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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYRONE HOPPER :
:
Appellant : No. 3095 EDA 2016
:
Appeal from the Judgment of Sentence August 25, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013614-2013,
CP-51-CR-0013615-2013
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 05, 2018
Appellant, Tyrone Hopper, appeals from the judgment of sentence
entered on August 25, 2016. In an earlier memorandum filed on April 25,
2018, we remanded this matter to the trial court for the appointment of
counsel to represent Appellant at CP-51-CR-0013614-2013 and CP-51-CR-
0013615-2013 and to comply with Pa.R.A.P. 1925. We also directed the trial
court to file an opinion addressing any issues raised on appeal. On May 2,
2018, Appellant, through appointed counsel, filed a Pa.R.A.P. 1925(c)(4)
statement of intent to file a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
which govern withdrawal from representation on direct appeal. On May 24,
2018, the trial court filed a supplemental opinion. On July 31, 2018, counsel
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for Appellant filed a timely Anders brief and petition to withdraw his
representation. This matter is now ripe for disposition, and after careful
review, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
The record reveals that on August 26, 2013, in the 500 block of
Carpenter Street in Philadelphia, Appellant approached Saleese Austin and
Leroy Byrd. Appellant pointed a gun at Mr. Byrd and Ms. Austin, and he
ordered Mr. Byrd to empty his pockets. Trial Court Opinion, 5/18/17, at 2.
Mr. Byrd and Appellant then engaged in a physical altercation, and Mr. Byrd
disarmed Appellant and restrained him until police arrived. Id. at 2-3. In a
criminal information filed at CP-51-CR-0013614-2013, the Commonwealth
charged Appellant with aggravated assault, robbery, criminal attempt,
possessing an instrument of crime (“PIC”), simple assault, recklessly
endangering another person (“REAP”), resisting arrest, and four counts of
violating the uniform firearms act (“VUFA”), relating to the crimes committed
against Mr. Byrd.1 Information, 11/15/13. Additionally, in a separate criminal
information filed at CP-51-CR-0013615-2013, the Commonwealth charged
Appellant with simple assault, REAP, and PIC in connection to the crimes
committed against Ms. Austin.2 Information, 11/15/13.
118 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 901(a), 907(a), 2701(a), 2705, 5104,
6105(a)(1), 6106(a)(1), 6106.1, and 6108, respectively.
2 18 Pa.C.S. §§ 2701(a), 2705, and 907(a), respectively.
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The cases at CP-51-CR-0013614-2013 and CP-51-CR-0013615-2013
were consolidated for trial. Following a jury trial, Appellant was found guilty
of robbery, VUFA (possession of a firearm by a prohibited person), VUFA
(firearms not to be carried without a license), VUFA (firearms not to be carried
in public in Philadelphia), PIC, and REAP at CP-51-CR-0013614-2013. At
docket number CP-51-CR-0013615-2013, the jury found Appellant guilty of
REAP.
At CP-51-CR-0013614-2013, the trial court sentenced Appellant to a
term of incarceration of six to twelve years for robbery, a consecutive term of
two to four years of incarceration for VUFA (possession of a firearm by a
prohibited person), a concurrent term of two to four years of incarceration for
VUFA (firearms not to be carried without a license), a concurrent term of two
to four years of incarceration for VUFA (firearms not to be carried in public in
Philadelphia), a concurrent term of two to four years of incarceration for PIC,
and a consecutive term of two years of probation for REAP. Order of Sentence,
8/25/16. At CP-51-CR-0013615-2013, the trial court sentenced Appellant to
a term of two years of probation for REAP to be served concurrently with the
two-year sentence of probation at CP-51-CR-0013614-2013. Order of
Sentence, 8/25/16. This resulted in an aggregate sentence of eight to sixteen
years of incarceration followed by two years of probation.
As noted, counsel filed a petition to withdraw representation. Before we
address any questions raised on appeal, we must resolve appellate counsel’s
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request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.
Super. 2013) (en banc). There are procedural and briefing requirements
imposed upon an attorney who seeks to withdraw on direct appeal. The
procedural mandates are that counsel must:
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) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Id. at 1032 (citation omitted).
In this case, counsel averred that he conducted a conscientious review
of the record and pertinent legal research. Following that review, counsel
concluded that the present appeal is frivolous. Counsel sent Appellant a copy
of the Anders brief and petition to withdraw, as well as a letter, a copy of
which is attached to the petition to withdraw. In the letter, counsel advised
Appellant that he could represent himself or that he could retain private
counsel. Appellant has not filed any additional documents with this Court.
We now examine whether the brief satisfies our Supreme Court’s
dictates in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which
provide 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
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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. at 361. “[W]hen counsel meets his or her 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.’” Id. at 355 n.5 (quoting Commonwealth v.
McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).
