time Ms. Saunter saw [Appellant] in the house. After ten to fifteen minutes, Ms. Saunter prepared to leave the house and heard a commotion outside. As Ms. Saunter left, she observed a second entrance door to the house.

(Trial Court Opinion, filed June 24, 2013, at 4-5).

At approximately 1:53 p.m., Philadelphia Police Officer James O'Neill and his partner, Officer Guinter, received a radio call regarding a person with a firearm outside 1332 South 5th Street. The call described the suspect as an African-American male wearing a white t-shirt. The officers arrived at the scene a minute later and observed Appellant, who fit the description of the suspect. Appellant was walking away from the driver's side door of a blue Chevrolet minivan parked in front of 1332 South 5th Street. Officer O'Neill stopped Appellant and conducted a Terry[2] frisk, which did not reveal any weapons. The officers subsequently encountered Mr. Miller, who also fit the description of the suspect. The officers frisked Mr. Miller, but they did not find a firearm.

After conducting the frisks, Officer O'Neill observed Ms. Saunter standing in the doorway at 1332 South 5th Street. Ms. Saunter "was extremely nervous and scared and visibly shaken." (N.T. Suppression Hearing and Trial, 11/7/12, at 11). Ms. Saunter informed Officer O'Neill that Appellant had pointed a firearm at her. Consequently, Officer O'Neill arrested Appellant. During a search incident to arrest, Officer O'Neill recovered a set of vehicle keys from Appellant's right front pants pocket. Officer O'Neill gave the keys to Officer Guinter, who put one of the keys into the "key slot in the door of the [blue minivan] just to see if those keys belonged to that vehicle…." (Id. at 12-13). The keys corresponded to the minivan, but the officers did not immediately search the vehicle. Instead, the officers secured the vehicle and applied for a warrant. Following the issuance of the warrant, police recovered a firearm underneath the front passenger seat of the minivan.

On May 4, 2012, the Commonwealth filed a criminal information charging Appellant with multiple offenses, including persons not to possess firearms. On June 18, 2012, Appellant filed a suppression motion. In it, Appellant asserted that his arrest was illegal, and the police lacked probable cause to support the issuance of the search warrant. Appellant concluded the court should suppress all evidence obtained as a result of his illegal arrest and the defective warrant. The court conducted a suppression hearing on November 7, 2012. Following the hearing, the court denied Appellant's suppression motion.

Appellant immediately proceeded to a bench trial where the Commonwealth pursued a single count of persons not to possess firearms. At the conclusion of trial, the court found Appellant guilty. On January 2, 2013, the court sentenced Appellant to four (4) to eight (8) years' imprisonment, followed by two (2) years' probation. Appellant did not file post-sentence motions.

Appellant timely filed a notice of appeal on January 31, 2013. On March 18, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on April 5, 2013.

As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[3] requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to ...

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