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[U] Commonwealth v. White

Superior Court of Pennsylvania

February 7, 2014



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




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 ...

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