Counsel’s brief is compliant with Santiago. The brief sets forth the
procedural history of this case, outlines pertinent case authority, and
discusses counsel’s conclusion that the appeal is frivolous. We thus conclude
that the procedural and briefing requirements for withdrawal have been met.
Counsel for Appellant has indicated that, after a thorough and careful
review of the certified record, there are no meritorious issues. Anders Brief
at 11. However, counsel does set forth three possible issues: 1) Appellant’s
sentence is manifestly excessive due to the consecutive nature of the
sentences imposed; 2) there was insufficient evidence to sustain the verdict;
and 3) the verdict was against the weight of the evidence. Id. at 12-14. We
shall address these issues in the order in which they were presented.
Appellant first presents a challenge to the discretionary aspects of his
sentence. We note that “[t]he right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d
127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the
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discretionary aspects of a sentence, the appeal should be considered a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.
Super. 2007).
As we observed 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:
We 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.
[708]; (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, 533 (Pa. Super.
2006)). The determination of whether there is a substantial question is made
on a case-by-case basis, and this Court will grant the appeal only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code;
or (2) contrary to the fundamental norms which underlie the sentencing
process. Commonwealth v. Sierra, 752 A.2d 910, 912-913 (Pa. Super.
2000).
Herein, the first two requirements of the four-part test are satisfied:
Appellant brought a timely appeal and raised the challenge in a post-sentence
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motion. Appellant’s brief however, does not contain a concise statement of
the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
However, as we have received no objection from the Commonwealth, we
overlook this deficiency. See Commonwealth v. Patterson, 180 A.3d 1217,
1232 (Pa. Super. 2018) (stating that when the Commonwealth does not object
to an appellant’s failure to include a Pa.R.A.P. 2119(f) statement, it results in
waiver of the defect). Therefore, we next determine whether Appellant raised
a substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
In the Anders brief, counsel avers that the trial court imposed a
manifestly excessive sentence due to the consecutive nature of the sentences.
Anders Brief at 12-14. However, “[a] bald claim that an aggregate sentence
is manifestly excessive because the individual sentences are consecutive does
not raise a substantial question.” Commonwealth v. Dodge, 77 A.3d 1263,
1270 (Pa. Super. 2013). It is well settled that a criminal defendant is not
entitled to a volume discount for his crimes by having his sentences run
concurrently. Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super.
1995). We conclude that Appellant failed to present a substantial question,
and therefore, we decline to address this issue further.
Next, Appellant avers that the evidence was insufficient to find him
guilty of the crimes for which he was convicted. Initially, we note that this
issue, as presented in the Anders brief, lacks specificity. Generally, when an
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appellant fails to set forth the crimes and the specific elements of those crimes
that were allegedly not proven by sufficient evidence, the challenge is waived.
See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009)
(reiterating that when an appellant challenges the sufficiency of the evidence
on appeal, the appellant’s Pa.R.A.P. 1925(b) statement must “specify the
element or elements upon which the evidence was insufficient” in order to
preserve the issue on appeal) (quoting Commonwealth v. Williams, 959
A.2d 1252, 1257 (Pa. Super. 2008) (citations omitted)).
However, in the case at bar, counsel filed a Pa.R.A.P. 1925(c)(4)
statement of intent to file an Anders brief. Because counsel did not file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and he instead seeks to withdraw pursuant to Anders, we decline to find
waiver hastily. Rather, we shall examine these claims as part of our
independent review of the record. Santiago, 978 A.2d at 355 n.5.
We analyze issues challenging the sufficiency of the evidence under the
following parameters:
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to establish all
elements of the offense beyond a reasonable doubt. We may not
weigh the evidence or substitute our judgment for that of the fact-
finder. Additionally, the evidence at trial need not preclude every
possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant’s guilt 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. When
evaluating the credibility and weight of the evidence, the fact-
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finder is free to believe all, part or none of the evidence. For
purposes of our review under these principles, we must review the
entire record and consider all of the evidence introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting
Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super. 2006)).
As stated above, Appellant was found guilty of robbery, VUFA
(possession of a firearm by a prohibited person), VUFA (firearms not to be
carried without a license), VUFA (firearms not to be carried in public in
Philadelphia), PIC, and REAP at CP-51-CR-0013614-2013. Additionally, the
jury found Appellant guilty of REAP at docket number CP-51-CR-0013615-
2013.
The relevant portion of the statute prohibiting robbery is defined as
follows: “A person is guilty of robbery if, in the course of committing a theft,
he … threatens another with or intentionally puts him in fear of immediate
serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii).
The first VUFA statute of which Appellant was found guilty, possession
of a firearm by a prohibited person, provides as follows:
A person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless
of the length of sentence or whose conduct meets the criteria in
subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a)(1).
