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[U] Commonwealth v. White

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KENNETH WHITE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered March 31, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004988-2008

BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J. [*]

MEMORANDUM

BENDER, P.J.

Appellant, Kenneth White, appeals from the judgment of sentence of three to six years' incarceration, followed by three years' probation, imposed after he was convicted of aggravated assault, possession of a firearm by a person prohibited (PFPP), possessing an instrument of crime (PIC), and recklessly endangering another person (REAP). Appellant raises various contentions on appeal, including a claim that the evidence was insufficient to sustain his convictions. Additionally, his counsel, Norman Scott, Esq., seeks permission to withdraw his representation of Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we agree with counsel that Appellant's claims are frivolous. Accordingly, we affirm Appellant's judgment of sentence and grant counsel's petition to withdraw.

On April 1, 2008, at approximately 1:00 a.m., complainant Frankie DeGale exited his car and walked across the street toward his mother's house at 72 East Pastorius Street in the Germantown section of Philadelphia. Before DeGale had finished crossing the street, complainant Treasure Young approached him. Ms. Young was crying and asked DeGale a question [about where she could find a bus stop]. While answering Young's question, DeGale heard two gunshots coming from upstairs in a boarding house located at 78 East Pastorius Street. DeGale said the shots came from either the second or third floor. DeGale instructed Young to duck behind a car to avoid the bullets. While Young was hiding behind a car, DeGale saw [] Appellant exit 78 East Pastorius Street holding a gun with two hands and dressed only in boxer-shorts. DeGale witnessed [] Appellant fire four shots directly at Young and say "Who the hell is that nigger?" DeGale ran inside 72 East Pastorious [S]treet to call the police. While inside, DeGale saw [] Appellant throw a blue storage bin at Young. Young walked back toward the house and started to pick up the storage bin. [] Appellant then slapped Young across the face. At that moment, police officers arrived on the scene, and [] Appellant ran back into 78 East Pastorius Street. Upon seeing the officers, DeGale walked over and showed them which house [] Appellant had entered. Officers entered the house, saw [] Appellant in his second floor bedroom, and took him into custody. The police led [] Appellant out of the house and placed him in a police van. While [] Appellant was sitting in the police van, an officer escorted DeGale over to the van. DeGale looked at [] Appellant's entire body, saw he was still wearing the same boxer shorts, and identified him as the shooter.
Shortly thereafter, Detective Gilbert prepared a search warrant for 78 East Pastorius Street. Sergeant Christopher Small approved the warrant, and both officers executed the warrant that same morning between 7:00 a.m. and 8:00 a.m.[]8 When the officers executed the warrant, they found a recently fired .22 caliber Ruger gun in an unlocked third floor bedroom closet and seized it. The gun had 16 twenty-two caliber bullets in a banana clip.9 The police also recovered a .22 caliber bullet casing in the street directly in front of the boarding house. Officer Grandizio concluded that the bullet casing was fired from the same gun that the officers found in the house.
At the April 22, 2008, preliminary hearing, DeGale again identified [] Appellant as the shooter. At trial, however, DeGale had trouble identifying [] Appellant. DeGale claimed that [] Appellant's facial hair made him appear different.10 However, defense counsel stipulated that [] Appellant was the man arrested on the night of the incident, and the man DeGale identified as the shooter on the night of the incident (April 1, 2008) and at the preliminary hearing (April 22, 2008).
8 The property searched was a three-story complex where residents rented individual rooms. The first floor had one bedroom, the second floor had three bedrooms, and the third floor had two unlocked and unoccupied bedrooms. [] Appellant occupied the middle room on the second floor.
9The banana clip held up to 32 bullets and one in the chamber.
10Appellant had no facial hair [on] the day of the incident, but had a beard and moustache at trial. DeGale also claimed he could not see well at trial because he was not wearing his glasses.

Trial Court Opinion (TCO), 9/30/11, at 2-4 (citations to the record and some footnotes omitted).

Appellant waived his right to a jury trial and proceeded to a nonjury trial, at the close of which the court convicted him of two counts of aggravated assault, PFPP, PIC, and REAP. On March 31, 2011, Appellant was sentenced to three to six years' incarceration for his aggravated assault offense. He also received a consecutive sentence of three years' probation for possession of a firearm by a person prohibited. The court did not impose any further penalty for Appellant's remaining offenses. Appellant filed a timely pro se notice of appeal, as well as a timely pro se concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).[1]

Therein, Appellant raised the following "main legal issues, " as summarized by the trial court:

(1) Counsel was [i]neffective, (2) [t]here was insufficient evidence to support the convictions, (3) [p]olice did not give Miranda[2] warnings, (4) [p]olice did not have an arrest warrant, and (5) [p]olice did not have a search warrant.

TCO at 4.

