Com. v. Wright, A.

J-S46010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ANTHONY WRIGHT

Appellant No. 1918 EDA 2014

Appeal from the Judgment of Sentence June 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000815-2013

BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED AUGUST 12, 2015

Appellant, Anthony Wright, appeals from the June 30, 2014 judgment

of sentence of two and one-half to five years’ imprisonment, followed by a

maximum of five years’ probation, imposed after a jury found him guilty of

one count of robbery as a second-degree felony.1 Contemporaneously with

this appeal, Appellant’s counsel has filed a petition to withdraw and an

Anders brief, stating that the appeal is wholly frivolous.2 After careful

review, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

The trial court summarized the relevant facts as follows.

____________________________________________

1
18 Pa.C.S.A. § 3701(a)(1)(iv).
2
Anders v. California, 386 U.S. 738 (1967).
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On September 21, 2012 at about 1:30am, Tina
Freeman brought her car to a stop underneath a
streetlight on Germantown Avenue to remove a
parking ticket from her windshield. She was
approached by a man who asked, “Can I help you
with that?” This man was later identified by Ms.
Freeman as [Appellant]. Feeling nervous, Ms.
Freeman responded that she did not need help and
quickly attempted to return to the driver’s seat of
her vehicle. At that time, [Appellant] wedged
himself between Ms. Freeman’s car door and her leg
and began pulling at her clothes and hitting her.
[Appellant] hit Ms. Freeman on the left side of her
chest area toward her shoulder and grabbed at her
arms, thereby causing bruises. He also struck the
back of her head and pulled her shirt down. Ms.
Freeman testified that she was afraid [Appellant]
would rape her. Eventually, [Appellant] reached
behind Ms. Freeman to the passenger seat of her car
and grabbed her tote bag, which contained her
phone, makeup, cash, credit cards, driver’s license,
CDs, and an iPod touch engraved with the words
“Happy Birthday Tia.” At trial, Ms. Freeman testified
that [Appellant]’s face was about eight inches from
her during the incident and that she was able to get
a good look at him. She stated that he was wearing
a blue long-sleeved shirt and jeans and that he had
tiny braids.

After their altercation, Ms. Freeman testified
that [Appellant] ran down the street laughing. Ms.
Freeman also testified that nearby there was another
man whom she approached and asked why he had
not helped her. Ms. Freeman described this man as
follows: “darker black skin, longer braids that shot
out, and an apple face, very round cheeks, heavier-
set.” This man was later identified as Bryant Davis.
Shortly after the incident, Ms. Freeman flagged down
a police vehicle. She briefly followed the officers in
an unsuccessful attempt to locate the man who had
robbed her. No report was filed at that time.

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Bryant Davis also testified at trial. Mr. Davis
testified that he went to a bar in the Germantown
area with [Appellant] at about 11:00pm on
September 20, 2012. Mr. Davis stated that he left
the bar between 1:00am and 1:30am, a minute or
so after [Appellant]. Mr. Davis stated that when he
emerged from the bar, he witnessed [Appellant]
running down the street holding an object that
looked like a pocketbook. At this point, Mr. Davis
stated that a woman came up to him on the street in
a panic asking why he did not help her. Mr. Davis
stated he went back in the bar for another thirty
minutes or so before he left. After his departure at
about 2:00am, he spotted [Appellant] standing
outside a Checkers down the street and gave him a
ride. Mr. Davis asked [Appellant] what had
happened, and [Appellant] stated that he had robbed
a lady.

At about 5:40pm later that day[,] Mr. Davis
was pulled over by [p]olice [o]fficer Colin Goshert for
a traffic violation. As he approached the vehicle on
foot, Officer Goshert noticed Mr. Davis dip below his
seat, so he removed him from the vehicle. Mr. Davis
was frisked, and the front area of his car was
searched. A BB gun was recovered underneath his
seat, and a phone and an iPod touch with the
engraving “Happy Birthday Tia” were recovered from
his center console. Mr. Davis was arrested as a
suspect in the robbery of Ms. Freeman and was
questioned with regard to his possession of the
stolen property. He said that he did not know to
whom the items belonged and told officers the story
of what had occurred earlier that morning. He also
made an identification of [Appellant]. Mr. Davis was
eventually charged with receiving stolen property[3];
he was found guilty and was placed on probation for
a period of one year.

