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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DIEGO RIVERA, : No. 1963 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, June 13, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0013542-2012,
CP-51-CR-0013543-2012
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED October 5, 2016
Diego Rivera appeals from the judgment of sentence of June 13, 2014,
following his conviction of third-degree murder, robbery, aggravated assault
and related charges, including weapons offenses. Appointed counsel,
Earl G. Kauffman, Esq., has filed a petition to withdraw and accompanying
Anders1 brief. After careful review, we grant the withdrawal petition and
affirm the judgment of sentence.
The facts of this case, as gleaned from the trial transcripts, may be
summarized as follows. On September 1, 2012, Christopher Thompson
* Former Justice specially assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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(“Thompson”) was “hanging out” on the corner of Rosehill and Somerset
streets in Philadelphia selling drugs. (Notes of testimony, 3/11/14 at
122-123.) Thompson testified that he had been “working that corner” for a
couple of months. (Id. at 123.) Thompson was engaged in a drug
transaction with a customer when appellant and an unidentified black man
approached him. (Id. at 125.) Thompson described appellant as
Puerto Rican. (Id.) Appellant and his cohort began cursing at Thompson
and telling him to “get the F off the block.” (Id. at 125, 128.) The black
male punched Thompson while appellant hit him over the head with a
semi-automatic handgun. (Id. at 125-126.) They took Thompson’s money
and drugs and told him to leave. (Id. at 128-129.) One of them told
Thompson, “whoever you are working for, show them I did this to you.”
(Id. at 129.) “Show them I did this to you and tell them we are coming
back in a couple hours.” (Id.) Thompson described appellant as 5’8” to
5’9”, in his early 20s with a short beard and a neck tattoo. (Id. at 131-
132.)
Thompson returned to the area a few hours later. (Id. at 134.)
Thompson was standing on the corner of Rosehill and Somerset, talking to a
girl, when he saw appellant. (Id. at 134-135.) Appellant was walking
toward Thompson, but then crossed the street and walked toward the
Yadi Market on Somerset. (Id. at 135.) Shortly thereafter, Thompson
heard gunshots and hid behind a car. (Id. at 136.) Thompson peeked
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through the car window and saw appellant firing shots. (Id.) Appellant then
ran down Rosehill and jumped into a car. (Id. at 137, 151.) After the
shooting, Thompson observed the victim, Kareem Tomlin, lying on the
ground with blood coming from his head. (Id. at 138.) Thompson gave a
statement to police and picked out appellant as the shooter in a photo array.
(Id. at 139-144.) Thompson also identified appellant at trial. (Id. at 133.)
Yahaira Polanco (“Polanco”) testified that on September 1, 2012, she
was walking up Somerset Street towards her mother’s house when she
heard gunshots. (Id. at 194-197.) The shots were coming from the
direction of Yadi Market. (Id. at 199.) In a statement to police, Polanco
identified appellant as the gunman and picked his photo out of a photo
array. (Id. at 217-219, 241-242.) Polanco told police that when the
shooting started, she grabbed her kids and ran inside her mother’s house.
(Id. at 240-241.) Through her mother’s door window, Polanco could see
appellant firing shots. (Id. at 241.) Afterwards, Polanco went outside and
saw the victim lying on the ground bleeding from his head. (Id.) Polanco
identified the victim as Kareem Tomlin, known as “Reem.” (Id. at 243.)2
2
At trial, Polanco refused to identify appellant as the shooter. She admitted
that she was nervous about testifying and was worried about being a
material witness in a homicide case. (Id. at 208.) Her family still lives in
the neighborhood. (Id.) Polanco’s prior inconsistent statement to police,
identifying appellant as the shooter, was admitted as substantive evidence
under Pa.R.E. 803.1(1)(B), a writing signed and adopted by the declarant.
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Police recovered video surveillance footage from two locations,
Yadi Market and also a private residence on Rosehill Street. (Notes of
testimony, 3/12/14 at 111-112, 118.) The video captured appellant’s
altercation with Thompson as well as appellant running from the scene of the
shooting and getting into a white car. (Id. at 130-146; Commonwealth’s
Exhibit C-40.) The incident with Thompson occurred at 11:21 a.m. on
September 1, 2012, and the shooting outside the grocery store occurred at
4:07 p.m. (Id. at 132, 141.) In addition, security cameras captured
appellant leaving Coleman Hall, a halfway house, on September 1, 2012.
