Com. v. Warren, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEITH WARREN :
:
Appellant : No. 691 EDA 2017
Appeal from the Judgment of Sentence January 27, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008734-2015,
CP-51-CR-0008736-2015, CP-51-CR-0008752-2015,
CP-51-CR-0008754-2015, CP-51-CR-0008756-2015,
CP-51-CR-0008758-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 27, 2018
Appellant, Keith Warren, appeals from the judgment of sentence
entered in the Philadelphia Court of Common Pleas, following his jury trial
convictions for criminal attempt (first-degree murder), aggravated assault,
possession of an instrument of crime (“PIC”), conspiracy, and persons not to
possess a firearm.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On June 22, 2015, Basil Elliot and two other men attacked Co-defendant.
Later that day, Co-defendant convinced Appellant to use Co-defendant’s
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1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 907(a), 903, 6105(a)(1), respectively.
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shotgun to exact revenge on Mr. Elliot. Appellant fired the shotgun
numerous times on a crowded street and injured seven people. Appellant
then fled through a vacant lot, where police later recovered the shotgun.
Police traced the shotgun to Co-defendant’s brother, who purchased the
shotgun for Co-defendant. At trial, witnesses testified that Appellant and
Co-defendant were friends and often frequented the block where the
shooting occurred. Witnesses also identified Appellant as the person who
used the shotgun on the day of the shooting. On November 10, 2016, a jury
convicted Appellant of seven counts each of criminal attempt (first-degree
murder), aggravated assault, and PIC, and one count each of conspiracy and
persons not to possess a firearm. The court sentenced Appellant to an
aggregate term of 100 to 200 years’ imprisonment on January 27, 2017.
On February 16, 2017, Appellant timely filed a notice of appeal. On
February 22, 2017, the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After the
court granted multiple extensions of time, on May 23, 2017, counsel filed a
statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
On June 28, 2017, counsel filed his Anders brief and motion to withdraw.
As a preliminary matter, appellate counsel seeks to withdraw his
representation 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 (2009). Anders and Santiago require counsel to: 1)
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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; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a conscientious review of the record and
concluded the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the withdrawal petition, the brief, and a letter explaining
Appellant’s right to proceed pro se or with new privately-retained counsel to
raise any additional points Appellant deems worthy of this Court’s attention.
In his Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel refers to facts in the record that might arguably
support the issues raised on appeal and offers citations to relevant law. The
brief also provides counsel’s reasons for concluding that the appeal is
frivolous. Thus, counsel has substantially complied with the requirements of
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Anders and Santiago.
Appellant has filed neither a pro se brief nor a counseled brief with
new privately-retained counsel; the issue raised in the Anders brief is:
WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT
THAT COULD BE RAISED ON DIRECT APPEAL PRESENTLY
BEFORE THIS COURT AND WHETHER THE APPEAL IS
WHOLLY FRIVOLOUS?
(Anders Brief at 3).
Our standard and scope of review in this case are as follows:
When examining a challenge to the sufficiency of the
evidence:
The standard we apply…is whether viewing all the
evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond
a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none
of the evidence.
This standard is equally applicable in cases where the
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evidence is circumstantial, rather than direct, provided
that the combination of evidence links the accused to the
crime beyond a reasonable doubt.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),
appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations,
quotation marks, and emphasis omitted).
Appellant argues the Commonwealth’s evidence of identification failed
to establish beyond a reasonable doubt that Appellant fired the shotgun on
the day of the shooting. Appellant submits the evidence was insufficient to
sustain his convictions. Appellant avers counsel inadequately cross-
examined the Commonwealth’s witnesses, which resulted in ineffective
assistance of counsel. For the following reasons, we cannot agree.
“A person commits an attempt when with intent to commit a specific
crime, he does any act which constitutes a substantial step towards the
commission of the crime.” 18 Pa.C.S.A. § 901(a).
A person may be convicted of attempted murder if he
takes a substantial step toward the commission of a killing,
with the specific intent in mind to commit such an act.
See 18 Pa.C.S.A. §§ 901, 2502. The substantial step test
broadens the scope of attempt liability by concentrating on
the acts the defendant has done and does not any longer
focus on the acts remaining to be done before the actual
commission of the crime. The mens rea required for first-
degree murder, specific intent to kill, may be established
solely from circumstantial evidence. [T]he law permits the
fact finder to infer that one intends the natural and
probable consequences of his acts.
Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal
denied, 600 Pa. 760, 967 A.2d 958 (2009) (most internal citations and
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quotation marks omitted).
The Crimes Code defines aggravated assault as follows:
§ 2702. Aggravated assault
(a) Offense defined.―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;
* * *
18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is defined as “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S.A. § 2301. The Commonwealth
need not prove specific intent in this context if the victim suffers serious
bodily injury. Commonwealth v. Nichols, 692 A.2d 181 (Pa.Super. 1997).
Possessing instruments of crime is defined as:
§ 907. Possessing instruments of crime
(a) Criminal instruments generally.―A person
commits a misdemeanor of the first degree if he possesses
any instrument of crime with intent to employ it criminally.
* * *
(d) Definitions.―As used in this section, the following
words and phrases shall have the meanings given to them
in this subsection:
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“Instrument of crime.” Any of the following:
(1) Anything specially made or specially adapted for
criminal use.
(2) Anything used for criminal purposes and
possessed by the actor under circumstances not
manifestly appropriate for lawful uses it may have.
