J-S45043-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD BRANDON NAYLOR :
:
Appellant : No. 2964 EDA 2016
Appeal from the Judgment of Sentence August 18, 2016
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004290-2015
BEFORE: GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 08, 2017
Richard Brandon Naylor (Appellant) appeals from his judgment of
sentence imposed after he was convicted of aggravated assault, firearms not
to be carried without a license, and persons not to possess firearms. In
addition, Appellant’s counsel has filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant the petition to withdraw.
The trial court summarized the facts established by the
Commonwealth at Appellant’s trial.
On June 4, 2015, Chief James Nolan [and other police
officers from the Chester City police department] were
conducting a surveillance operation along the city’s 400 block of
Bickley Street. At this time of night, there was street lighting on
Bickley Street illuminating the area.
*Retired Senior Judge assigned to the Superior Court.
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***
[After exiting a residence the police had secured,] Chief
Nolan observed [that] Officer William Carey had come in contact
with [Appellant] on the opposite side of the street … and began
to converse with [Appellant]. The chief described [Appellant] as
a black male with a beard and short hair wearing dark clothing.
Chief Nolan proceeded across the street toward the
direction of Officer Carey and [Appellant] while the two men
continued to speak. When he was only about three to five feet
away, Chief Nolan observed Officer Carey put his right hand on
[Appellant], who reacted by pushing the officer and
simultaneously pulling a semi-automatic firearm from his
waistband. On seeing the handgun, Chief Nolan shouted “gun”
to alert Officer Carey and the other nearby police [officers] that
[Appellant] was in possession of a firearm. [Appellant] then
fled.
With [Appellant’s] taking flight, Officer Carey, Chief Nolan,
and Officer Marc Barag immediately commenced a foot chase
down Bickley Street before pursuing him into a nearby alley.
Seconds after entering the alleyway, [Appellant] fired his
handgun. Chief Nolan heard the sound of the gunshot as well as
observed a muzzle flash. ([According to a detective testifying as
an expert at trial, a] muzzle flash [occurs] “…when a cartridge is
discharged [and] the gases that are burned from the powders …
flame out [of] the front of the muzzle, … almost like a little small
fireball coming out.”) Chief Nolan testified that he was in such
close proximity to the discharge of [Appellant’s] gun that he felt
the percussive force from the fired round. … Following this initial
shot, there were several other rounds fired that Chief Nolan was
later advised were discharged by Officer Carey. Officer Barag
then collided with Chief Nolan in the alleyway before they both
continued their chase.
The pursuing officers finally lost [sight] of [Appellant]
resulting from [Appellant’s] climbing a fence located at the
alley’s end. …
[Since Chief Nolan had kept Appellant in his sight between
Chief Nolan’s initial observations and Appellant’s clearing of the
fence,] at trial, Chief Nolan, without equivocation, identified
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[Appellant] as the man Officer Carey approached that night,
toward whom he had walked within a distance of three to five
feet, and who[m] he and other police officers [had] chased into
a close[-]by alleyway where [Appellant] fired his semi-automatic
handgun before fleeing over the fence at the alley’s end.
***
Like Chief Nolan, Officer Barag [testified that he] observed
Officer Carey make contact with [Appellant] who, inter alia, he
described as [a black male with] a beard. Following Officer
Carey’s initial interaction with [Appellant], the officer proceeded
to walk over to where the two men were located. Officer Barag
testified that when approaching them, he could “… see a
hundred percent the one [] side of [Appellant’s] face[,] … a
perfect profile of his face ….”
***
From the observations of his clearly[-]visible facial features
on approaching him continuing through those of the ensuing foot
chase, Officer Barag, at trial, absent any qualifications, identified
[Appellant] as the black male Officer Carey encountered that
night, who on fleeing was pursued by police into the close by
alleyway, where he discharged a firearm prompting Officer Carey
to return fire.
Officer [Carey] also testified as to his observations of that
evening, June 4, 2015. This officer detailed that on the night in
question he and other participating police were wearing plain
clothes and vests emblazoned with the word “POLICE.” Officer
Carey also had his police badge displayed hanging from a chain
around his neck. Officer Carey recounted [that] beyond the
illumination of the block from the street lights, throughout the
incident he was utilizing his police flashlight. He as well testified
there was some lighting about the breezeway emanating from
the houses forming the alley.
Responding to the suspicious condition radio calls, Officer
Carey arrived in the vicinity …. On exiting his police vehicle, the
officer saw two persons walking along the block followed by
[Appellant]. After the first two persons crossed over in front of
Officer Carey, they pointed and otherwise indicated to
[Appellant]. Officer Carey decided to speak to [Appellant].