(Id. at 74.) Appellant had a social pass to visit his mother from 10:00 a.m.
to 6:00 p.m. (Id. at 77, 101.) Appellant signed out at 9:47 a.m. and never
came back. After he failed to return to the facility by 6:00 p.m. as
scheduled and was declared an absconder, counselors discovered that
appellant had cleaned out his room. (Id. at 101-102.) The shift supervisor
spoke with appellant’s stepfather who said he had not seen appellant that
day. (Id. at 101.)
On September 4, 2012, the fugitive task force was assigned to locate
and apprehend appellant. (Id. at 158-159.) A wanted poster was issued
with appellant’s picture and information. (Id. at 159-160.) Detectives
located appellant on September 9, 2012, but he fled through a bathroom
skylight. (Id. at 162-163.) On September 11, 2012, appellant was
apprehended at a different location. (Id. at 164-165.) During the ten days
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between the shooting and his apprehension, appellant had covered up the
distinctive tattoo on his neck, “Who Wants Gunplay,” with another tattoo.
(Id. at 82-85, 165-166; Commonwealth’s Exhibits C-34A, C-34B.)
The victim died of a single perforating gunshot wound to his head.
(Notes of testimony, 3/11/14 at 184.) The bullet entered through the back
of his head and exited out the front, causing extensive injuries to his brain.
(Id.) The trajectory of the bullet was from back to front, right to left, and
traveling slightly upward. (Id. at 189-191.) There was no soot or stipple,
meaning that the gun was fired from beyond 2½ feet. (Id. at 188-189.)
Police recovered seven fired cartridge cases (“FCC’s”), all fired from the
same .9 millimeter firearm. (Notes of testimony, 3/12/14 at 51.) Police
also recovered two bullets, which were fired from the same .9 millimeter
firearm. (Id. at 55-56.)3 Police did not find the actual firearm that was
used. (Id. at 56.)
On March 13, 2014, following a three-day jury trial, at case number
0013542 of 2012 (charging appellant with the murder of Kareem Tomlin),
appellant was found guilty of third-degree murder, carrying a firearm
without a license, carrying a firearm in public in Philadelphia, and possession
3
Officer Gregory Welsh, the Commonwealth’s expert in the area of firearms
examination and identification, testified that it is impossible to compare an
FCC to a bullet. (Id. at 56.) Therefore, while the FCCs all came from the
same firearm, and the bullets came from the same firearm, Officer Welsh
could not testify with certainty that both the FCCs and the bullets came from
the same firearm. (Id.)
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of an instrument of crime (“PIC”). (Notes of testimony, 3/13/14 at
152-153.) At case number 0013543 of 2012 (charging appellant with the
robbery of Thompson), appellant was found guilty of robbery, aggravated
assault, criminal conspiracy, carrying a firearm in public in Philadelphia,
carrying a firearm without a license, and PIC. (Id. at 153-154.) On
June 13, 2014, the trial court imposed an aggregate sentence of 30 to
60 years’ incarceration.4
On June 25, 2014, appellant filed an untimely post-sentence motion
which was denied as untimely on June 27, 2014.5 A timely notice of appeal
was filed on July 9, 2014. On October 1, 2014, this court granted trial
counsel’s petition to withdraw and directed the trial court to determine
whether appellant was eligible for court-appointed counsel.
Commonwealth v. Rivera, No. 1963 EDA 2014, per curiam order
(Pa.Super. filed October 1, 2014). The trial court appointed Del Atwell, Esq.,
to represent appellant on appeal, and Attorney Atwell entered his
4
Appellant received 20 to 40 years for third-degree murder, 5 to 10 years
for robbery, and 2½ to 5 years on two of the firearms charges, to run
consecutively for an aggregate sentence of 30 to 60 years’ imprisonment.
