Com. v. Costner, T.

J-S69041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

TERRELL COSTNER

Appellant No. 907 EDA 2014

Appeal from the Judgment of Sentence October 23, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0014032-2007

BEFORE: GANTMAN, P.J. , FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JANUARY 22, 2015

Appellant Terrell Costner appeals from the Court of Common Pleas of

Philadelphia County’s (trial court) October 23, 2014, judgment of sentence

imposed following a remand for resentencing. Appellant’s counsel has filed a

petition to withdraw, alleging that this appeal is wholly frivolous, and filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Also,

contemporaneously with the Anders petition, Appellant’s counsel filed a

self-styled “Motion to [sic] For New Trial/ Remand to Trial Court for New

Trial or Alternatively, for an Evidentiary Hearing on a Newly-Evidence [sic]

Claim” (Application for Remand). For the reasons set forth below, we affirm

the judgment of sentence, grant the petition to withdraw, and deny the

Application for Remand.
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The facts underlying this appeal are undisputed. As recently

summarized by a prior panel of this Court in Appellant’s co-defendant’s

appeal:
The victim, Domenico Fagnani, and his wife owned a small
grocery store in the city of Philadelphia. On the evening of April
1, 2005, the victim was unloading boxes from his vehicle in front
of the grocery [store] when he was approached by three young
men. The young men, later identified as [Appellant and his
friends, Tommy Carter] and James Shepard, had spent the
evening playing basketball and smoking marijuana at a
neighborhood playground. The young men spotted Mr. Fagnani
on their walk home. [Appellant] and [Carter] told Shepard that
Mr. Fagnani owned the grocery store and that they were “going
to get [ ] money from the guy.” N.T. Trial, 3/29/12, at 55, 63.
[Appellant] said it would be “easy money” and that the trio
should “strong-arm him.” Id., at 63.
Carter gestured to the other two young men in a manner
that Shepard took to signal, “all right. Come on.” Id., at 67.
The three then surrounded Mr. Fagnani. Realizing what was
about to unfold, Mr. Fagnani grabbed Shepard by the neck in an
attempt to thwart the robbery. As Carter began to flee the
scene, [Appellant] pulled out a .38 caliber revolver and shot
Mr. Fagnani in the chest. See id., at 44-52, 55, 63, and 67.
The young men all fled the scene, leaving Mr. Fagnani laying [in]
the street. Police responded to a radio report of a shooting and
transported Mr. Fagnani to the Hospital of the University of
Pennsylvania. The bullet traveled through Mr. Fagnani’s thyroid
gland and cervical spine before exiting his back. The shooting
rendered Mr. Fagnani paralyzed and comatose for two months.
He then spent another 4½ months in the hospital before
succumbing to complications from the gunshot wound on
October 18, 2005.
The investigation of Mr. Fagnani’s death led police to
Shepard who was arrested in December 2006 for an unrelated
robbery. Detectives questioned Shepard regarding the robbery
and shooting of Mr. Fagnani. Shepard confessed to his
participation and named his two conspirators. Shepard entered
into an agreement with the Commonwealth the terms of which
provided that he would plead guilty to the crimes of robbery and
conspiracy to commit robbery and would testified [sic] truthfully
at trial if required. [Appellant] and Carter were subsequently
arrested in August 2007.

Commonwealth v. Carter, No. 1555 EDA 2013, unpublished memorandum

at 1-2 (Pa. Super. filed July 22, 2014). Following a joint jury trial, Appellant

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and his co-defendant Tommy Carter were convicted of, inter alia, second-

degree murder1 and sentenced to a period of life imprisonment without the

possibility of parole. Appellant thereafter appealed to this Court, arguing

only that his mandatory sentence of life imprisonment without the possibility

of parole was unconstitutional because, at the time he shot and killed

Mr. Fagnani, Appellant was a juvenile. Relying on Miller v. Alabama, 132

S. Ct. 2455 (2012),2 a panel of this Court vacated Appellant’s judgment of

sentence and remanded the case to the trial court for resentencing. See

Commonwealth v. Costner, 81 A.3d 988 (Pa. Super. 2013) (unpublished

memorandum).

