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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ABUKAR OMAR JAMALE
Appellant No. 605 WDA 2016
Appeal from the Judgment of Sentence July 29, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s):
CP-25-CR-0003559-2014
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 21, 2017
Abukar Omar Jamale appeals from the judgment of sentence of thirty
to sixty months imprisonment that was imposed after a jury convicted him
of carrying an unlicensed firearm and false identification to a law
enforcement official. Appellant also was convicted of driving without a
license. Counsel has filed a petition to withdraw from representation and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
counsel’s petition to withdraw and affirm.
The above delineated charges were instituted against Appellant based
upon the following events. At approximately 10:30 p.m. on November 6,
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2014, Erie Police Officers Ira Bush and Sean Bogart observed a Ford Explorer
with a shredded tire driving on Fairmont Parkway in Erie. Sparks and smoke
were emanating from the tire wheel. The officers pulled alongside of the
vehicle and attempted to get the attention of the driver, Appellant, who
ignored them. After about six blocks, Officers Bush and Bogart stopped the
Explorer. Appellant was the sole occupant of the vehicle, and police
observed him bend over and reach underneath his seat as they approached.
Officer Bush informed Appellant that he was driving with a flat tire. After
Appellant responded that he was on his way to fill the tire with air, Officer
Bush said that the tire was shredded and incapable of being inflated.
Officer Bush then asked Appellant for his name. Appellant replied that
it was Fara Sala, and he gave police a driver's license bearing that name.
Appellant was asked to exit the car, and, when he did so, police observed a
.22 caliber firearm on the floor underneath the driver's seat. Appellant then
admitted that Abukar Jamale was his correct name, and he blurted out that
he found the gun that was located in the Explorer. Police ascertained that
Appellant did not have a valid driver's license or a license for the gun in
question.
On May 15, 2015, a jury convicted Appellant of the above-mentioned
charges, and, on July 29, 2015, he received a standard range sentence,
given his prior record score of three, of thirty to sixty months imprisonment
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for the firearms violation. A concurrent sentence was imposed on the false
identification charge.
Appellant did not file a post-sentence motion. He filed a direct appeal
on August 31, 2015, which we quashed as untimely filed. Appellant
thereafter presented a motion seeking reinstatement of his appellate rights.
Counsel was appointed, and the motion was granted on on March 29, 2016.
This timely appeal followed.
As noted, counsel has moved to withdraw. Since we do not consider
the merits of an issue raised in an Anders brief without first reviewing a
request to withdraw, we now address counsel’s petition to withdraw.
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).
In order to be permitted to withdraw, counsel must meet three procedural
requirements: 1) file a petition for leave to withdraw and state that, after
making a conscientious examination of the record, counsel has concluded
that the appeal is frivolous; 2) provide a copy of the Anders brief to the
defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court’s attention. Id.
Counsel's motion to withdraw indicates that she reviewed the record
and determined that this appeal is frivolous. Counsel mailed a copy of the
motion to withdraw and the brief to Appellant. A letter to Appellant is
attached to the motion to withdraw. In that document, counsel advised
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Appellant that she examined his case and concluded that the direct appeal
was frivolous. Counsel also told Appellant he had the right to retain new
counsel or to proceed pro se raising any points that he wanted. The petition
to withdraw and Anders brief were enclosed with the letter. Thus, the
procedural aspects of Anders are satisfied.
We now examine the briefing requirements when counsel seeks to
withdraw on direct appeal. Pursuant to Santiago, an Anders brief 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.
Appellant's brief satisfies the mandates of Santiago. It sets forth the
procedural and factual history of this matter. Counsel presents a sufficiency
argument on appeal and then establishes why such a claim is frivolous and
provides legal citation for her position. Thus, counsel has complied with the
requirements of Anders/Santiago.
We now proceed to examine the issue presented: "Whether the
evidence was sufficient to find the Appellant guilty of firearms not to be
carried without a license and false identification to law enforcement?"
Appellant's brief at 3.