18 Pa.C.S.A. § 907. For purposes of Section 907, the Commonwealth must
prove: (1) the accused’s possession of an object that is an instrument of
crime, and (2) the accused’s intent to use the object for a criminal purpose.
In re A.C., 763 A.2d 889, 890 (Pa.Super. 2000).
Section 903(a)(1) of the Crimes Code provides:
§ 903. Criminal Conspiracy
(a) Definition of conspiracy.—A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation
to commit such crime;
* * *
18 Pa.C.S.A. § 903(a)(1). To sustain a conviction for criminal conspiracy,
the Commonwealth must establish the defendant: 1) entered into an
agreement to commit or aid in an unlawful act with another person or
persons; 2) with a shared criminal intent; and 3) an overt act was done in
furtherance of the conspiracy. Commonwealth v. Jones, 874 A.2d 108,
121 (Pa.Super. 2005). Additionally:
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Circumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the
circumstances surrounding such conduct may create a
“web of evidence” linking the accused to the alleged
conspiracy beyond a reasonable doubt. An agreement can
be inferred from a variety of circumstances including, but
not limited to, the relation between the parties, knowledge
of and participation in the crime, and the circumstances
and conduct of the parties surrounding the criminal
episode. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.
Id. at 121-22.
The essence of a criminal conspiracy is the common
understanding that a particular criminal objective is to be
accomplished. Mere association with the perpetrators,
mere presence at the scene, or mere knowledge of the
crime is insufficient. Rather, the Commonwealth must
prove that the defendant shared the criminal intent, i.e.,
that the [defendant] was an active participant in the
criminal enterprise and that he had knowledge of the
conspiratorial agreement. The defendant does not need to
commit the overt act; a co-conspirator may commit the
overt act.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002),
appeal denied, 569 Pa. 701, 805 A.2d 521 (2002) (internal citations and
quotation marks omitted) (emphasis added). Nevertheless, circumstances
such as an association between alleged conspirators, knowledge of the
commission of the crime, presence at the scene of the crime, and/or
participation in the object of the conspiracy, are relevant to prove a
conspiracy, when “viewed in conjunction with each other and in the context
in which they occurred.” Id.Section 6105 of the Crimes Code provides:
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§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(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.
18 Pa.C.S.A. § 6105(a)(1).
“[A]s a general rule, a petitioner should wait to raise claims of
ineffective assistance of trial counsel until collateral review.”
Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002).
“[A]ny ineffectiveness claim will be waived only after a petitioner has had
the opportunity to raise that claim on collateral review and has failed to avail
himself of that opportunity.” Id. “[Thus], a claim raising trial counsel
ineffectiveness will no longer be considered waived because new counsel on
direct appeal did not raise a claim related to prior counsel’s ineffectiveness.”
Id.Our Supreme Court has recognized two very limited exceptions to the
general rule in Grant regarding the appropriate timing for review of
ineffective assistance of counsel claims:
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial
counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration
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best serves the interests of justice; and we hold that trial
courts retain their discretion to entertain such claims.
Second, with respect to other cases and claims…where the
defendant seeks to litigate multiple or prolix claims of
counsel ineffectiveness, including non-record-based claims,
on post-verdict motions and direct appeal, we repose
discretion in the trial courts to entertain such claims, but
only if (1) there is good cause shown, and (2) the unitary
review so indulged is preceded by the defendant’s knowing
and express waiver of his entitlement to seek PCRA review
from his conviction and sentence, including an express
recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the
PCRA.
Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64
(2013) (internal citations and footnotes omitted) (emphasis added).
Instantly, Appellant fired Co-defendant’s shotgun numerous times on a
crowded street, with the intent to enact revenge on Mr. Elliot. Appellant
ultimately injured seven people. Witnesses testified at trial that Appellant
and Co-defendant frequented the block where the shooting occurred and
identified Appellant as the shooter. A jury convicted Appellant of seven
counts each of criminal attempt (first-degree murder), aggravated assault,
and PIC, and one count each of conspiracy and persons not to possess a
firearm.
The Commonwealth presented sufficient evidence to support
Appellant’s convictions. Appellant used Co-defendant’s shotgun and caused
serious bodily harm to seven people in the process of shooting Mr. Elliot.
See 18 Pa.C.S.A. §§ 2702(a)(1), 2301, 907, 903; Jones, supra; Nichols,
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supra; In re A.C., supra. The jury could reasonably infer from Appellant’s
actions that he intended the natural and probable consequences of his act.
See 18 Pa.C.S.A. § 901(a); Jackson, supra. Additionally, at trial, counsel
stipulated Appellant was a person not to possess a firearm. See 18
Pa.C.S.A. § 6105(a)(1). Viewed in the light most favorable to the
Commonwealth, there was sufficient evidence to find every element of
Appellant’s challenged convictions beyond a reasonable doubt. See Orr,
supra.Regarding Appellant’s challenge to counsel’s effectiveness, neither
Holmes exception applies to Appellant’s case as his ineffectiveness claims
are not so apparent from the record, nor has he waived his right to seek
collateral review. See Holmes, supra. Absent these exceptions, the
general rule in Grant applies. Pursuant to Grant, we dismiss Appellant’s
ineffectiveness of counsel claim(s) but do so without prejudice to allow
Appellant to challenge counsel’s effectiveness in a timely petition for
collateral relief. See Grant, supra. Following our independent review of
the record, we conclude the appeal is otherwise wholly frivolous. See Palm,
supra. Accordingly, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/18
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