On October 23, 2013, the trial court on remand resentenced Appellant

to thirty years to life imprisonment for second-degree murder. Appellant

filed a timely post-sentence motion on October 31, 2013. In his post-

sentence motion, Appellant argued that the verdict was against the weight of

the evidence, and challenged the testimony of James Shepard and the jury’s

credibility and weight determinations. On March 4, 2014, Appellant’s post-

sentence motion was deemed denied by operation of law. See Pa.R.Crim.P.

720(B)(3)(a) (“If the judge fails to decide the [post-sentence] motion within

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1
18 Pa.C.S.A. § 2502(b).
2
The Court in Miller held that “[m]andatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller, 132
S. Ct. at 2460 (emphasis added).

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120 days . . . the motion shall be deemed denied by operation of law.”).

Appellant filed a timely notice of appeal on March 17, 2014.

On April 9, 2014, instead of filing a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, Appellant’s counsel filed a

statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).3

Appellant’s counsel noted Appellant intended to raise issues on appeal that

were frivolous and waived. Specifically, in explaining why Appellant’s

intended issues for appeal were waived, counsel observed:
Because [A]ppellant already litigated a direct appeal and the
instant appeal was filed following a remand and re-sentencing,
[Appellant] cannot raise on appeal issues challenging the validity
of [the jury] verdict; he is limited to issues arising out of the re-
imposition of sentence.

Rule 1925(c)(4) Statement, 4/9/14, at 1 n.1. On May 30, 2014, the trial

court issued a two-page Pa.R.A.P. 1925(a) opinion, recounting the

procedural history of the proceedings.

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3
Rule 1925(c)(4) provides:
In 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. If, upon review of the [Anders] brief, the
appellate court believes that there are arguably meritorious
issues for review, those issues will not be waived; instead, the
appellate court may remand for the filing of a Statement, a
supplemental opinion pursuant to Rule 1925(a), or both. Upon
remand, the trial court may, but is not required to, replace
appellant’s counsel.
Pa.R.A.P. 1925(c)(4).

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On June 24, 2014, Appellant’s counsel filed in this Court a motion to

withdraw as counsel and filed an Anders brief, wherein counsel raises four

issues for our review:
[1.] Did the delay in bringing [A]ppellant to trial violate his
constitutional right to a speedy trial?
[2.] Were the verdicts against the weight of the evidence
because they were predicated on the uncorroborated testimony
of an admitted accomplice?
[3.] Did the trial court commit an abuse of discretion by
prohibiting the cross-examination of Mr. Shepard with the
contents of a letter purportedly written by Mr. Shepard?
[4.] Was the sentence imposed on [A]ppellant on the murder
charge constitute [sic] an abuse of discretion because it was
excessive under the circumstances and the trial court failed to
consider the factors set forth in [Miller] such as [A]ppellant’s
age, life circumstances, educational opportunities, etc.?

Anders/Santiago Brief at 12-13 (footnote omitted). Along with the

Anders petition, Appellant’s counsel also filed the Application for Remand in

which he alleges:
Recently, [A]ppellant learned that the Commonwealth’s only
witness, James Shepard, who implicated [A]ppellant in the
crimes herein and was an accomplice in their commission, has
written letters wherein he implied that he lied to police and at
[A]ppellant’s trial about [A]ppellant’s involvement in the crime
herein to curry favor with the prosecution regarding his own
criminal cases and because [A]ppellant was not a member of his
group.

Application for Remand, 6/24/14, ¶ 5. We begin our discussion with the

Anders petition.

When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). It is well-established that, in requesting a withdrawal,

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counsel must satisfy the following procedural requirements: 1) petition the

court for leave to withdraw stating that, after making a conscientious

examination of the record, counsel has determined that the appeal would be

frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention. Accordingly, we conclude that counsel has satisfied

the procedural requirements of Anders.

We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme 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

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law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.

Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates

that he has complied with the briefing requirements of Santiago. We,

therefore, conclude that counsel has satisfied the minimum requirements of

Anders/Santiago.

Once counsel has met his obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of Appellant’s appeal.

