Submitted February 2, 2015
Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0001450-2012. Before GEROFF, J.
Todd M. Mosser, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: BOWES, SHOGAN and FITZGERALD,[*] JJ.
Edward Zeigler appeals from the judgment of sentence seven to fourteen years incarceration to be followed by ten years probation imposed by the trial court after he pled guilty to aggravated assault and persons not to possess a firearm. Counsel has filed a petition to withdraw from representation and a brief 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 (Pa. 2009).
We decline to permit counsel to withdraw at this stage and remand with directions to counsel to file either a merits brief or a supplemental Anders brief addressing
whether Appellant's triggering New York robbery offense for the persons not to possess a firearm was a juvenile adjudication or a conviction. See Commonwealth v. Hale, 2014 PA Super 19, 85 A.3d 570 (Pa.Super. 2014), allowance of appeal granted, 113 A.3d 1228, (Pa. 2014) (filed July 2, 2014) (discussing grading of persons not to possess a firearm where prior offense was a juvenile adjudication).
The trial court delineated the following facts underlying Appellant's entry of his guilty plea.
On October 19, 2011, the complainant, Javier Cancel was sitting alone at the Cove bar, chatting with the bartender, and having a few beers. The Defendant and Ms. Ann Marie Thorsen, who were seated in a lounge area behind the barstools, were making a lot of noise and were goofing around. The Defendant came up numerous times to the bar to order drinks and had some words with Mr. Cancel. Video surveillance showed that the Defendant appeared to be bothering Mr. Cancel, leaning on him, putting his arm around him, and making comments. At one point, Mr. Cancel got up from his seat for a few moments during which time the Defendant sat down on Mr. Cancel's bar stool even though there were plenty of other bar stools available. When Mr. Cancel came back, he and the Defendant began to elbow each other and argue. The Defendant started swearing at Mr. Cancel and told him to come outside and fight. Mr. Cancel remained at the bar for a few moments, and the Defendant and a female companion went outside the bar. Mr. Cancel then did get up and leave to go outside to see what was going on; he was anticipating engaging in a fistfight with the Defendant. When Mr. Cancel got outside, the Defendant told the female to leave the area. He headed immediately toward Mr. Cancel and threw at least three punches. Mr. Cancel was able to duck and avoid those initial punches and then told the Defendant, " What is that? All you've got?" At this time the Defendant, who was only five feet away, pulled a firearm from his front waistband area and held it with his arm directly outstretched at chest height and pointed it at Mr. Cancel. He fired at least three times. Mr. Cancel put his right forearm up to shield his face; one of the bullets entered his forearm. The Defendant then walked southbound on Richmond Street where Joseph Rayner saw a firearm in his hand.
The Defendant then walked to his car which was parked on Melvale Street where he removed his jacket and most of his clothing and put the clothing inside his vehicle. The Defendant threw the gun (a .380 caliber firearm) in an empty lot nearby. Wearing only a black undershirt, he cut through an abandoned house and ran to Tilton Street. Police Officer McGuire, who was responding to the area, was traveling westbound on Tilton Street when he spotted the Defendant (who matched the flash information) hiding between two parked cars. Once Officer McGuire stopped his vehicle, the Defendant darted out and started running in the opposite direction. Officer McGuire pursued on foot and was able to catch the Defendant with the assistance of at least three other officers and adult male neighbors from the block.
Mr. Rayner identified the Defendant as the male he saw carrying the gun down
Richmond Street, and Mr. Cancel identified the Defendant without any hesitation at the preliminary hearing. The three fired cartridge casings were examined, and it was determined that they were fired from the same gun, that being a .380 which was found in the nearby alley.
Trial Court Opinion, 1/28/14, at 1-2 n.1.
The Commonwealth initially charged Appellant with attempted murder, aggravated assault, persons not to possess a firearm, carrying an unlicensed firearm, carrying a firearm on the public streets of Philadelphia, terrorist threats, simple assault, and recklessly endangering another person. The persons not to possess a firearm charge arose because Appellant previously committed a first-degree robbery as a fifteen-year-old juvenile in New York. According to the representations of the Commonwealth in a motion to preclude bail, this resulted in a conviction and jail sentence, rather than an adjudication of delinquency.
Appellant entered an open guilty plea to the aggravated assault and person not to possess a firearm charges. The Commonwealth nolle prossed the remaining counts. The court sentenced Appellant on May 2, 2013, to the aforementioned period of incarceration on the aggravated assault charge and ten years probation for the firearms violation. Appellant filed a timely motion for reconsideration of his sentence, alleging that ...