Com. v. Mayberry, A. ( 2020 )

J-S45043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE MAYBERRY :
:
Appellant : No. 3566 EDA 2019
Appeal from the Judgment of Sentence Entered August 2, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001279-2018
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 10, 2020
Andre Mayberry (Appellant) appeals from the judgment of sentence
imposed after a jury found him guilty of conspiracy to commit murder.1
Appellant’s counsel (Counsel) also seeks to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review,
we grant Counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
On October 22, 2013, the decedent, Christopher Parker, called
Derrell Daughtry, in order to go out, buy some PCP, and get high.
Unbeknownst to Parker, Daughtry and [Appellant], had been
planning to put “a hit” out on Parker. [Appellant] was dealing
drugs for a man known as “Sheen,” and Parker had pulled a gun
on [Appellant] and stolen drugs from him. Daughtry got high with
Parker, and dropped him off at his house, but made plans to see
him later that night, ostensibly to get high on PCP again.
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1 18 Pa.C.S.A. §§ 903 and 2502.
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Later that evening, Daughtry and his friend, Abdul Rahim, whom
Daughtry referred to as “Dully,”[FN] 4 picked up Parker at his house.
They headed to a location that [Appellant] had instructed
Daughtry to drive to with Parker. As they got underway, Daughtry
sent a text to [Appellant] stating, “we going to get that wet.”[FN] 5
The location bordered a fenced-in cemetery, which adjoined the
driveway of the house where [Appellant] lived. There was a break
in the fence right by [Appellant’s] property.
[FN] 4 Dully was also known as “Salahudin Rahim.”
[FN] 5 “Wet” is the street name for PCP.
While they waited in the parked car, with Parker thinking a drug
delivery was coming, Daughtry got out and walked to a nearby
store. While out of the car, Daughtry called [Appellant], who told
Daughtry that he was unable to see them. Daughtry then sent a
text to Dully saying, “he said to pull up some more.” At around
the same time, Daughtry heard gunshots.
At approximately 12:35 a.m., police received a 911 call of shots
at 6900 15th Street. Upon their arrival at the scene, they observed
Parker in the rear seat behind the driver’s side and who was
unconscious and slumped over. Officers also noticed a cellphone
in his hand or lap and shell casing on the backseat as well as on
the grass outside the rear passenger door. Medics arrived at the
scene and confirmed that Parker was dead. The medical examiner
later determined that Parker had sustained 25 gunshot wounds in
multiple locations of the body. Specifically, Parker sustained two
wounds to the head, three wounds to the neck, about five to the
torso and multiple gunshot wounds to the right upper extremity
and bilateral thighs. Ballistics proved that the bullets that killed
Parker came from two different weapons, that is, a .45-caliber
weapon and .9-millimeter weapon.
Police interviewed an individual who lived in the area, Zina
Lawson, following the 911 call for shots fired. Ms. Lawson told
police that when she was returning to her home at around 12:50
a.m. on October 23, 2013, she saw a white car parked with the
driver’s side open on the left side of 15th Street. Ms. Lawson also
saw a 5’3” black male walking on the side of the grave yard away
from the car. The parties agreed that based on [Appellant’s]
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PennDOT license information certificate [Appellant’s] height was
5’3”.
Trial Court Opinion, 6/25/20, at 2-3 (citations and some footnotes omitted).
Appellant was charged with murder, generally, conspiracy to commit
murder, and various weapon offenses. On April 26, 2019, a jury convicted
Appellant of conspiracy to commit murder.2 On August 2, 2019, the trial court
sentenced Appellant to 20 to 40 years of incarceration. On August 9, 2019,
Appellant filed a post-sentence motion for reconsideration of sentence, which
the trial court denied on November 4, 2019. On November 15, 2019,
Appellant’s counsel filed a motion to withdraw. The trial court granted
counsel’s motion and appointed Counsel to represent Appellant on appeal.
Appellant thereafter filed a timely notice of appeal. Both Appellant and the
trial court have complied with Rule of Appellate Procedure 1925.
On July 28, 2020, Counsel filed an Anders brief, in which he argues that
Appellant’s appeal is frivolous and requests permission from this Court to
withdraw as counsel. Appellant did not file a response to Counsel’s Anders
brief and did not raise any additional claims.
At the outset, we note the specific mandates counsel seeking to
withdraw pursuant to Anders must follow. These mandates and the
significant protection they provide to an Anders appellant arise because a
criminal defendant has a constitutional right to a direct appeal and to counsel
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2The jury could not reach a verdict for the murder charge and found Appellant
not guilty of the various weapon offenses. The trial court declared a mistrial
regarding the murder charge, and the Commonwealth elected not to retry
Appellant.