(Notes of testimony, 6/13/14 at 38-39.) On the remaining charges,
appellant received either concurrent sentences or no further penalty. (Id.)
5
Pennsylvania Rule of Criminal Procedure 720 states, in relevant part:
“(1) Except as provided in paragraphs (C) and (D), a written post-sentence
motion shall be filed no later than 10 days after imposition of sentence.”
Pa.R.Crim.P. 720(A)(1). Therefore, appellant had until Monday, June 23,
2014, 10 days after sentencing, to file any post-sentence motions.
Appellant’s post-sentence motion was not filed until June 25, 2014, two days
late.
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appearance on October 6, 2014. On November 7, 2014, appellant was
ordered to file a concise statement of errors complained of on appeal within
21 days pursuant to Pa.R.A.P. 1925(b). Appellant failed to comply, but was
given an extension until March 24, 2015. In a letter to Attorney Atwell
dated March 10, 2015, the trial court noted that after he missed the
November 28, 2014 deadline, he was given an extension until February 6,
2015, but failed to file a Rule 1925(b) statement. All transcripts were
available as of July 16, 2014. Despite the trial court’s admonitions,
Attorney Atwell failed to comply with the trial court’s Rule 1925 order. On
April 15, 2015, the trial court filed a Rule 1925(a) opinion, finding all issues
waived. Subsequently, on April 29, 2015, Attorney Atwell filed a
Rule 1925(b) statement together with a motion for extension of time. On
July 31, 2015, this court granted Attorney Atwell’s motion to withdraw and
directed the trial court to appoint substitute counsel to represent appellant in
this appeal.
On September 17, 2015, current counsel, Attorney Kauffman, entered
his appearance. On February 4, 2016, the appeal was dismissed for failure
to file a brief. However, on February 16, 2016, this court granted
appellant’s application to reinstate the appeal and ordered appellant to file a
brief by March 14, 2016. On April 13, 2016, well beyond this court’s
deadline, Attorney Kauffman filed an Anders brief. An application to
withdraw was filed on April 14, 2016. On April 22, 2016, this court ordered
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Attorney Kauffman to provide a copy of the letter sent to appellant informing
him of his right to retain counsel or proceed pro se in this appeal, which was
not attached to his petition to withdraw as required by Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa.Super. 2005). Attorney Kauffman
complied on May 2, 2016, attaching a copy of the letter to appellant
informing him of his rights under Anders.
In his Anders brief, Attorney Kauffman reviewed the following issues
before concluding that the instant appeal was wholly frivolous:
[1.] Whether the appellant’s sentence was an illegal
sentence, and whether the proceedings were
invalid[?]
[2.] Whether the trial court’s jury instruction was
inadequate regarding the cooperating witness
charge to the jury[?]
[3.] Judgment of acquittal[.]
[4.] Whether the verdict was against the sufficiency
of the evidence[?]
[5.] Whether the verdict was against the weight of
the evidence[?]
[6.] Whether trial counsel and first appellate
counsel were ineffective, when the third prong
of the test was not met[?]
Anders brief at 5.
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
presented with an Anders brief, this court may not review the merits of the
underlying issues without first passing on the request to withdraw.”
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Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
(1) provide a summary of the procedural
history and facts, with citations to the
record;
(2) refer to anything in the record that
counsel believes arguably supports the
appeal;
(3) set forth counsel’s conclusion that the
appeal is frivolous; and
(4) state counsel’s reasons for concluding
that the appeal is frivolous. Counsel
should articulate the relevant facts of
record, controlling case law, and/or
statutes on point that have led to the
conclusion that the appeal is frivolous.
Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney Kauffman has complied with all of
the above requirements. In addition, Attorney Kauffman served appellant a
copy of the Anders brief, and advised him of his right to proceed pro se or
hire a private attorney to raise any additional points he deemed worthy of
this court’s review. Appellant has not responded to counsel’s motion to
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withdraw. As we find the requirements of Anders and Santiago are met,
we will proceed to the issues on appeal.6
Appellant’s first issue concerns his sentence of 30-60 years’
imprisonment. As Attorney Kauffman correctly observes, appellant’s
sentence was legal. (Anders brief at 12.) Furthermore, any discretionary
sentencing challenge would be waived for failure to raise it in the trial court.
“Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
6
As described above, Attorney Atwell failed to timely comply with the trial
court’s Rule 1925 order, which is considered per se ineffectiveness of
counsel and ordinarily this court would have to remand for a supplemental
trial court opinion. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal
case was ordered to file a Statement and failed to do so, such that the
appellate court is convinced that counsel has been per se ineffective, the
appellate court shall remand for the filing of a Statement nunc pro tunc
and for the preparation and filing of an opinion by the judge.”);
Commonwealth v. Veon, 109 A.3d 754, 762 (Pa.Super. 2015), appeal
granted in part on other grounds, 121 A.3d 954 (Pa. 2015) (“Where the
trial court does not address the issues raised in an untimely 1925(b)
statement, we remand to allow the trial court an opportunity to do so.”),
citing Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012).
The untimely filing of a Rule 1925(b) statement is considered the equivalent
of a complete failure to file; both represent per se ineffectiveness of trial
counsel. Commonwealth v. Burton, 973 A.2d 428, 432-433 (Pa.Super.
2009) (en banc). Nevertheless, it is not necessary to remand in this case
where all of appellant’s issues are either waived, not cognizable on direct
appeal, or without merit. As the Commonwealth observes, to remand for
the trial court to address claims that counsel has deemed frivolous would
serve little purpose. (Commonwealth’s brief at 15.) In the same vein, to
remand for a Rule 1925(b) statement nunc pro tunc would be pointless
because counsel would simply file a statement of intent to file an Anders
brief under Rule 1925(c)(4). Id.; see Pa.R.A.P. 1925(c)(4) (“In a criminal
case, counsel may file of record and serve on the judge a statement of intent
to file an Anders/McClendon brief in lieu of filing a Statement.”).
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the sentence imposed at that hearing.” Commonwealth v. Hyland, 875
A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 890 A.2d 1057 (Pa.
2005), citing Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 831 A.2d 599 (Pa. 2003). Issues not raised in the
lower court are waived on appeal. Pa.R.A.P. 302(a).
A written post-sentence motion to reconsider
sentence must be filed no later than ten days after
imposition of sentence. Pa.R.Crim.P. Rule [720],
42 Pa.C.S.A. “The failure to do so waives any
complaint concerning sentence that does not involve
the lawfulness of the sentence itself.”
Commonwealth v. Koziel, 289 Pa.Super. 22, 432
A.2d 1031 (1981). The purpose of the rule is to
allow the sentencing court the first opportunity to
modify its sentence. Id. at 24-25, 432 A.2d at
1032.
Commonwealth v. Magnum, 654 A.2d 1146, 1148 (Pa.Super. 1995)
(footnote omitted).
Here, appellant did not present a discretionary sentencing claim to the
trial court, either at the sentencing hearing or in his untimely post-sentence
motion. Therefore, any challenge to the discretionary aspects of appellant’s
sentence would be waived on appeal.7
7
In his Anders brief, Attorney Kauffman incorrectly states that trial counsel
raised a sentencing claim in his untimely post-sentence motion. (Anders
brief at 17.) From our review of the certified record, no such claim was
advanced. (No. 13542-2012, “Motion for Post Trial Relief” filed 6/25/14 at
1-2; Docket #4.) At any rate, appellant’s untimely post-sentence motion is
a legal nullity and does not preserve any issue for appeal. See
Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa.Super. 2007)
(observing that “[a]n untimely post-sentence motion does not preserve
issues for appeal.”) (citation omitted); Commonwealth v. Bilger, 803 A.2d
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The second issue presented for our review is the adequacy of the trial
court’s jury instruction relating to Thompson and potential bias. It was
established at trial that Thompson had two open cases for possession with
intent to deliver. (Notes of testimony, 3/11/14 at 159-160.) Following trial,
during the charging conference, the trial court offered to instruct the jury
that Thompson’s testimony should be received with caution: “Certain
testimony subject to special scrutiny and you should examine closely and
carefully and receive with caution the testimony of Christopher Thompson if
you find that he believed he would receive a benefit from the Commonwealth
for his testimony.” (Notes of testimony, 3/12/14 at 203-204.) Defense
counsel replied, “That’s fine, Your Honor,” and the following day, the trial
court gave the instruction. (Id. at 204; notes of testimony, 3/13/14 at
137-138.) At no time did defense counsel object to the instruction as given
or request a different instruction. Therefore, the matter is waived. See
Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate. All such objections shall be
made beyond the hearing of the jury.”); Commonwealth v. Corley, 638
A.2d 985, 990 (Pa.Super. 1994), appeal denied, 647 A.2d 896 (Pa. 1994)
199, 202 (Pa.Super. 2002), appeal denied, 813 A.2d 835 (Pa. 2002)
(recognizing that post-sentence motion filed more than ten days after
sentence imposed is legal nullity).
