Com. v. Taylor, J. ( 2018 )

J-S62033-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY TAYLOR, :
:
Appellant : No. 519 MDA 2017
Appeal from the Judgment of Sentence December 30, 2014
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002712-2013
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 16, 2018
Jeffrey Taylor (Appellant) appeals nunc pro tunc from the December 30,
2014 judgment of sentence of three to six years of incarceration after a jury
found him guilty of one count each of burglary and theft by unlawful taking.
Counsel has filed a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). Upon review, we grant counsel’s petition to withdraw
and affirm Appellant’s judgment of sentence.
The testimony at trial established the following. On July 27, 2013, at
approximately 4:40 a.m., Jessica Mbaye heard glass smashing and looked out
her window. She saw a person wearing pants and a hoodie carrying a large
television box crossing the street. She called 911. Officers Timothy Minnick
and Daniel Lewis responded to the report. When Officer Minnick reached the
*Retired Senior Judge assigned to the Superior Court.
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area, he saw a male wearing a gray hoodie, dark pants, and a dark hat
crossing the street. That individual was later identified as Appellant. Officer
Minnick approached Appellant and noticed he was “disheveled, sweating,
[had] glossy bloodshot eyes, [and] slurred speech.” N.T., 11/3/2014, at 58.
He also had “an odor of alcohol emitting from his breath and person.” Id. at
59. Officer Minnick believed Appellant was intoxicated. Appellant told Officer
Minnick he was walking to his mother’s house, which is located a few miles
away. Officer Minnick then called Officer Lewis for backup. When Officer
Lewis arrived, he recognized Appellant from having seen him about 25
minutes earlier near Nardy’s TV & Appliance Store. Officer Minnick
transported Appellant to the police station. At the station, Appellant was
asked to remove his hoodie.
Officer Lewis went to Nardy’s and observed damage to a window. He
called for additional help in securing the scene. Officer Lewis then met up
with Officer Minnick to retrieve an item of Appellant’s clothing, specifically his
hoodie. Officer Lewis contacted K-9 Officer Edward Sulima to bring his dog,
Athena, to Nardy’s. Athena sniffed the hoodie then found the TV near a set
of dumpsters behind some bushes. Athena also detected the scent near
Nardy’s.
Alfred Oeller, owner of Nardy’s, received a call from police telling him
that someone had broken into his store by throwing a brick through a window.
Oeller went to Nardy’s where he found that a box containing a Magnavox
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Phillips 50-inch flat screen TV was missing. When he had left the evening
before, that box had been placed by the front door for delivery to a customer.
Police eventually returned the TV to Oeller with significant damage.
Appellant was charged with several crimes as a result of this incident.
He was arrested and released on bail. A jury trial was held, and on November
4, 2014,1 Appellant was found guilty of burglary and theft by unlawful taking.2
On December 30, 2014, Appellant was sentenced to three to six years of
incarceration. Appellant did not file a direct appeal.
On January 13, 2016, Appellant pro se timely filed timely a petition
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Attorney Jeffrey Yelen was appointed, and he filed a supplemental petition
requesting the reinstatement of Appellant’s right to a direct appeal nunc pro
tunc. The petition was granted, and Appellant timely filed a notice of appeal
to this Court. Attorney Yelen then requested to withdraw as counsel, and the
1 The delay between the filing of charges and the jury trial was due to the fact
that Appellant absconded while on bail on at least one occasion.
2 The subsection of the burglary statute for which Appellant was convicted is
codified as follows: “A person commits the offense of burglary if, with the
intent to commit a crime therein, the person … enters a building or occupied
structure, or separately secured or occupied portion thereof that is not
adapted for overnight accommodations in which at the time of the offense no
person is present.” 18 Pa.C.S. § 3502(a)(4). Theft by unlawful taking is
defined as follows: “A person is guilty of theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S. § 3921(a).
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trial court permitted counsel to withdraw and appointed Attorney Matthew
Kelly to represent Appellant on his direct appeal.
