J-S20017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JASON PHILLIP THOMAS,
Appellant No. 805 WDA 2015
Appeal from the Judgment of Sentence of April 22, 2015 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001973-2014
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 11, 2016
Appellant, Jason Phillip Thomas, appeals from the judgment of
sentence entered on April 22, 2015. On this direct appeal, Appellant’s court-
appointed counsel filed both a petition to withdraw as counsel and an
accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386
U.S. 738 (1967). We conclude that Appellant’s counsel has complied with
the procedural requirements necessary to withdraw. Furthermore, after
independently reviewing the record, we conclude that the appeal is wholly
frivolous. We, therefore, grant counsel’s petition to withdraw and affirm the
judgment of sentence.
The factual background and procedural history of this case are as
follows. On April 8, 2014, Appellant shot and stabbed Stephon Bibbs
* Retired Senior Judge assigned to the Superior Court J-S20017-16
(“Bibbs”), who lived in the apartment above Appellant, on the landing of
their building’s steps. Appellant then stole Bibbs’ wallet and clothing. The
gun used in the murder was stolen and two other individuals were inside the
residence when the murder occurred.
On August 7, 2014, Appellant was charged via criminal information
with first-degree murder,1 aggravated assault,2 robbery,3 two counts of
receiving stolen property,4 two counts of possessing an instrument of crime,5
three counts of recklessly endangering another person,6 and theft by
unlawful taking.7 On March 5, 2015, Appellant was found guilty of all 11
charged offenses. On April 22, 2015, Appellant was sentenced to an
aggregate term of life imprisonment without the possibility of parole. This
timely appeal followed.8
Appellant’s counsel raises one issue in his Anders brief:
1 18 Pa.C.S.A. § 2502(a). 2 18 Pa.C.S.A. § 2702(a)(1). 3 18 Pa.C.S.A. § 3701(a)(1)(i). 4 18 Pa.C.S.A. § 3925(a). 5 18 Pa.C.S.A. § 907(a). 6 18 Pa.C.S.A. § 2705. 7 18 Pa.C.S.A. § 3921(a). 8 On June 8, 2015, Appellant filed a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On June 11, 2015, the trial court issued its Rule 1925(a) opinion.
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Whether there was sufficient evidence to find Appellant guilty of [f]irst[-d]egree [m]urder, [r]obbery[,] and related charges[?]
Anders Brief at 4.
Before reviewing the merits of this appeal, this Court must first
determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. See Commonwealth v.
Flowers, 113 A.3d 1246, 1248-1249 (Pa. Super. 2015) (citation omitted).
To withdraw under Anders, court-appointed counsel must satisfy certain
technical requirements. “First, counsel must petition the court for leave to
withdraw and state that after making a conscientious examination of the
record, he has determined that the appeal is frivolous.” Commonwealth v.
Bynum-Hamilton, 2016 PA Super 39, 7 (Pa. Super. 2016), quoting
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second,
counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015),
quoting Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[] him of his right to retain new counsel, proceed pro se[,] or
raise any additional points that he deems worthy of the court’s attention,
-3- J-S20017-16
and attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
If counsel meets all of the above 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.” Santiago, 978 A.2d at 355 n.5, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw. In the case at bar, counsel has met all of the above procedural
obligations. We now turn to whether this appeal is wholly frivolous.9
The lone issue raised in counsel’s Anders brief is whether the
evidence was sufficient to find Appellant guilty. “Whether sufficient evidence
exists to support the verdict is a question of law; our standard of review is
de novo and our scope of review is plenary.” Commonwealth v. Tejada,
107 A.3d 788, 792 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa.
2015) (citation omitted). In reviewing a sufficiency of the evidence claim,
we must determine whether “viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth as the verdict winner, there is
sufficient evidence to enable the fact-finder to find every element of the
9 Appellant filed a response to counsel’s Anders brief in which he stated in a conclusory fashion that the issue raised in counsel’s Anders brief was meritorious.
-4- J-S20017-16
crime beyond a reasonable doubt.” Commonwealth v. Gonzalez, 109
A.3d 711, 716 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015)
(internal alteration and citation omitted). “The evidence does not need to
disprove every possibility of innocence, and doubts as to guilt, the credibility
of witnesses, and the weight of the evidence are for the fact-finder to
decide.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015)
(citation omitted).
In essence, Appellant argues that he was a victim and not the
perpetrator of the offense. He argues that two men, one Caucasian and one
African-American, shot him and Bibbs. He argues that the gun used in the
murder belonged to him until the day before the crime when he illegally sold
it.
We conclude that this argument is wholly frivolous. Appellant
admitted that the gun belonged to him until he allegedly sold it eight hours
prior to the murder. Myisha Coles (“Coles”), who was Appellant’s live-in
girlfriend, stated that she did not see any third-parties at the scene of the
shooting or fleeing the shooting. Within one minute of police receiving a 911
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J-S20017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JASON PHILLIP THOMAS,
Appellant No. 805 WDA 2015
Appeal from the Judgment of Sentence of April 22, 2015 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001973-2014
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 11, 2016
Appellant, Jason Phillip Thomas, appeals from the judgment of
sentence entered on April 22, 2015. On this direct appeal, Appellant’s court-
appointed counsel filed both a petition to withdraw as counsel and an
accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386
U.S. 738 (1967). We conclude that Appellant’s counsel has complied with
the procedural requirements necessary to withdraw. Furthermore, after
independently reviewing the record, we conclude that the appeal is wholly
frivolous. We, therefore, grant counsel’s petition to withdraw and affirm the
judgment of sentence.
