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[U] Commonwealth v. Robinson

Superior Court of Pennsylvania

March 7, 2014



Appeal from the Judgment of Sentence of March 20, 2013 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0014572-2011.

Joseph D. Seletyn, Esq.




Christopher Robinson (Appellant) appeals from the March 20, 2013 judgment of sentence of three to twelve months' incarceration following his conviction for a violation of the Uniform Firearms Act (VUFA), 18 Pa.C.S. § 6106. Also before us is counsel's petition to withdraw. We grant the petition to withdraw as counsel and affirm the judgment of sentence.

The trial court summarized the underlying facts as follows.

On the evening of December 13, 2011, Police Officer Christopher Padilla attempted to serve a Protection from Abuse Order on [Appellant] at 320 Cantrell Street, Philadelphia, PA. [Appellant]'s paramour, who had obtained the Protection from Abuse Order, met Officer Padilla at the residence and let him in. Once inside the property, Officer Padilla observed an empty firearm box and a box with loaded rounds on the dining room table. Officer Padilla was unable to locate [Appellant] inside the home and called additional police officers "for a lead" before he went back to headquarters to prepare a safety memo.
At approximately 11:50 A.M., Police Officer Charles James parked his car four or five car lengths down from 320 Cantrell Street to survey the area and wait for [Appellant] to return. At approximately 1:50 P.M., Officer James observed [Appellant] exit a cab at the end of the street and walk towards 320 Cantrell Street.
Office[r James] exited his unmarked police vehicle, approached [Appellant] and noticed a "bulge coming out of [Appellant]'s… right hip." As [Appellant] walked up the steps of 320 Cantrell Street, Officer James identified himself and asked [Appellant] his name. [Appellant] identified himself and Officer James then instructed [Appellant] to put his hands on the wall, patted him down, and recovered a loaded firearm that was concealed under a sweater and tucked in the waistband of Defendant's pants near his right hip.
The recovered weapon was a .40 caliber Smith and Wesson semiautomatic handgun that was operable, had a barrel length of four inches, and was loaded with 36 cartridges. [Appellant] did not have a license to carry a firearm at the time of the offense.

Trial Court Opinion, 9/11/2013, at 1-2 (unnumbered) (citations to the record omitted).

On December 12, 2012, following a non-jury trial at which Officer Padilla, Officer James, and Appellant testified, the trial court found Appellant guilty of carrying a firearm without a license. On March 20, 2013, Appellant was sentenced to three to twelve months of incarceration, followed by three years of probation. Appellant timely filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal. Counsel instead filed a statement of intent to file an Anders/McClendon[1] brief pursuant to Pa.R.A.P. 1925(c)(4).

In his brief, Appellant's counsel states one issue that might arguably support an appeal: "Was the evidence sufficient to prove a violation of the Uniform Firearms Act?" Anders Brief at 2.

As a preliminary matter, we address counsel's application to withdraw before reaching the merits of the issues raised in the brief. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997)) ("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.").

To withdraw pursuant to Anders, counsel must: 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;[2] and 3) furnish a copy of the brief to the appellant and advise him or her of the right to obtain new counsel or file a pro se brief to raise any additional points that the appellant deems worthy of review. Commonwealth v. Garang, 9 A.3d 237, 240 (Pa.Super. 2010). Thereafter, this Court independently reviews the record and issues. Id.

Our review of the record in this case reveals that counsel has substantially complied with Anders and Santiago. We therefore proceed to an independent review.

We consider a challenge to the sufficiency of the evidence pursuant to the following standard.

[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 (Pa.Super. 2013) (internal quotations and citations omitted). The Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record and consider all evidence received against the defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

Appellant was convicted of violating section 6106(a)(1) of the crimes code, which provides in relevant part as follows.

[A]ny person who carries a firearm in any vehicle or any person who 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 under this chapter commits a felony of the third degree.

18 Pa.C.S. § 6106(a)(1). "In order to convict a defendant for carrying a firearm without a license, the Commonwealth must prove: '(a) that the weapon was a firearm, (b) that the firearm was unlicensed, and (c) that where the firearm was concealed on or about the person, it was outside his home or place of business." Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004) (quoting Commonwealth v. Bavusa, 750 A.2d 855, 857 (Pa.Super. 2000), affirmed, 832 A.2d 1042 (Pa. 2003)).

The trial court addressed the question of the sufficiency of the evidence as follows.

In this case, it was undisputed that the recovered weapon was a firearm and [Appellant] did not have a license to carry a firearm at the time of the offense. The only factual issue was whether the Commonwealth presented sufficient evidence to prove that [Appellant] was "outside of his home with a concealed gun on or about his person."
Officer James testified credibly that he observed [Appellant] walking down Cantrell Street, observed [Appellant] approach the home at 320 Cantrell Street, and observed a bulge coming from [Appellant]'s right hip area. [N.T., 12/12/2012, at 27-30]. Officer James also testified credibly that he recovered a gun from [Appellant]'s waistband while [Appellant] was on the sidewalk[3] outside of 320 Cantrell Street. [Id. at 31-32].
In contrast, the trial court did not find [Appellant]'s testimony to be credible. [Appellant] claimed that he exited his home and was waiting for a ride on his stoop when Police Officer James approached him and recovered the handgun. [Id. at 56-57]. He also testified that the gun was in a gym bag. [Id. at 69-70]. Based upon his body language and his answers, the trial court did not find any part of this testimony to be credible.

Trial Court Opinion, 9/11/2013, at 3-4 (unnumbered).

Appellant argues that Officer James was lying. Appellant's Brief at 10. This claim entitles him to no relief, as "[t]he finder of fact … exclusively weighs the evidence, assesses the credibility of witnesses, and may choose to believe all, part, or none of the evidence." Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011). The trial court believed Officer James and disbelieved Appellant. This Court will not disturb the trial court's credibility determinations.

Upon our review of the record, we have no hesitation in concluding that the evidence was sufficient to establish each element of the crime for which Appellant was convicted. Accordingly, we agree with counsel that this appeal is wholly frivolous.

Petition to withdraw as counsel granted. Judgment of sentence affirmed.

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