The second VUFA statute, firearms not to be carried without a license,
states in relevant part:
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Except as provided in paragraph (2), any 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. § 6106(a)(1).
Additionally, the third VUFA statute, firearms not to be carried in public
in Philadelphia, provides: “No person shall carry a firearm, rifle or shotgun at
any time upon the public streets or upon any public property in [Philadelphia]
unless … such person is licensed to carry a firearm[.]” 18 Pa.C.S. §
6108(a)(1).
Next, the crime of PIC is defined in 18 Pa.C.S. § 907 as follows: “A
person commits a misdemeanor of the first degree if he possesses any
instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a).
Finally, REAP states: “A person commits a misdemeanor of the second
degree if he recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.
After review, we conclude that the evidence presented at trial was
sufficient to establish each of the aforementioned crimes. At trial, Leroy Byrd
testified that on August 26, 2013, a man armed with a gun, who was later
identified as Appellant, approached Mr. Byrd and his cousin, Saleese Austin,
on the 500 block of Carpenter Street in Philadelphia. Appellant pointed the
gun at Mr. Byrd’s chest, and he directed Mr. Byrd to empty his pockets.
Appellant then raised the gun to Mr. Byrd’s face, and Mr. Byrd, fearing
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Appellant was about to shoot him, reached for the weapon. The two men
struggled for the gun, and Mr. Byrd wrested it away from Appellant. During
the struggle, Appellant bit Mr. Byrd on the shoulder. Mr. Byrd struck Appellant
in the face with the gun multiple times, and Appellant fell to the ground. Mr.
Byrd and Ms. Austin then restrained Appellant until police arrived and arrested
him. N.T., 10/14/14, at 44-56. Mr. Byrd was unable to identify Appellant,
but Police Officer Joseph McCann who responded to the robbery identified
Appellant as the man who was arrested on Carpenter Street after the
aforementioned incident on August 26, 2014. Id. at 15. Officer Frank
Lafontana testified that he recovered Appellant’s gun from the scene. N.T.,
10/14/14, at 105.
Mr. Byrd’s cousin, Saleese Austin, provided consistent testimony. Ms.
Austin identified Appellant as the assailant, and she stated that Appellant
pointed his gun at her first. N.T., 10/9/14, at 24-27.
After review, we agree with counsel’s assessment in the Anders brief
that an appeal on the sufficiency of the evidence is frivolous. The testimony
noted above aptly establishes every element of robbery, VUFA (firearms not
to be carried in public in Philadelphia), PIC, and two counts of REAP. As for
the convictions for VUFA (firearms not to be carried without a license) and
VUFA (possession of a firearm by a prohibited person), we note that Appellant
stipulated that he did not have a license to carry a firearm and had a prior
conviction making him ineligible to possess a firearm. N.T., 10/15/14, at 11;
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N.T., 10/16/14, at 13. Accordingly, Appellant is due no relief regarding the
sufficiency of the evidence.
The final issue set forth in the Anders brief is a challenge to the weight
of the evidence. Our Supreme Court has described the standard applied to a
weight-of-the-evidence claim as follows:
The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, the function of
an appellate court on appeal is to review the trial court’s exercise
of discretion based upon a review of the record, rather than to
consider de novo the underlying question of the weight of the
evidence. An appellate court may not overturn the trial court’s
decision unless the trial court palpably abused its discretion in
ruling on the weight claim. Further, in reviewing a challenge to
the weight of the evidence, a verdict will be overturned only if it
is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations
and quotation marks omitted). “[W]e do not reach the underlying question of
whether the verdict was, in fact, against the weight of the evidence....
Instead, this Court determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion[.]” Commonwealth v.
Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted).
A challenge to the weight of the evidence must first be raised at the trial
level “(1) orally, on the record, at any time before sentencing; (2) by written
motion at any time before sentencing; or (3) in a post-sentence motion.”
Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Appellant
preserved his challenge to the weight of the evidence by raising the issue in
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his post-sentence motion. The trial court denied Appellant’s post-sentence
motion, without a hearing, on August 31, 2016.
As discussed earlier, there was testimony from the victims that
Appellant approached Mr. Byrd and Ms. Austin while brandishing a firearm.
Appellant then robbed Mr. Byrd, while placing others in danger due to his
possession of the firearm. We conclude that there was nothing shocking about
the verdict, and we discern no abuse of discretion in the trial court denying
Appellant’s post-sentence motion challenging the weight of the evidence.
Finally, we note that we have independently reviewed the record in
order to determine whether there are any non-frivolous issues present in this
case that Appellant may raise. Commonwealth v. Harden, 103 A.3d 107,
111 (Pa. Super. 2014). Having concluded that there are no meritorious issues,
we grant Appellant’s counsel permission to withdraw, and we affirm the
judgment of sentence.
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/18
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