Com. v. Bantum, B. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
BRIAN KURT BANTUM, :
:
Appellant : No. 1476 WDA 2017
Appeal from the Judgment of Sentence August 31, 2017
in the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002204-2016
BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 14, 2020
Brian Kurt Bantum (Appellant) appeals from the August 31, 2017
judgment of sentence imposed after a jury convicted him of person not to
possess a firearm, theft by unlawful taking, receiving stolen property, and
disorderly conduct. Counsel for Appellant has filed a petition to withdraw
and 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.
We provide the following background. On the evening of October 5,
2016, Kenton Knepp was drinking with two friends, Jeffrey Cruthers and
Gary O’Shell, at his apartment. N.T., 6/8/2017, at 62-63, 74. Shortly
before 8:00 p.m., Knepp’s next-door neighbor, Appellant, walked by Knepp’s
*Retired Senior Judge assigned to the Superior Court.
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apartment. Knepp invited Appellant inside to spend time with Knepp and his
friends. Id. at 63, 74.
Within a half hour, it became apparent to Knepp that Appellant was
highly intoxicated. Appellant was incoherent and stumbling around Knepp’s
apartment. Appellant knocked over several items from a kitchen shelf,
breaking them, and almost knocked over Knepp’s television. Id. at 63, 75-
76. As a result, Knepp told Appellant to leave. Appellant did not leave, and
Knepp and Cruthers attempted to escort Appellant out of Knepp’s apartment.
Id. at 64, 76-77. As they approached the front door, Appellant attempted to
push back into the apartment and swung his fist at Cruthers. Knepp called
for O’Shell’s help, and the three men were able to push Appellant outside of
the apartment and onto the porch. Id. at 64-65, 77-78.
In doing so, Appellant and Knepp both fell to the ground. Id. at 78.
As Knepp fell, his firearm slipped out of the friction holster on his right hip.
Knepp caught the firearm and placed it next to him as he pushed himself to
standing with both hands. Id. at 68, 77-79, 89, 101. As soon as Knepp
lifted his hand off the firearm to stand up, Appellant reached for the firearm
and placed his hand on it. Id. at 79, 86, 90. Seeing this, Knepp
immediately backed into his apartment, and closed and locked the door.
Once inside, he told O’Shell and Cruthers that Appellant took his firearm and
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called the police.1 Knepp peeked through the door shortly thereafter, and
both Appellant and the firearm were gone. Id. at 66, 79-80, 91-92. Knepp,
O’Shell, and Cruthers remained inside the apartment until police arrived and
did not leave the apartment or porch that evening. Id. at 66-67, 70, 80-81.
Knepp removed the holster from his hip after calling the police. Id. at 82.
Police Officer Fred Wasser responded within minutes of the call and
arrived at Knepp’s apartment at approximately 8:00 p.m. Upon arrival,
Officer Wasser spoke to Knepp, O’Shell, and Cruthers on the porch of
Knepp’s apartment, all of whom appeared visibly afraid. Id. at 106.
Simultaneously, Appellant’s girlfriend was on the porch of Appellant’s home,
attempting to have a conversation with the three men. Id. at 30-31, 107.
Police Officer Brian Miller arrived less than a minute later and spoke briefly
with Knepp. Officers Miller and Wasser then proceeded to Appellant’s home.
Id. at 29, 66, 70, 107-08.
Appellant’s girlfriend told the officers she did not know Appellant’s
location. Id. at 31, 108. She consented to Officer Wasser’s request to
search the residence for Appellant. Officer Miller kept watch outside while
Officer Wasser and a backup responding officer searched the interior of the
apartment for Appellant to no avail. Id. at 31-32, 108-09.
1 Immediately before Knepp called the police, another neighbor, seeing the
altercation on the porch, called the police for assistance. As officers were on
their way, they received a second dispatch, this one based on Knepp’s call,
that a firearm had been taken. N.T., 6/8/2017, at 29, 105.
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Officer Miller walked between Knepp’s and Appellant’s homes, and
found Appellant in the rear of Appellant’s home. Appellant was sitting in a
chair next to the back door. A grill was to his right, within arms-reach.
Officer Miller radioed to Officer Wasser that he had found Appellant. Id. at
32, 109. As Officer Wasser approached the rear yard from inside the house,
Officer Miller ordered Appellant to show his hands. Appellant stood but
failed to comply with Officer Miller’s orders, instead fumbling with his hands
inside his shirt and waistband. Id. at 33. Officer Wasser handcuffed
Appellant from behind. Appellant was angry, oppositional, and attempted to
walk away from Officer Wasser. Officer Wasser notified Appellant that he
was being detained for theft of a handgun and provided him Miranda2
warnings. N.T., 6/8/2017, at 34, 110-12.