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(“A defendant must object to a jury charge at trial, lest his challenge to the
charge be precluded on appeal.” (citations omitted)).
Appellant’s third and fourth issues relate to the sufficiency of the
evidence to support the verdict.8
When considering a challenge to the sufficiency of the evidence, this
court must view the evidence presented in a light most favorable to the
Commonwealth, the verdict winner, and draw all reasonable inferences
therefrom. Commonwealth v. Ketterer, 725 A.2d 801, 803 (Pa.Super.
1999). We must then determine whether the evidence was sufficient to
permit the fact-finder to conclude that all of the elements of the crimes
charged were proven beyond a reasonable doubt. Id. Any question of
doubt is for 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. Id. at 804.
The Commonwealth may sustain its burden of
proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire trial 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.
8
As Attorney Kauffman observes, the trial court did grant judgment of
acquittal as to aggravated assault as a first-degree felony, intent to cause
serious bodily injury to Thompson. (Anders brief at 14; notes of testimony,
3/12/14 at 200-201.) The trial court charged the jury on aggravated assault
as a second-degree felony, causing bodily injury with a deadly weapon.
(Id.)
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Commonwealth v. George, 705 A.2d 916, 918 (Pa.Super. 1998), appeal
denied, 725 A.2d 1218 (Pa. 1998), quoting Commonwealth v. Valette,
613 A.2d 548, 549 (Pa. 1992) (citations and quotation marks omitted).
First, we address the sufficiency of the evidence to sustain appellant’s
conviction for murder in the third degree.
Under 18 Pa.C.S.A. § 2502(c), third-degree
murder encompasses all forms of murder which do
not constitute first-degree murder (intentional
killing) or second-degree murder (killing committed
during the perpetration of a felony). In the context
of third-degree murder, the Commonwealth need not
establish a specific intent to kill, or even a specific
intent to harm the victim. The Commonwealth need
only establish a killing with malice, i.e., the death of
another brought about by an intentional act which
indicates a wickedness of disposition, hardness of
heart, wantonness, cruelty, recklessness of
consequences, or a mind lacking regard for social
duty. Commonwealth v. Young, 494 Pa. 224,
227, 431 A.2d 230, 232 (1981) (malice found where
defendant pointed loaded gun at victim and gun
discharged, even if it were fired accidentally and
defendant meant only to scare the victim);
Commonwealth v. Seibert, 424 Pa.Super. 242,
251, 622 A.2d 361, 365-66 (1993), appeal denied,
537 Pa. 631, 642 A.2d 485 (1994). Malice is
established where the defendant’s intentional act
indicates that the defendant consciously disregarded
an unjustified and extremely high risk that his
actions might cause death or serious bodily harm.
Seibert, supra at 250, 622 A.2d at 364. Malice
may be inferred from all of the circumstances
surrounding the defendant’s conduct, and may be
inferred from the use of a deadly weapon on a vital
part of the body. Commonwealth v. Cruz-
Centeno, 447 Pa.Super. 98, 106, 668 A.2d 536, 540
(1995), appeal denied, 544 Pa. 653, 676 A.2d
1195 (1996).
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Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa.Super. 1998)
(en banc), appeal denied, 739 A.2d 1056 (Pa. 1999).