On September 3, 2013, Appellant's counsel, Attorney Scott, filed with this Court a petition to withdraw and an Anders brief.[3] "When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997)). In Santiago, our Supreme Court altered the requirements for counsel to withdraw under Anders. Thus, pursuant to Anders/Santiago, in order to withdraw from an appeal, counsel now 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. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010) (citing Santiago, 978 A.2d at 361). This Court must then conduct its own review of the record and independently determine whether the appeal is in fact wholly frivolous. See id. at 594.

Instantly, Attorney Scott's Anders brief provides a summary of the procedural history and facts of Appellant's case with citations to the record. It also includes a discussion of the various issues Appellant raised in his pro se Rule 1925(b) statement, and Attorney Scott's rationale for concluding that an appeal on Appellant's behalf would be wholly frivolous. Attorney Scott supports his discussion with citations to the record, as well as relevant case law. Therefore, we conclude that Attorney Scott has complied with the requirements of Anders/Santiago. Accordingly, we will now independently review the merits of Appellant's assertions, and also determine whether there are any other issues he could arguably present on appeal. See Daniels, 999 A.2d at 594.

First, Appellant contends that his trial counsel acted ineffectively in several regards. However, this is Appellant's direct appeal and, recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of ineffective assistance of counsel should be deferred until collateral review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Holmes, 79 A.3d at 576. The specific circumstances under which ineffectiveness claims may be addressed on direct appeal are not present in the instant case. See id. at 577-78 (holding that the trial court may address claim(s) of ineffectiveness where they are "both meritorious and apparent from the record so that immediate consideration and relief is warranted, " or where the appellant's request for review of "prolix" ineffectiveness claims is "accompanied by a knowing, voluntary, and express waiver of PCRA review"). Accordingly, we agree with Attorney Scott that these claims are 'frivolous, ' inasmuch as Appellant must wait to raise them until collateral review.

Next, Appellant seeks to challenge the sufficiency of the evidence to sustain his convictions.

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa.Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011).

We begin by defining the offenses of which Appellant was convicted. First, 18 Pa.C.S. § 2702(a)(1) defines aggravated assault as follows: "A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" Additionally, a person commits the offense of REAP "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S. § 2705.

Appellant was also convicted of PIC, which requires that the Commonwealth prove that Appellant possessed "any instrument of crime with intent to employ it criminally." 18 Pa.C.S. § 907(a). Finally, Appellant was found guilty of PFPP pursuant to 18 Pa.C.S. 6105(a)(1), which states:

(a) Offense defined.--

(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.

Here, the Commonwealth's evidence – namely, DeGale's testimony and statement to police on the night of the incident – was sufficient to prove that Appellant committed each of these offenses. On the night of the shooting, DeGale told police that shortly after Treasure Young approached him on the street, he heard two gunshots being fired from the second floor of the home at 78 East Pastorius Street. N.T. Trial, 1/30/08, at 32, 34. DeGale told Young to duck behind a car while he ran into his mother's house to call 911. Id. at 32-33. DeGale then observed a man, whom he identified as Appellant, come out onto the street and fire approximately four additional shots "straight at" Young from a distance of about 30 to 40 feet. Id. at 33, 35, 37. DeGale told police that he was standing about five to six feet away from Young when Appellant was shooting at her, and he felt that he was also in danger of being shot. Id. at 36. After the shooting, police recovered a .22 caliber gun from the house at 78 East Pastorius Street, and also a .22 caliber bullet casing matching that gun from the street directly in front of that home. Id. at 67-68, 72. Appellant stipulated at trial that he was "statutorily ineligible to carry a firearm." Id. at 72. The totality of this evidence was sufficient to sustain each of Appellant's convictions.[4]

In his next issue, Appellant seeks to argue that police acted improperly by failing to provide him with Miranda warnings prior to questioning him. The trial court rejected this claim on two bases. First, the court found that there was no evidence that the police did not provide Appellant with Miranda warnings. See TCO at 8. Secondly, the court emphasized that even had police failed to provide such warnings, "there was no Miranda violation because the Commonwealth never entered into evidence any of Appellant's statements." TCO at 8. Our review of the record confirms that the Commonwealth did not admit any statement made by Appellant to police. Thus, Appellant's argument that a violation of Miranda occurred in this case is frivolous.

In his final two issues, Appellant attempts to challenge the legality of both his arrest and the search of 78 East Pastorius Street. However, Appellant did not raise these claims in a pretrial motion to suppress the evidence obtained as a result of those alleged illegalities. Therefore, the only way Appellant can pursue such assertions is by filing a PCRA petition alleging that his trial counsel was ineffective for failing to file a pretrial motion to suppress.

Based on our review of the arguments Appellant seeks to raise on appeal, we conclude that his claims are either frivolous, or that he presents assertions that must be deferred until collateral review. Additionally, our review of the record reveals no other claims of arguable merit that Appellant could proffer on appeal. As such, we affirm his judgment of sentence and grant Attorney Scott's petition to withdraw.

Judgment Entered.[5]


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