Appellant denied any knowledge of a firearm. After patting down
Appellant, Officer Wasser asked Appellant for the location of the firearm.
Appellant appeared highly intoxicated: he repeatedly tried to step away,
gritted his teeth, was unable to follow instructions or stay on a conversation
topic, was thick-tongued, and emanated a strong odor of alcohol. Following
more denials, Appellant ultimately told Officer Wasser, “Yeah, this isn’t good.
I’m going to take you to where the handgun is.” Id. at 34-35, 37, 112-13.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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Still handcuffed, Appellant led Officers Miller and Wasser back to
Knepp’s apartment. Knepp, O’Shell, and Cruthers remained on the porch
while Appellant pointed out various locations within the apartment that he
alleged contained the firearm. None of these locations turned up the
missing firearm. Id. at 35-36, 81, 114-15. Inside the apartment, the
officers located a holster, as well as several magazines for the missing
firearm. The officers seized these items because the firearm was still
missing. Id. at 54.
Appellant was detained in Officer Wasser’s vehicle while Officers
Wasser and Miller continued to search for the missing firearm. At the same
time, neighbors searched their respective backyards for the missing firearm.
Id. at 38-39, 115-17. Officer Wasser ultimately located the firearm under a
tarp that was covering the grill in Appellant’s backyard – the same grill that
was within arms-reach of Appellant when he was first spotted by Officer
Miller. Id. at 39, 55, 118-19.
The firearm was photographed, seized, and made safe. It was fully
loaded, with a live round in the chamber. After securing the firearm, the
officers confirmed that it belonged to Knepp and was the missing firearm.
Id. at 40-41, 83, 119. Though initially the officers planned to return the
firearm to Knepp that evening, it was ultimately retained for testing. No
DNA or fingerprints were found on the firearm. Officer Miller’s fingerprint
was found on the magazine to the firearm from when he handled it while
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preparing paperwork to return the firearm to Knepp that evening. Id. at 42-
44, 57, 84, 120.
Appellant was arrested and charged with person not to possess a
firearm, theft by unlawful taking, receiving stolen property, disorderly
conduct, defiant trespass, public drunkenness, and three counts of
harassment.3 Appellant proceeded to a one-day jury trial on June 8, 2017,
where the aforementioned facts were developed. Additionally, the parties
stipulated that Appellant had a prior drug conviction that rendered him a
person prohibited from possessing a firearm. Id. at 130. Appellant testified
on his own behalf, stating that he did not take Knepp’s firearm that evening
or place it on his grill. At the conclusion of the trial, the jury found Appellant
guilty as indicated above.4
On August 31, 2017, the trial court sentenced Appellant to an
aggregate term of five to ten years of incarceration. On September 5, 2017,
Appellant filed a post-sentence motion, challenging the discretionary aspects
3 One charge of carrying a firearm without a license was dismissed prior to
trial.
4 By simultaneous bench trial, the trial court found Appellant guilty of the
summary offenses of criminal trespass, public drunkenness, and harassment
(as to Knepp and Cruthers), and not guilty of harassment (as to O’Shell).
Order, 6/12/2017.
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of his sentence and the weight of the evidence.5 By order filed September
12, 2017, the trial court denied Appellant’s post-sentence motion.
This timely-filed notice of appeal followed.6 Appellant’s counsel has
filed an Anders brief and petition to withdraw as counsel. Appellant did not
file a response. Accordingly, the following principles guide our review.
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….
5 Although represented by counsel, Appellant also pro se filed a motion to
modify sentence on September 8, 2017. Because Appellant was represented
by counsel, his pro se motion was a nullity.
6 We do not fully recount the tortured procedural history of this case after
Appellant pro se filed a notice of appeal because we have already detailed it
in our several prior memoranda. See Commonwealth v. Bantum, 209
A.3d 492 (Pa. Super. 2019) (unpublished memorandum) (denying prior
counsel’s petition to withdraw and remanding for (1) the trial court to rule
on Appellant’s weight-of-the-evidence claim under the correct standard of
review; (2) new counsel to be appointed for Appellant; and (3) the inclusion
of necessary materials in the certified record); Commonwealth v. Bantum,
221 A.3d 239 (Pa. Super. 2019) (unpublished memorandum) (denying
current counsel’s petition to withdraw for failure to comply substantially with
the technical requirements of Anders, and directing counsel to file an
advocate’s brief or compliant Anders brief, petition to withdraw, and letter
to Appellant advising him of his rights); Commonwealth v. Bantum, 222
A.3d 809 (Pa. Super. 2019) (unpublished memorandum) (same);
Commonwealth v. Bantum, 226 A.3d 624 (Pa. Super. 2020) (unpublished
memorandum) (same); Commonwealth v. Bantum, ___ A.3d ___, 2020
WL 1889115 (Pa. Super. 2020) (unpublished memorandum) (reminding
counsel to file an advocate’s brief or compliant Anders brief). It suffices to
say, the appeal is properly before this Court and is finally ready for review.