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In addition to the police badge and attire he was wearing,
Officer Carey verbally identified himself as law enforcement
three to four times, approached [Appellant], and from a distance
of two feet commenced a discussion with him. The officer
inquired of [Appellant] his recent whereabouts. [Appellant]
answered Officer Carey’s question, but when next asked for his
name provided a mumbled reply causing the officer to ask for
identification. On Officer Carey’s request, [Appellant]
immediately turned his body to the side in what the officer
characterized as a “bladed,” “defensive posture.” …Officer Carey
next grasped at [Appellant] prompting [Appellant] to violently
push off the officer and immediately flee down Bickley Street.
[Appellant] continued a short distance east on Bickley
Street before running down a close[-]by alley. While chasing
[Appellant], together with Officer Barag and Chief Nolan, Officer
Carey yelled numerous times for him to stop running [but his
warnings were] ignored.
On [Appellant’s] reaching the fence at the end of the
breezeway, he and Officer Carey were approximately 15 feet
from each other when the officer noticed a silver firearm with
black grips on the left side of [Appellant’s] body. Just a second
later, Officer Carey heard a gunshot and saw a muzzle flash at
the alleyway’s end. In response to [Appellant’s] gunfire, Officer
Carey drew his weapon and discharged five shots. [Appellant]
then climbed over the fence located at the end of the alley and
escaped.
As he was focused on the male from the time the other
two persons walking along Bickley Street brought [Appellant] to
his attention, including a discussion and interaction with him
from a mere two feet, continuing throughout the pursuit into the
nearby alleyway, and [Appellant’s] discharging of the firearm
while in the alley when just some 15 feet away, Officer Carey, at
trial, without any reservations, identified [Appellant] as the black
male he directly interacted with that night, the same individual
he chased down Bickley Street into the close[-]by breezeway
before [Appellant turned to his left back towards the officers]
and fired a semi-automatic handgun resulting in the officer
returning fire.
***
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After the police established a perimeter around the Bickley
Street area, Officer William J. Murphy … and his police tracking
dog were called to the shooting scene. …After the police dog
swept through the yard and [Appellant] was not located, Officer
Murphy observed a silver Taurus semi-automatic handgun
against the fence and alerted assisting officers[,] resulting in the
firearm’s recovery just some ten minutes subsequent to the
shooting.
[At trial, Detective Louis Grandizio, testifying as an expert
trial without objection, recounted his determination that (1) the
recovered Taurus handgun was operable and did not malfunction
or accidentally discharge, and (2) a cartridge recovered at the
scene was fired by the recovered Taurus handgun. Appellant did
not have a license to carry this firearm and his prior criminal
convictions prohibited him from possessing this firearm.]
Jorge Rivera, a residen[t] of Bickley Street, also appeared
at trial as a prosecution witness.40 Mr. Rivera explained that on
the night in question he saw Officer Carey approach a black
male. After their initial interaction, he observed this individual
flee from the police on Bickley Street before turning down the
alleyway. While watching the male run from the police, Mr.
Rivera observed this person had in his possession a firearm
located about his waist. Shortly after this individual and the
pursing police ran into the breezeway[,] Mr. Rivera heard
gunshots.
______
40
Mr. Rivera testified through a Spanish court interpreter.
Within a week of the shooting (June 10, 2015), Mr. Rivera
visited the Chester City Police Department and was shown a
photo array by Detective Lawrence Weigand … and a Spanish
speaking policeman, Officer Demoss Jones. The photo array
consisted of eight similarly[-]depicted … black males [who had
physical appearances similar to Appellant’s]. Mr. Rivera circled
on this photo array the person he saw on the night in question
fleeing from the police while in possession of handgun about his
waistband and appropriately identified the same by also signing
and dating the array form. [Although at trial Mr. Rivera was
unable to identify Appellant in court, Detective Weigand testified
that the] individual circled by Mr. Rivera via the photo array was
[Appellant].
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Trial Court Opinion, 12/9/2016, at 15-23 (record citations, duplicative
numbers, and some footnotes omitted).
After hearing the above-summarized evidence, the jury convicted
Appellant of firearms not to be carried without a license and aggravated
assault – attempt by physical menace to put enumerated person in fear of
imminent serious bodily injury (Officer Carey). The jury acquitted Appellant
of two counts of aggravated assault based upon Chief Nolan and Officer
Barag as victims. On the same day, after the parties stipulated to
Appellant’s prior criminal convictions, the trial court found Appellant to be
guilty of persons not to possess firearms.
On August 18, 2016, the trial court sentenced Appellant to five to ten
years’ of incarceration for persons not to possess firearms, a concurrent
term of three to six years’ of incarceration for aggravated assault, and a
consecutive term of seven years’ probation for firearms not to be carried
without a license.
After the ten-day time period for filing post-sentence motions expired,
Appellant filed a petition for reconsideration. The trial court permitted
Appellant to proceed nunc pro tunc, but denied the petition on September 9,
2016.1 Through his counsel, Appellant timely filed a notice of appeal. 2 The
1
An untimely-filed post-sentence motion tolls the appeal period only when
the trial court accepts it under its limited authority to allow the filing of a
post-sentence motion nunc pro tunc. Commonwealth v. Capaldi, 112
A.3d 1242, 1244 (Pa. Super. 2015).