____________________________________________

3
18 Pa.C.S.A. § 3925(a).

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Officer Goshert testified that he called “home”
from the recovered cell phone and was able to reach
Ms. Freeman. Officer Goshert requested that Ms.
Freeman come to the station to be interviewed
regarding the robbery earlier that morning. When
Ms. Freeman arrived at the police station, she gave a
statement and was shown a photo array which
included a photo of Mr. Davis. Ms. Freeman did not
make an identification, but testified that in the array
she saw a photo of someone who looked like the
individual who was on the street at the time of the
incident, but not the person who attacked her.
There is no record in any of the police paperwork
that she told this piece of information to the
detective who interviewed her.

On September 24, 2012, Ms. Freeman was
called back to the police station to view another
photo array. This photo array included a photo of
both [Appellant] and Bryant Davis. Ms. Freeman
identified [Appellant] as the individual who robbed
her. Detective Daphne Smith, the officer who
showed Ms. Freeman the second photo array, also
indicated that Ms. Freeman pointed out Mr. Davis as
the man whom she approached on the street that
evening, but this again was not recorded. Ms.
Freeman also attended a preliminary hearing on
October 31, 2012. At the hearing she was not
permitted to see [Appellant] and was required to
participate in a prison lineup, where Ms. Freeman
identified [Appellant] as her assailant. Ms. Freeman
also made an in-court identification of [Appellant] at
the rescheduled preliminary hearing on January 17,
2013 and identified [Appellant] at trial as the man
who robbed her. Ms. Freeman indicated that she
was 99% sure of her identification in the photo array
and that she was 100% sure of her in-person
identification of [Appellant].

The Commonwealth also presented testimony
from Officer Joseph Cahill, who arrested [Appellant]
on October 11, 2012. Officer Cahill described
[Appellant] as five foot seven, about 140 pounds,
and having small cornrows that were close to the

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back of his head and neck. The Commonwealth also
presented testimony from Detective Bill Urban, who
conducted the lineup and testified to Ms. Freeman’s
identification of [Appellant]. Detective Urban
testified that Ms. Freeman identified [Appellant] from
the lineup without hesitation.

[Appellant] called Ikea Nalley, [Appellant]’s
girlfriend, as an alibi witness. Ms. Nalley testified
that she was watching movies with [Appellant] from
8:00pm or 9:00pm until midnight on the evening of
September 20, 2012. She said that she remembered
that day in particular because it was their
“anniversary day,” and they celebrated this day each
month by spending time together. Ms. Nalley stated
that she and [Appellant] went to sleep around
midnight that evening and that when she awoke at
around 3:00am [Appellant] was still asleep. Ms.
Nalley testified that she would have been aware if
[Appellant] left at any point because, “I sleep on
him.”

Ms. Nalley’s credibility was called into question
by the Commonwealth on various occasions. First,
the Commonwealth put a witness on the stand for
rebuttal, Officer Joseph Czepiel, to testify that the
address at which Ms. Nalley stated she and
[Appellant] were located on the evening of the
incident did not exist. Ms. Nalley later made a
correction to the address on surrebuttal by stating
that she had made a mistake and that she only
resided at that home for “maybe a month.” There
was also question as to when and to whom Ms.
Nalley first alerted any defense attorney or law
enforcement officer that she was with [Appellant] on
the night in question. Ms. Nalley claimed that she
told an investigator who was hired by [Appellant]’s
former attorney about the alibi, but she was not
interviewed by a detective until approximately one
week before trial. Assistant District Attorney Omar
Graham testified that he handled the preliminary
hearing on January 17, 2013. He remembered that
Ms. Nalley was not sequestered at that hearing and
that Ms. Freeman reported to him that Ms. Nalley

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and people with her were making faces at Ms.
Freeman and were acting in a manner which
intimidated Ms. Freeman. As a result, the [trial]
[j]udge issued an order requiring Ms. Nalley to stay
away from the complaining witness.

Trial Court Opinion, 11/18/14, at 1-6 (quotations in original, citations

omitted).