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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.
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 …. 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 and unnecessary capitalization omitted). Our Supreme Court has
clarified portions of the Anders procedure as follows.
[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 petition to withdraw and
Anders brief, we conclude that counsel has complied substantially with the
technical requirements set forth above. We first consider the issue raised by
counsel, and then have the responsibility “to conduct a simple review of the
record to ascertain if there appear on its face to be arguably meritorious
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issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
The sole issue arguably supporting an appeal cited by counsel is
whether there was sufficient evidence to sustain Appellant’s convictions
given the lack of DNA or fingerprint evidence from the firearm.7 Anders
Brief at 13-14.8
The standard we apply in reviewing the sufficiency of the
evidence 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 [that of] 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
7 Counsel does not identify which conviction(s) Appellant wanted to
challenge. Because Appellant’s argument is that the Commonwealth failed to
prove he was in possession of the firearm given the lack of DNA or
fingerprint evidence, we construe this as a challenge to his convictions of
person not to possess a firearm, theft by unlawful taking, and receiving
stolen property.
8 We observe that although counsel cited the standard of review for weight
of the evidence in discussing Appellant’s sufficiency-of-the-evidence claim in
his letter to Appellant, he applies the correct standard of review to
Appellant’s sufficiency-of-the-evidence claim in the Anders brief. Compare
Letter to Appellant, 5/4/2020, at 2 (unnumbered) with Anders Brief at 14-
17.
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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.
Commonwealth v. Johnson, 192 A.3d 1149, 1155 (Pa. Super. 2018)
(citation omitted).
Illegal possession of a firearm may be established by
constructive possession. With respect to constructive
possession, this Court has held:
When contraband is not found on the defendant’s
person, the Commonwealth must establish
“constructive possession,” that is, the power to
control the contraband and the intent to exercise
that control. The fact that another person may also
have control and access does not eliminate the
defendant’s constructive possession.... As with any
other element of a crime, constructive possession
may be proven by circumstantial evidence. The
requisite knowledge and intent may be inferred from
the totality of the circumstances.
Commonwealth v. Haskins, [] 677 A.2d 328, 330 ([Pa.
Super.] 1996)[]. Constructive possession is an inference arising
from a set of facts that possession of the contraband was more
likely than not.
Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (some
citations omitted).
In the instant case, to prove Appellant possessed Knepp’s firearm, the
Commonwealth presented circumstantial evidence that Appellant was in
constructive possession of the firearm. Knepp testified that Appellant took
Knepp’s firearm as Appellant was being forcibly removed from Knepp’s
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apartment. Officer Wasser ultimately located the firearm under a tarp that
was covering a grill in Appellant’s backyard – the same grill that was within
arms-reach of Appellant when he was first spotted by Officer Miller upon
responding to the scene. Knepp, Cruthers, and O’Shell did not leave Knepp’s
apartment or porch that evening between the initial altercation and the
finding of the firearm. This testimony made it more likely than not that
Appellant had possessed the firearm. Accordingly, viewed in the light most
favorable to the Commonwealth as verdict winner, the evidence presented
by the Commonwealth was sufficient to establish Appellant’s possession of
Knepp’s firearm, notwithstanding Appellant’s statements to the contrary or
the lack of Appellant’s DNA or fingerprints on the firearm.
Based upon the foregoing, we agree with counsel that a challenge to
Appellant’s convictions based on the sufficiency of the evidence is frivolous.
Moreover, we have conducted “a simple review of the record” and have
found no “arguably meritorious issues that counsel, intentionally or not,
missed or misstated.” Dempster, 187 A.3d at 272.9 Accordingly, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
9 In an earlier Anders brief, prior counsel considered and disposed of a
weight-of-the-evidence claim. Because the trial court had applied the wrong
standard of review in ruling on Appellant’s weight claim, we remanded for,
inter alia, a supplemental opinion ruling on Appellant’s weight claim under
the proper standard of review. See Bantum, 209 A.3d 492 (unpublished
memorandum). The trial court complied by filing a supplemental opinion.
Current counsel does not raise a weight claim in the Anders brief. Following
(Footnote Continued Next Page)
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2020
(Footnote Continued) _______________________
our simple review, we conclude that there is no arguably meritorious weight
claim in this case.
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