Instantly, it was established that appellant fired off seven rounds from
a .9 millimeter semi-automatic handgun, striking the decedent in the back of
the head, killing him instantly. The apparent motive for appellant’s actions
was to gain territory for drug sales. Thompson and Polanco both picked
appellant’s photo out of a photo array and identified him as the gunman.
Appellant was also seen on video surveillance cameras fleeing the scene.
Furthermore, appellant purposely eluded police, which is evidence of
consciousness of guilt. See Commonwealth v. Harvey, 526 A.2d 330, 334
(Pa. 1987) (“It is a well-settled rule of law that if a person has reason to
know he is wanted in connection with a crime, and proceeds to flee or
conceal himself from the law enforcement authorities, such evasive conduct
is evidence of guilt and may form a basis, in connection with other proof,
from which guilt may be inferred.” (citations omitted)). Appellant even went
so far as to try to cover up his distinctive neck tattoo, “Who Wants Gunplay.”
Clearly, the evidence was overwhelmingly sufficient to prove that appellant
killed the victim and did so with malice aforethought.
The evidence was sufficient to sustain the jury’s verdict on the other
charges as well, including criminal conspiracy, robbery, and aggravated
assault. Thompson testified that appellant and an unknown accomplice beat
him up and threatened him, telling him to “get the F off the block.”
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Appellant hit him over the head with a semi-automatic handgun. Thompson
testified that they acted in concert; “It was both of them coming at me.”
(Notes of testimony, 3/11/14 at 129.) They also took Thompson’s money
and drugs. (Id. at 128.) Thompson’s account was corroborated by video
footage of the incident.
Regarding the firearms charges, the Commonwealth introduced proof
that appellant was not licensed to carry a firearm. (Notes of testimony,
3/12/14 at 197.) The jury could reasonably infer that appellant possessed a
firearm, an instrument of crime, and did so with intent to employ it
criminally. Therefore, the evidence was also sufficient to support the charge
of PIC. Based on the totality of the evidence, viewed in a light most
favorable to the Commonwealth as verdict winner, together with all
reasonable inferences, we agree with Attorney Kauffman that any sufficiency
challenge would be patently meritless.
In his fifth issue, Attorney Kauffman addresses the weight of the
evidence. However, this issue was not preserved in the trial court.
Accordingly, appellant’s weight claim is waived. Pa.R.Crim.P. 607(A);
Commonwealth v. O’Bidos, 849 A.2d 243, 252 (Pa.Super. 2004), appeal
denied, 860 A.2d 123 (Pa. 2004) (weight of the evidence claims must be
raised via oral, written, or post-sentence motions in the trial court for the
issue to be preserved for appeal (citations omitted)). While a weight claim
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was raised in appellant’s untimely post-sentence motion, that does not
preserve the issue for appeal. See Wrecks, 931 A.2d at 719.
Finally, in his sixth issue for appeal, Attorney Kauffman questions
whether prior counsel were ineffective for failing to file a timely
post-sentence motion and failing to comply with Pa.R.A.P. 1925(b).
(Anders brief at 16-17.) These claims are not cognizable on direct appeal
and must await collateral review. Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002) (defendants should wait until the collateral review phase to raise
claims of ineffective assistance of counsel); Commonwealth v. Holmes, 79
A.3d 562, 576 (Pa. 2013) (reaffirming Grant and holding that, absent
specific circumstances not applicable here, “claims of ineffective assistance
of counsel are to be deferred to PCRA[9] review; trial courts should not
entertain claims of ineffectiveness upon post-verdict motions; and such
claims should not be reviewed upon direct appeal.” (footnote omitted)).
For the reasons discussed above, we determine that appellant’s issues
on appeal are wholly frivolous and without merit or not cognizable on direct
appeal. Furthermore, after our own independent review of the record, we
are unable to discern any additional issues of arguable merit. Therefore, we
will grant Attorney Kauffman’s petition to withdraw and affirm the judgment
of sentence.
9
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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Petition to withdraw granted. Judgment of sentence affirmed.
Ransom, J. joins the Memorandum.
Stevens, P.J.E. concurs in the result.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 10/5/2016
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