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on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.
2007).
We have summarized the requirements as follows:
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.
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).
Id. (citations omitted).
Additionally, there are requirements as to the content of an Anders
brief:
[T]he Anders brief that accompanies court-appointed counsel’s
petition to withdraw … 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. When faced with a purported Anders brief, we
may not review the merits of the underlying issues without first deciding
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whether counsel has properly requested permission to withdraw.
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation
omitted). If counsel has satisfied the above requirements, it is then this
Court’s duty to review the trial court proceedings to determine whether there
are any other non-frivolous issues that the appellant could raise on appeal.
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
Instantly, we conclude that Counsel has complied with the requirements
outlined above. Counsel filed a petition with this Court stating that after
reviewing the record, he finds this appeal to be wholly frivolous. Motion
Seeking Permission to Withdraw as Counsel, 7/28/20, ¶ 3. In conformance
with Santiago, Counsel’s brief includes summaries of the facts and procedural
history of the case, and discusses the issues he believes might arguably
support Appellant’s appeal. See Anders Brief at 4-16, 19-33. Counsel’s brief
sets forth his conclusion that the appeal is frivolous and includes citation to
relevant authority. Id. Finally, Counsel has attached to his petition to
withdraw the letter he sent to Appellant, which enclosed Counsel’s petition
and Anders brief. Motion Seeking Permission to Withdraw as Counsel,
7/28/20, Ex. A. Counsel’s letter advised Appellant of his right to proceed pro
se or with private counsel, and to raise any additional issues that he deems
worthy of this Court’s consideration. Id. We thus proceed to review the
merits of Appellant’s claims.
Counsel’s Anders brief raises three issues:
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1. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY
DENYING APPELLANT’S MOTION FOR A MISTRIAL AFTER IT
WAS REVEALED THAT THE COMMONWEALTH DID NOT
PROVIDE BRADY MATERIAL.
2. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY
DENYING APPELLANT’S MOTION FOR RECONSIDERATION
BECAUSE THE COURT DID NOT CONSIDER MITIGATING
CIRCUMSTANCES AND THE SENTENCE IMPOSED UPON
APPELLANT IS EXCESSIVE.
3. THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
FOR EXTRAORDINARY RELIEF TO ARREST JUDGMENT ON THE
CONSPIRACY MURDER CONVICTION BECAUSE THE
COMMONWEALTH FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT APPELLANT FORMED AN AGREEMENT WITH
ANOTHER PERSON THE OBJECT OF WHICH WAS TO SHOOT
AND KILL THE VICTIM.
Anders Brief at 19, 25, 29.
In his first issue, Appellant argues that the trial court abused its
discretion in denying his motion for a mistrial based on a potential Brady3
violation. The trial court summarized Appellant’s argument:
Here, the alleged Brady material consisted of a possible
statement taken by federal authorities from a federal defendant
named Jeron Cartwright. Cartwright was connected to the case
at bar through Tyree Scott, the brother of witness and co-
conspirator Derrell Daughtry. Scott had introduced [Appellant] to
Daughtry years before the murder, and had been friends with both
[Appellant] and Sheen, [Appellant’s] boss in the drug trade.
According to Daughtry, not only were [Appellant] and Sheen
looking for Parker at the time of the killing, but Scott was as well.
On the day of the murder, in addition to tipping off [Appellant]
about the whereabouts of Parker, Daughtry also called Scott.
During the conversation, Daughtry told Scott that Daughtry,
[Appellant], and “Rashim,” were setting up Parker to be
murdered.[FN] 6 According to Scott’s testimony at trial, Scott took
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3 Brady v. Maryland, 373 U.S. 83 (1963).
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the call on a speakerphone, and Cartwright was present and
overheard the conversation. Later, Scott and Cartwright were
indicted by federal authorities for an unrelated drug case, and
according to Scott, Cartwright told the federal authorities about
the telephone call.
[FN] 6While the notes of testimony say, “Rashim,” it is
likely that Scott either said, or was referring to, Abdul
Rahim, the given name of “Dully”, who was driving the
car with Daughtry and Parker on the night of the
murder.
Defense counsel argued that if Scott were being truthful about
Cartwright, then the federal authorities likely had a written
statement from Scott about the telephone call, but that no
statement had ever been provided to him with the discovery in
this case. According to defense counsel, if there was no written
statement from Cartwright, or if there was a statement that
contradicted Scott’s version, that “that could be Brady,” since it
would impeach Scott’s testimony.