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Our standard of review is settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Scott, 146 A.3d 775, 777 (Pa.Super. 2016).
Appellant first challenges his conviction under 18 Pa.C.S. § 6106(a).
With exceptions not here applicable, that section states that a "person who
carries a firearm in any vehicle or any person who carries a firearm
concealed on or about his person, except in his place of abode or fixed place
of business, without a valid and lawfully issued license under this chapter
commits a felony of the third degree." 18 Pa.C.S. § 6101(a). A firearm for
purposes of § 6101 is defined in pertinent part as "any weapon which is
designed to . . . expel any projectile by the action of an explosive or the
frame or receiver of the weapon." 18 Pa.C.S. § 6106(e)(1). To satisfy the
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elements of this offense, the Commonwealth must establish that the weapon
recovered was a firearm, the defendant possessed it, the defendant was not
licensed to possess it, and the firearm was in a location prohibited by this
provision. See Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super.
2004).
Herein, the gun was recovered in Appellant's car while Appellant was
the sole occupant. The weapon was a firearm since it was a .22 caliber
loaded pistol. Appellant admitted that it was in his possession when he
asserted that he had found it, and the Commonwealth established that
Appellant did not have a license. Hence, the evidence was sufficient to
convict Appellant of this crime.
Appellant also raises a sufficiency claim as to his conviction of 18
Pa.C.S. § 4914(a), false identification to law enforcement. A person
commits an offense under § 4914(a) if he "furnishes law enforcement
authorities with false information about his identity after being informed by a
law enforcement officer who is in uniform or who identified himself as a
police officer that the person is the subject of an official investigation of a
violation of the law." 18 Pa.C.S. § 4914(a). In order to be guilty of this
crime, a person must be aware both that he is identifying himself to a law
enforcement official and that he is under investigation for violating the law.
In re D.S., 39 A.3d 968, 974 (Pa. 2012).
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Herein, Officer Glass testified that he was in uniform and in a marked
patrol car when he stopped Appellant's Ford Explorer. Prior to the stop,
Officer Glass observed that that Explorer's "driver side front tire was
completely flat. You could hear the tire flapping. You could actually see
smoke and sparking coming from the tire." N.T. Trial, 5/15/15, at 12. The
condition of the vehicle was thus a safety hazard to Appellant and other
vehicles on the roadway. Appellant continued to drive and was unaware that
"he needed to do something about his tire," so Officer Glass pulled up next
to Appellant to indicate to him that his tire was flat. Id. When Appellant did
not look at the officer or respond, Officer Glass effectuated a traffic stop.
Officer Glass informed Appellant that he was driving on the rim of his tire.
Id. at 15. Appellant said he was planning to obtain air for the tire and the
officer told him that the tire could not be inflated because it was shredded.
After the officer told Appellant that he had been stopped for driving on
the rim of a shredded tire, Officer Glass asked for Appellant's name. Driving
on a shredded tire that is emanating smoke and sparks constitutes careless
driving as well as reckless driving. 75 Pa.C.S. § 3714(a) (“Any person who
drives a vehicle in careless disregard for the safety of persons or property is
guilty of careless driving, a summary offense.”); 75 Pa.C.S. § 3736 (a) (“Any
person who drives any vehicle in willful or wanton disregard for the safety of
persons or property is guilty of reckless driving.”). Appellant gave the
officer a driver's license that contained a name that was not Appellant’s
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actual name, and he also represented that he was the individual in question.
Thus, Appellant gave a uniformed police officer a false name and
identification after being told he was under investigation for committing a
violation of the law. The evidence therefore was sufficient to support the
conviction under 18 Pa.C.S. § 4914(a).
We have conducted an independent review of the record, as required
by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),
and have concluded that there are no preserved non-frivolous issues that
can be raised in this appeal. Hence, we concur with counsel’s conclusion
that this appeal is wholly frivolous and allow her to withdraw.
Petition of Emily M. Merski, Esquire, to withdraw is granted. Judgment
of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
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