By criminal information filed on January 24, 2013, the Commonwealth

charged Appellant with one count each of robbery as a first-degree felony,

theft by unlawful taking, receiving stolen property, simple assault, and

recklessly endangering another person.4 On June 30, 2014, after a jury

trial, the jury found Appellant guilty of robbery as a second-degree felony, a

lesser-included offense. The jury found Appellant not guilty of robbery as a

first-degree felony. The Commonwealth nolle prossed the remaining

charges. That same day, the trial court sentenced Appellant to two and one-

half to five years’ imprisonment, followed by a maximum of five years’

probation. Appellant did not file a post-sentence motion. On July 7, 2014,

Appellant filed a timely notice of appeal.5

In his Anders Brief, counsel has raised the following issue for our

review.

____________________________________________

4
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 3925(a), 2701, and 2705,
respectively.
5
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.

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Was the evidence sufficient to support [A]ppellant’s
conviction for robbery?

Anders Brief at 3.

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

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

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

[W]e hold that in 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, supra at 361.

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

meet the following obligations to his or her client.

Counsel also must provide a copy of the Anders
brief to his client. Attending the brief must be a
letter that advises the client of his right to: (1)
retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points

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that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel
in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,

“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).6

____________________________________________

6
Speaking for myself only, I disagree with Flowers’ interpretation of case
law to impose a duty on this Court, when reviewing an Anders brief, to
comb the record for issues of arguable merit that counsel did not raise. See
Commonwealth v. King, 57 A.3d 607, 633 n.1 (Pa. 2012) (Saylor, J.,
concurring) (discussing the precedent for a special concurrence by the
author of the majority opinion); Flowers, supra.

In introducing this Court’s duty of independent review, the majority in
Flowers acknowledged, “[n]either the Pennsylvania Supreme Court nor an
en banc panel of this Court has explicitly discussed this issue.” I agree with
Judge Strassburger’s dissent in Flowers, explaining that our Supreme
Court’s decisions do not require this approach. Flowers, supra at 1251-
1252 (Strassburger, J., dissenting). Further, this approach causes disparate
treatment of criminal defendants, with this Court acting as appellate counsel
when counsel seeks to withdraw, but not when counsel does not seek to
(Footnote Continued Next Page)

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In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal. Third, counsel concluded, “this appeal would be wholly

frivolous.” Anders Brief at 16. Lastly, counsel has complied with the

requirements set forth in Millisock. As a result, we proceed to conduct an

independent review to ascertain if the appeal is indeed wholly frivolous.

The sole issue counsel raises on Appellant’s behalf is the sufficiency of

the evidence to support the robbery conviction.7 Anders Brief at 13. We

begin by noting our well-settled standard of review. “In reviewing the

sufficiency of the evidence, we consider whether the evidence presented at

_______________________
(Footnote Continued)

withdraw. Id. at 1252 (Strassburger, J., dissenting); see also
Commonwealth v. Koehler, 914 A.2d 427, 438 (Pa. Super. 2006)
(explaining “it is not this Court’s duty to become an advocate for an
appellant and comb through the record to assure the absence of trial court
error[]”), appeal denied, 961 A.2d 858 (Pa. 2008). Moreover, a review by
this Court for all potential issues renders the requirement of counsel to
identify issues arguably supporting an appeal and the opportunity afforded
to the appellant to raise issues pro se mere superfluities. See
Commonwealth v. Thomas, 511 A.2d 200, 204 (Pa. Super. 1986). For
these reasons, I disagree with Flowers. However, we are constrained to
apply it. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super.
2006) (noting that a panel of this Court cannot overrule a prior decision of
this Court), appeal denied, 946 A.2d 686 (Pa. 2008), cert. denied, 555 U.S.
881 (2008).
7
Appellant did not respond to counsel’s petition to withdraw or raise any
additional issues for our review.

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trial, and all reasonable inferences drawn therefrom, viewed in a light most

favorable to the Commonwealth as the verdict winner, support the jury’s

verdict beyond a reasonable doubt.” Commonwealth v. Patterson, 91

A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.

Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its

burden by wholly circumstantial evidence and 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. Watley, 81

A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate

court, we must review “the entire record … and all evidence actually

received[.]” Id. (internal quotation marks and citation omitted). “[T]he

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. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation

omitted), appeal denied, 99 A.3d 925 (Pa. 2014). “Because evidentiary

sufficiency is a question of law, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,

135 S. Ct. 145 (2014).

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Here, Appellant was convicted of robbery as a second-degree felony.

“A person is guilty of robbery if, in the course of committing a theft, he …

inflicts bodily injury upon another or threatens another with or intentionally

puts him in fear of immediate bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(iv).