Trial Court Opinion, 6/25/20, at 4-5 (citations omitted).
In Brady, the United States Supreme Court held that “suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment. . . .”
Id. at 87. We are guided by the following Brady principles:
[T]he duty to disclose such evidence is applicable even if there
has been no request by the accused, and the duty may encompass
impeachment evidence as well as directly exculpatory evidence.
Furthermore, the prosecution’s Brady obligation extends to
exculpatory evidence in the files of police agencies of the same
government bringing the prosecution.
On the question of materiality, the Court has noted that such
evidence is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. The materiality inquiry is
not just a matter of determining whether, after discounting the
inculpatory evidence in light of the undisclosed evidence, the
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remaining evidence is sufficient to support the jury’s conclusions.
Rather, the question is whether the favorable evidence could
reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict. Thus, there are three
necessary components that demonstrate a violation of the Brady
strictures: the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence
was suppressed by the prosecution, either willfully or
inadvertently; and prejudice ensued.
Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005).
Significant to this appeal, our Supreme Court has clarified that “the
Commonwealth’s Brady obligation does not extend to information that is not
in its possession, but rather is in the possession of the federal government, a
different governing authority.” Commonwealth v. Roney, 79 A.3d 595, 610
(Pa. 2013); see also Commonwealth v. Simpson, 66 A.3d 253, 267 (Pa.
2013) (“While the prosecution is responsible for ensuring the government’s
Brady responsibilities are met as regards evidence under the control of the
police, [ ] we have not held Commonwealth prosecutors responsible under
Brady for information held by federal authorities . . .”).
Further, with respect to materiality, “the mere possibility that an item
of undisclosed information might have helped the defense, or might have
affected the outcome of the trial, does not establish materiality in the
constitutional sense.” Commonwealth v. Miller, 987 A.2d 638, 655 (Pa.
2009) (citation omitted).
After careful review, we conclude that the trial court did not err in
denying Appellant’s motion for mistrial based upon a purported Brady
violation. Appellant was required – but failed – to prove the existence of a
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statement from Cartwright. See Miller, supra at 655 (“the mere possibility
that an item of undisclosed information might have helped the defense . . .
does not establish materiality in the constitutional sense”) (emphasis in
original). Without such specificity, it is not possible to determine whether the
statement is relevant and material, and whether the Commonwealth
possesses the material. Moreover, the trial court concluded, and Appellant
agrees, that the purported evidence is not within the possession or control of
the Commonwealth. Our case law provides that the Commonwealth’s Brady
obligation does not extend to information possessed by federal authorities.
See Roney, 79 A.3d at 610; Simpson, 66 A.3d at 267. Thus, Appellant is
not entitled to relief on this issue.
In his second issue, Appellant challenges the discretionary aspects of
his sentence. We note that “[t]he right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d
127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.
Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
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We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see [Pa.R.A.P.] 720;
(3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170. Whether a particular issue constitutes a substantial question about
the appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
Here, Appellant has met the first three requirements by filing a timely
appeal, preserving the issue in a post-sentence motion, and including a
Pa.R.A.P. 2119(f) statement in his appellate brief. See Anders Brief at 24-25.
Appellant contends that his sentence is excessive because the trial court failed
to consider mitigating circumstances, which we perceive as a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (“This Court has . . . held that an excessive sentence claim – in
conjunction with an assertion that the court failed to consider mitigating
factors – raises a substantial question.”). Because Appellant has presented a
substantial question, we proceed with our analysis.
The sentencing court placed its reasons for Appellant’s sentence on the
record, considered all relevant factors, and had the benefit of a presentence
investigation report (PSI). N.T., 8/2/19, at 18-19; see also Moury, 992 A.2d
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at 171 (when the “sentencing court had the benefit of a [PSI], we can assume
the sentencing court ‘was aware of relevant information regarding defendant’s
character and weighed those considerations along with mitigating statutory
factors’”). The court explicitly took into account “[a]ll of the mitigating
information that’s included in the [PSI] as well as what was presented during
the sentencing hearing.” N.T., 8/2/19, at 19. Moreover, in fashioning
Appellant’s standard range sentence, the court considered all evidence
presented to the jury, the PSI, the sentencing guidelines, all mitigating
factors, the effect on the community and Appellant’s rehabilitative needs. Id.
at 18-19. The court specifically emphasized its concern for the protection of
the public in light of the evidence that Appellant orchestrated a “planned and
brazen assassination.” Id. at 19. Thus, we find no abuse of discretion by the
trial court in fashioning Appellant’s sentence, and conclude Appellant is not
entitled to relief.