Preliminarily, we are compelled to agree with Appellant’s counsel that

Appellant’s first three issues are waived, because Appellant failed to raise

them in his initial direct appeal.4 As we noted earlier, Appellant already has

had the benefit of a direct appeal, where he challenged only his mandatory

life sentence without the possibility of parole under Miller. Appellant was

successful with respect to that direct appeal, resulting in this Court

remanding the case to the trial court for resentencing. Now, on appeal

following remand, “the only issues reviewable . . . would be challenges to

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4
To reiterate, Appellant asserts a violation of his constitutional right to
speedy trial, claims the verdict was against the weight of the evidence, and
argues the trial court abused its discretion by precluding the cross-
examination of James Shepard (unclear by whom) about the contents of a
letter allegedly written by Shepard.

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the sentence imposed.” Commonwealth v. Anderson, 801 A.2d 1264,

1266 (Pa. Super. 2002) (citation omitted); see Commonweatlh v.

Lawson, 789 A.2d 252, 253-54 (Pa. Super. 2001) (explaining when a case

is remanded to resolve a limited issue, only matters relating to the issue on

remand may be appealed). Put differently, Appellant is prohibited from

“fil[ing] another direct appeal attacking his conviction[,]” id., which is

exactly what Appellant seeks to do here by asserting his first three

arguments. When an appellant seeks to raise claims of error on appeal

following a remand for resentencing, “[a]ny such alleged errors have . . .

been waived by his failure to present them in his first appeal.”

Commonwealth v. Mathis, 463 A.2d 1167, 1169 (Pa. Super. 1983).

Accordingly, Appellant has waived his first three assertions of error

challenging his conviction because he did not raise them in his direct appeal

and his appeal following remand is limited to the issue of sentencing.

In his last assertion of error, Appellant argues the trial court abused its

discretion in sentencing him to thirty years to life imprisonment for second-

degree murder, because the sentence imposed is excessive.

It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa. Super. 2011). Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal. Commonwealth v.

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W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e 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.Crim.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 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

Here, our review of the record reveals that Appellant failed to satisfy

the second prong of the Moury test—issue preservation at sentencing or in

a motion to reconsider and modify sentence. Specifically, there is no

indication in the record that Appellant either challenged the discretionary

aspects of his sentence at resentencing or in a post-sentence motion. See

Commonwealth v. Dodge, 77 A.3d 1263, 1268-69 (Pa. Super. 2013)

(noting Appellant who challenged the discretionary aspects of his re-

sentence properly preserved the challenge by the filing of post-sentence

motion). Accordingly, we conclude Appellant has waived his last argument

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challenging the discretionary aspects of his sentence. See Commonwealth

v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (noting “[i]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”).

We have conducted an independent review of the record and

addressed Appellant’s arguments challenging his conviction and sentence

following a remand. Based on our conclusions above, we agree with counsel

that the issues Appellant seeks to litigate in this appeal are wholly frivolous.

Also, we do not discern any non-frivolous issues that Appellant could have

raised. We, therefore, grant counsel’s petition to withdraw and affirm the

judgment of sentence.

We finally turn to the Application for Remand filed by Appellant’s

counsel, which is predicated on after-discovered evidence under

Pa.R.Crim.P. 720(C). In the Application, Appellant alleges he “recently”

discovered Shepard “lied to police and at [A]ppellant’s trial about

[A]ppellant’s involvement in the crime herein to curry favor with the

prosecution regarding his own criminal cases and because [A]ppellant was

not a member of his group.” Application for Remand, 6/24/14, at ¶ 5.

Specifically, Appellant claims the discovery was the result of certain letters

written by Shepard, which “recently” were sent to him by an acquaintance.

Id. at ¶ 6. Appellant further claims the letters facially “undermine[] the

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reliability of the verdict, [are] not merely relevant for impeachment

purposes, and that had [they] been presented at trial, would have resulted

in a different verdict.” Id. at ¶ 8.

Rule 720, relating to post-sentence procedures and appeal, provides in

pertinent part:
(C) After-Discovered Evidence. A post-sentence motion
for a new trial on the ground of after-discovered evidence must
be filed in writing promptly after such discovery.

Pa.R.Crim.P. 720(C) (emphasis added). The Comment to Rule 720 provides

“any claim of after-discovered evidence must be raised promptly after its

discovery. Accordingly, after-discovered evidence discovered during the

post-sentence stage must be raised promptly with the trial judge at the

post-sentence stage; after-discovered evidence discovered during the direct

appeal process must be raised promptly during the direct appeal process[.]”