The trial court ordered that Appellant file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant filed a concise
statement raising two issues concerning the ineffective assistance of trial
counsel. The trial court filed an opinion holding that issues with respect to the
ineffective assistance of counsel are not available for review on direct appeal
and therefore Appellant’s judgment of sentence should be affirmed. Trial Court
Opinion, 5/8/2017, at 1.
In this Court, counsel for Appellant filed both an Anders brief and a
petition to withdraw as counsel.3 Accordingly, the following principles guide
our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
3 On October 11, 2017, this Court filed a memorandum denying Appellant’s
petition to withdraw. Specifically, we concluded that counsel could not have
fulfilled his responsibilities because he failed to request and provide the jury
trial transcript in the certified record. Appellant’s counsel has now provided
the transcript, as well as a new Anders brief and petition to withdraw.
Accordingly, this case is ready for disposition.
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If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s newly-filed petition to
withdraw and Anders brief, we conclude that counsel has complied
substantially with the above requirements.4 Once “counsel has met these
obligations, ‘it then becomes the responsibility of the reviewing court to make
a full examination of the proceedings and make an independent judgment to
4 Appellant has not responded to counsel’s petition to withdraw.
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decide whether the appeal is in fact wholly frivolous.’” Commonwealth v.
Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978
A.2d at 354 n. 5).
According to counsel, the only issue of arguable merit is “[w]hether the
evidence was sufficient to establish that Appellant was guilty of burglary and
theft by unlawful taking.”5 Anders Brief at 1 (unnecessary capitalization
omitted).
We have expressed the following regarding a challenge to the sufficiency
of the evidence produced at trial.
[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.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
5 We recognize that this issue was not identified in Appellant’s concise
statement. However, “[i]n a criminal case, counsel may file of record and
serve on the judge a statement of intent to file an Anders [] brief in lieu of
filing a Statement.” Pa.R.A.P. 1925(c)(4). Accordingly, we conclude that
counsel’s failure to file a new concise statement under these circumstances
does not require us to find this issue waived.
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presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Hecker, 153 A.3d 1005, 1008 (Pa. Super. 2016) (citation
omitted).
Here, Appellant’s counsel challenges the use of the hoodie as a means
to identify Appellant. Anders Brief at 6. In determining whether a particular
identification was reliable, the court
should consider the opportunity of the witness to view the criminal
at the time of the crime, the witness’[s] degree of attention, the
accuracy of his or her prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time
between the crime and the confrontation. The opportunity of the
witness to view the actor at the time of the crime is the key factor
in the totality of the circumstances analysis.
[E]vidence of identification need not be positive and certain
to sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014)
(citations omitted).
In other words, the use of the hoodie was but one factor to consider
with respect to Appellant’s identification. Instantly, Mbaye testified that
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shortly after she heard glass smashing, she saw a person wearing a hoodie
carrying a large TV box. See N.T., 11/3/2014, at 33. Police quickly responded
to the scene, and encountered a person wearing a hoodie. Id. at 58. Mbaye
identified Appellant as the person she saw. Id. at 36. Moreover, Officer Lewis
testified that he saw Appellant near Nardy’s just 25 minutes prior. Id. at 110.
With respect to the hoodie, it was the scent from that particular hoodie that
led to both Nardy’s and the TV itself. Id. at 90-92. This testimony, when
taken together and believed by a jury, is sufficient to sustain Appellant’s
conviction.
Based on the foregoing, we agree with counsel that a challenge to the
sufficiency of the evidence based upon Appellant’s identification and the use
of the hoodie is frivolous. Moreover, we have conducted “a full examination
of the proceedings” and conclude that “the appeal is in fact wholly frivolous.”6
Flowers, 113 A.3d at 1248. Thus, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Stabile joins.
6 In his prior brief, Appellant’s counsel raised two issues concerning the
ineffective assistance of counsel. Absent circumstances not present here,
“claims of ineffective assistance of counsel are to be deferred to PCRA review;
trial courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal.”
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). Accordingly, we
agree with counsel that those issues are frivolous.
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Judge Moulton did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2018
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