In his third issue, Appellant challenges the sufficiency of the evidence.
Appellant avers that the Commonwealth failed to prove beyond a reasonable
doubt that Appellant formed an agreement with another person to shoot and
kill Parker. Appellant contends that because the evidence was insufficient to
sustain his conviction, the trial court should have granted his motion seeking
extraordinary relief in the form of an order arresting judgment of his
conviction. Anders Brief at 29.
Our scope and standard of review of a sufficiency claim is well-settled:
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[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. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. 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. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations
and quotation marks omitted).
A person is guilty of conspiracy to commit a crime if with the intent of
promoting or facilitating its commission, he:
(1) agrees with such other 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; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
18 Pa.C.S.A. § 903(a). Thus, to prove conspiracy, the Commonwealth must
demonstrate that the defendant: “(1) entered 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. Rios, 684 A.2d 1025, 1030 (Pa. 1996); see also 18
Pa.C.S.A. § 903. Once the conspiracy is established beyond a reasonable
doubt, a conspirator can be convicted of both the conspiracy and the
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substantive offense that served as the illicit objective of the conspiracy.
Commonwealth v. Miller, 364 A.2d 886, 887 (Pa. 1976).
Proving the existence of such an agreement is not always easy, and is
rarely proven with direct evidence. Commonwealth v. Spotz, 716 A.2d 580,
592 (Pa. 1998). “An explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the circumstances that attend
its activities.” Commonwealth v. Strantz, 195 A. 75, 80 (Pa. 1937).
Indeed, “[a] conspiracy may be proven inferentially by showing the relation,
conduct, or circumstances of the parties, and the overt acts of alleged
coconspirators are competent as proof that a criminal confederation has in
fact been formed.” Commonwealth v. Kennedy, 453 A.2d 927, 929, 930
(Pa. 1982).
In rejecting Appellant’s sufficiency claim, the trial court stated:
There was equally compelling evidence that [Appellant] planned
and executed the killing of Parker with participation of co-
conspirators. According to Scott, Daughtry said that [Appellant],
Daughtry and a third person, presumably Dully, were “planning to
put a hit out on [Parker].” According to Daughtry, [Appellant]
gave Daughtry instructions on where to take Parker, and told
Daughtry to remain in constant communication with him. The
murder was set up on a street adjoining a fenced-in cemetery,
which in turn, adjoined the driveway to [Appellant’s] house. There
was a break in the fence right by [Appellant’s] property. When
[Appellant] told Daughtry that they needed to move the car up,
Daughtry texted Dully with [Appellant’s] request, at the same time
Daughtry heard the shots. Further, an individual matching
[Appellant’s] description was seen walking away from the car at
around the time of the incident.
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In addition, cellphone evidence strongly corroborated the other
evidence of the conspiracy. The cellphone of Dully, the driver,
was found in the car after the murder, and displayed the text
message from [Appellant] stating, “He said pull up some more,”
corroborating Daughtry’s testimony that [Appellant] had
complained to him that he could not see the car and wanted them
to move. The records from Daughtry’s cellphone showed
numerous calls to [Appellant’s] cellphone in the minutes leading
up to the time of the murder. In addition to the text to Dully to
move the car, the records also showed the text to [Appellant]
before the murder, in which Daughtry notified [Appellant] that
they were on their way with Parker to the kill site, by texting, “we
going to get that wet.”
Finally, the ballistics evidence offered scientific proof that
[Appellant] did not act alone in this case. The uncontested
evidence conclusively showed that two distinct weapons were
used in the shooting: a 45-caliber weapon and a .9 millimeter
weapon. It is, of course, extremely unlikely that a single shooter
used two different weapons to fire 25 bullets into the victim.
Trial Court Opinion, 6/25/20, at 10-12 (citations and footnote omitted).
Viewing all of the evidence admitted at trial in the light most favorable
to the Commonwealth, we agree with the trial court that there was sufficient
evidence for the jury to find that Appellant formed an agreement with another
person to shoot and kill Parker. Thus, Appellant’s third issue lacks merit.
Finally, our independent review reveals no other non-frivolous issues
Appellant could raise on appeal. See Dempster, 187 A.3d at 272. We
therefore grant Counsel’s petition to withdraw and affirm Appellant’s judgment
of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2020
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