Com. v. Jamale, A.

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2017
• Docket: Com. v. Jamale, A. No. 605 WDA 2016
• Status: Unpublished

Opinion

J-S96019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J-S96019-16

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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