Id., cmt. (emphasis added). Here, based on the Application for Remand, it

is unclear when Appellant discovered the after-discovered evidence at issue

for us to determine whether he raised it promptly. Appellant claims that an

acquaintance made him aware of the after-discovered evidence, i.e., the

letters written by Shepard, and in support of this claim, Appellant attached

to the Application for Remand the acquaintance’s letter dated January 1,

2014. The letter enclosed three letters supposedly written by Shepard,

dated February 4, 2010, April 12, 2012, and May 17, 2012, respectively.

The acquaintance’s letter on its face would suggest that Appellant was aware

of the after-discovered evidence (Shepard’s letters) as early as January 1,

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2014, when his post-sentence motion was still pending in the trial court. As

a result, under Rule 720(C) Appellant would have been required to raise the

issue of after-discovered evidence before the trial court. Instead, Appellant

raised this issue by filing in this Court the instant Application for Remand on

June 24, 2014. Nonetheless, because it is unclear when Appellant actually

discovered the after-discovered evidence, we decline to deny the Application

for Remand for failure to file it promptly in the trial court and address the

merits of his after-discovered evidence claim.

With this background in mind, we now turn to the standards governing

after-discovered evidence, which are settled:
To warrant relief, after-discovered evidence must meet a four-
prong test: (1) the evidence could not have been obtained
before the conclusion of the trial by reasonable diligence; (2) the
evidence is not merely corroborative or cumulative; (3) the
evidence will not be used solely for purposes of impeachment;
and (4) the evidence is of such a nature and character that a
different outcome is likely. At an evidentiary hearing, an
appellant must show by a preponderance of the evidence that
each of these factors has been met in order for a new trial to be
warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation

omitted), appeal denied, 958 A.2d 1047 (Pa. 2008). Instantly, we deny

Appellant’s Application for Remand because he failed to meet at least the

second prong of the after-discovered evidence test. In this regard, our

review of the trial transcript reveals the after-discovered evidence Appellant

seeks to introduce is cumulative and corroborative of the evidence offered at

the joint trial, where Shepard was questioned at length about whether

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Shepard wrongfully implicated Appellant and his co-defendant in the murder

of Mr. Fagnani.
[Co-defendant’s counsel]: Judge, what I have in my possession,
a letter given to me. It purports to be the witness on the stand’s
writings of S-H-E-P. And the reason I’m introducing it, as I
indicated by my questioning, there are these two groups of
neighborhoods, 60th and 66th Street. It’s my theory of the
case, your Honor, that one of the reasons, one of the things the
Commonwealth will cite is why would this guy lie about these
guys. It’s our belief that there is this neighborhood issue
between the two neighborhoods.
And in this letter [Shepard] reiterates. He says, “Yo,
what’s popin cuz you can’t stay outta jail 4 nuffin. I’m chillen
tryna touch [sumtyme soon] n***** got me fucked up thinkin
[I’ma] byte they case. I’m on my tip like if you aren’t from my
hood, fuck you all.”
So, it’s my position that this was indicating if you’re not
from his neighborhood, fuck you all. That he doesn’t give a shit
what he says or whatever. Because if you ain’t from my hood,
fuck you. Real talk. That’s what he says.
The [trial court]: So what is that? A motive to –
[Co-defendant’s counsel]: To fabricate against my client.
The [trial court]: Because your client lives in a different
neighborhood?
[Co-defendant’s counsel]: Different neighborhood; correct. And
a reference to this case.

N.T. Trial, 3/29/12, at 96-97.5 Appellant’s trial counsel also cross-examined

Shepard regarding whether there was a rivalry between Shepard’s and

Appellant’s neighborhoods and whether Shepard received a special deal from

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5
Appellant’s counsel confirms this exchange in his Anders brief within the
context of Appellant’s third assertion of error, i.e., whether the trial court
abused its discretion in prohibiting the cross-examination of James Shepard
about the contents of a letter allegedly written by Shepard. Based on the
information provided in the Application for Remand, the letters at issue
appear to raise the same allegations that were raised at Appellant’s joint
trial.

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the Commonwealth for Shepard’s co-operation in the matter sub judice.

See id. at 166-67, 172. Thus, based on our review of the trial transcript

and our resulting conclusion that the after-discovered evidence at issue

merely is cumulative and corroborative, we deny the Application for

Remand.

Judgment of sentence affirmed. Petition to withdraw granted.

Application for Remand denied.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2015

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