Appellant presents two challenges to the sufficiency of the evidence.

Specifically, he argues that the Commonwealth failed to present sufficient

evidence establishing that he committed the robbery or that he caused, or

threatened, bodily injury to Freeman. Viewing the evidence in the light most

favorable to the Commonwealth, as the verdict winner, we conclude there

was ample evidence to support Appellant’s conviction for robbery.

First, we conclude there was sufficient evidence to identify Appellant

as the perpetrator of the robbery. This Court has previously held that a

positive identification by one eyewitness is satisfactory to overcome a

challenge to the sufficiency of the Commonwealth’s proof of identity. See

Commonwealth v. Patterson, 940 A.2d 493, 502 (Pa. Super. 2007)

(concluding the evidence was sufficient where “the complainant testified

positively and without qualification that [the defendant] perpetrated the

offenses[]”), appeal denied, 960 A.2d 838 (Pa. 2008), citing

Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa. Super. 1978). Here,

Freeman, the complainant, testified that on September 21, 2012, between

1:00 and 1:30 a.m., after she pulled her vehicle over to remove a parking

ticket from her windshield, Appellant approached her and asked if she

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needed help. N.T., 4/28/14, at 9-12. Appellant then assaulted Freeman,

took her tote bag from the passenger’s side of her vehicle, and fled down

the street on foot. Id. at 12-21. Freeman testified that she had a clear

view of Appellant’s face during the attack, and she later identified him as the

assailant in a photo array, a prison lineup, at the preliminary hearing, and at

trial. Id. at 20, 34, 36-37. At trial, Freeman stated that she was “100

percent sure” that Appellant was “absolutely the person that attacked me in

my car.” Id. at 38. Freeman’s unequivocal identification of Appellant as the

assailant is sufficient evidence to enable the jury to conclude beyond a

reasonable doubt that Appellant committed the robbery. See Patterson,

supra.

The defense presented one alibi witness, Ikea Nalley, Appellant’s

girlfriend. She testified that she and Appellant fell asleep around midnight

while watching movies on the night in question, which she remembered

because the 20th of each month was their anniversary night. N.T., 4/28/14,

at 134-135. She further stated that she woke up around 3:00 a.m., saw

Appellant still asleep, and went back to bed. Id. at 135. In light of the

testimony of Freeman and Davis, to whom Appellant admitted he committed

the robbery, the jury was free to reject Nalley’s proffered alibi and conclude

Appellant was guilty of robbery beyond a reasonable doubt. See Orie,

supra. We will not reweigh the evidence. Id.

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Next, we conclude there was sufficient evidence that Appellant

threatened to, and actually did, inflict bodily injury on Freeman. The “bodily

injury” required to prove second-degree robbery is defined as “[i]mpairment

of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301; see also

Commonwealth v. Thomas, 546 A.2d 116, 118 (Pa. Super. 1988), appeal

denied, 554 A.2d 509 (Pa. 1989). Here, Freeman testified that Appellant

attacked her when she tried to retreat into her car as he approached her.

He pushed her into the vehicle, pulling at her clothes and hitting her in the

chest and head. N.T., 4/28/14, at 12-17. Appellant struck Freeman at least

three times in the chest and multiple times in the back of the head with a

closed fist. Id. at 14, 17. Freeman sustained defensive bruises to her arms.

Id. at 15. During the attack, Appellant pinned Freeman down so that she

could not move her legs. Id. at 16. Freeman explained that she thought

Appellant was attempting to rape her because he was trying to remove her

clothes and position her on her back in the car. Id. at 18. The struggle

lasted for one to two minutes before Appellant grabbed Freeman’s tote bag

from the car and fled on foot. Id. at 19-20. This evidence is sufficient to

enable the jury to conclude that Appellant inflicted bodily injury on Freeman

beyond a reasonable doubt. See Watley, supra.

Based on the foregoing, we agree with counsel that this appeal is

without merit, and the Commonwealth produced sufficient evidence for the

jury to find Appellant guilty of robbery beyond a reasonable doubt. Further,

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after conducting an independent review of the record, we conclude there are

no additional, non-frivolous issues overlooked by counsel. Flowers, supra

at 1250. As a result, we agree with counsel’s assessment that this appeal is

wholly frivolous. Therefore, we affirm the June 30, 2014 judgment of

sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2015

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