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trial court ordered Appellant to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
complied.
In this Court, Appellant’s counsel filed both an Anders brief and a
petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter.
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). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
2
Despite still being represented by counsel, prior to sentencing, Appellant
prematurely filed pro se a notice of appeal, which was later dismissed by this
Court.
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Our Supreme Court has clarified portions of the Anders procedure as
follows.
Accordingly, we 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, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied substantially with the
above requirements.3 Once “counsel has met these 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.’” Commonwealth v. Flowers, 113
A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.
5).
According to counsel, the only issue of arguable merit is whether the
Commonwealth failed to prove beyond a reasonable doubt that Appellant
committed the offenses charged due to Jorge Rivera’s failure to identify
Appellant in the courtroom at trial.
3
Appellant has not responded to counsel’s petition to withdraw.
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We have expressed the following regarding a challenge to the
sufficiency of the evidence produced at trial.
[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. 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.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Hecker, 153 A.3d 1005, 1008 (Pa. Super. 2016)
(citation omitted).
In determining whether a particular identification was reliable, the
court
should consider the opportunity of the witness to view the
criminal at the time of the crime, the witness’[s] degree of
attention, the accuracy of his or her prior description of the
criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation. The opportunity of the witness to view the actor at
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the time of the crime is the key factor in the totality of the
circumstances analysis.
[E]vidence of identification need not be positive and
certain to sustain a conviction. Although common items of
clothing and general physical characteristics are usually
insufficient to support a conviction, such evidence can be used
as other circumstances to establish the identity of a perpetrator.
Out-of-court identifications are relevant to our review of
sufficiency of the evidence claims, particularly when they are
given without hesitation shortly after the crime while memories
were fresh. Given additional evidentiary circumstances, any
indefiniteness and uncertainty in the identification testimony
goes to its weight.
Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014)
(citations omitted).
We agree with counsel that a challenge to the sufficiency of the
evidence based upon Mr. Rivera’s failure to make an in-court identification of
Appellant is frivolous. All three of Appellant’s convictions stem from the
same incident: his shooting a firearm, for which he had no license to carry
and was not permitted to possess, in a narrow alleyway in close proximity to
Officer Carey and two other officers, all of whom were pursuing him.
Although he did not make an in-court identification, Mr. Rivera
acknowledged at trial that he had identified the man he saw running from
police with a pistol in a photograph array shortly after the shooting, and
Detective Weigand testified that the man Mr. Rivera identified was Appellant.
N.T., 6/22/2016, at 93, 97. The jury was free to determine that Appellant
was the shooter based upon the evidence of Mr. Rivera’s out-of-court
identification made close in time to the incident. Commonwealth v.
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Sanders, 42 A.3d 325, 329 (Pa. Super. 2012) (concluding that there was
sufficient evidence to support convictions for aggravated assault, possession
of an instrument of crime, and persons not to possess firearms based upon
prior out-of-court identifications admitted into evidence, notwithstanding
witnesses’ failure to make in-court identifications).
Moreover, Officer Carey, Chief Nolan, and Officer Barag, each of whom
had ample opportunity to view Appellant during the incident, testified
unequivocally that Appellant is the person who ran from police and shot the
firearm. N.T., 6/21/2016, at 145, 167; N.T., 6/22/2016, at 9-10. This
testimony is sufficient to sustain Appellant’s convictions notwithstanding Mr.
Rivera’s failure to make an in-court identification. Commonwealth v.
Patterson, 940 A.2d 493, 502 (Pa. Super. 2007) (citing Commonwealth v.
Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (stating that a positive,
unqualified identification by one witness is sufficient for conviction)). The
testimony of all of the witnesses need not align in order to withstand a
sufficiency challenge; disparities between witnesses’ testimony “does not
render the evidence insufficient because it is within the province of the fact
finder to determine the weight to be given to the testimony and to believe
all, part, or none of the evidence.”4 Id. (citations omitted).
4
A claim challenging the weight of the evidence would also be frivolous. As
the trial court correctly notes, Appellant has waived any weight claims based
upon his failure to preserve such a claim in a pre- or post-sentence motion.
Trial Court Opinion, 12/9/2016, at 11 n. 36 (citing Commonwealth v.
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Based on the foregoing, we conclude that a challenge to the sufficiency
of the evidence based upon Mr. Rivera’s failure to make an in-court
identification is frivolous. Moreover, we have conducted “a full examination
of the proceedings” and conclude that “the appeal is in fact wholly frivolous.”
Flowers, 113 A.3d at 1248. Thus, we affirm the 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: 9/8/2017
Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012); Commonwealth v.
Bryant, 57 A.3d 191, 196 (Pa. Super. 2012); Pa.R.Crim.P. 607(a)).
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