The factual background and procedural history of this case are as
follows. On April 8, 2014, Appellant shot and stabbed Stephon Bibbs
* Retired Senior Judge assigned to the Superior Court J-S20017-16
(“Bibbs”), who lived in the apartment above Appellant, on the landing of
their building’s steps. Appellant then stole Bibbs’ wallet and clothing. The
gun used in the murder was stolen and two other individuals were inside the
residence when the murder occurred.
On August 7, 2014, Appellant was charged via criminal information
with first-degree murder,1 aggravated assault,2 robbery,3 two counts of
receiving stolen property,4 two counts of possessing an instrument of crime,5
three counts of recklessly endangering another person,6 and theft by
unlawful taking.7 On March 5, 2015, Appellant was found guilty of all 11
charged offenses. On April 22, 2015, Appellant was sentenced to an
aggregate term of life imprisonment without the possibility of parole. This
timely appeal followed.8
Appellant’s counsel raises one issue in his Anders brief:
1 18 Pa.C.S.A. § 2502(a). 2 18 Pa.C.S.A. § 2702(a)(1). 3 18 Pa.C.S.A. § 3701(a)(1)(i). 4 18 Pa.C.S.A. § 3925(a). 5 18 Pa.C.S.A. § 907(a). 6 18 Pa.C.S.A. § 2705. 7 18 Pa.C.S.A. § 3921(a). 8 On June 8, 2015, Appellant filed a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On June 11, 2015, the trial court issued its Rule 1925(a) opinion.
-2- J-S20017-16
Whether there was sufficient evidence to find Appellant guilty of [f]irst[-d]egree [m]urder, [r]obbery[,] and related charges[?]
Anders Brief at 4.
Before reviewing the merits of this appeal, this Court must first
determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. See Commonwealth v.
Flowers, 113 A.3d 1246, 1248-1249 (Pa. Super. 2015) (citation omitted).
To withdraw under Anders, court-appointed counsel must satisfy certain
technical requirements. “First, counsel must petition the court for leave to
withdraw and state that after making a conscientious examination of the
record, he has determined that the appeal is frivolous.” Commonwealth v.
Bynum-Hamilton, 2016 PA Super 39, 7 (Pa. Super. 2016), quoting
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second,
counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015),
quoting Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[] him of his right to retain new counsel, proceed pro se[,] or
raise any additional points that he deems worthy of the court’s attention,
-3- J-S20017-16
and attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
If counsel meets all of the above 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.” Santiago, 978 A.2d at 355 n.5, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw. In the case at bar, counsel has met all of the above procedural
obligations. We now turn to whether this appeal is wholly frivolous.9
The lone issue raised in counsel’s Anders brief is whether the
evidence was sufficient to find Appellant guilty. “Whether sufficient evidence
exists to support the verdict is a question of law; our standard of review is
de novo and our scope of review is plenary.” Commonwealth v. Tejada,
107 A.3d 788, 792 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa.
2015) (citation omitted). In reviewing a sufficiency of the evidence claim,
we must determine whether “viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth as the verdict winner, there is
sufficient evidence to enable the fact-finder to find every element of the
9 Appellant filed a response to counsel’s Anders brief in which he stated in a conclusory fashion that the issue raised in counsel’s Anders brief was meritorious.
-4- J-S20017-16
crime beyond a reasonable doubt.” Commonwealth v. Gonzalez, 109
A.3d 711, 716 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015)
(internal alteration and citation omitted). “The evidence does not need to
disprove every possibility of innocence, and doubts as to guilt, the credibility
of witnesses, and the weight of the evidence are for the fact-finder to
decide.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015)
(citation omitted).
In essence, Appellant argues that he was a victim and not the
perpetrator of the offense. He argues that two men, one Caucasian and one
African-American, shot him and Bibbs. He argues that the gun used in the
murder belonged to him until the day before the crime when he illegally sold
it.
We conclude that this argument is wholly frivolous. Appellant
admitted that the gun belonged to him until he allegedly sold it eight hours
prior to the murder. Myisha Coles (“Coles”), who was Appellant’s live-in
girlfriend, stated that she did not see any third-parties at the scene of the
shooting or fleeing the shooting. Within one minute of police receiving a 911
call they set up a perimeter around the scene and did not witness any
individuals fleeing or any individuals that matched the description of the two
alleged perpetrators Appellant described.
The forensic evidence was inconsistent with Appellant’s version of
events and consistent with the prosecution’s version of events. Specifically,
-5- J-S20017-16
Bibbs’ bloodstained, empty wallet was found in the duct work of Appellant’s
apartment. Also in Appellant’s duct work were two spent cartridges fired
from the murder weapon. Currency with Bibbs’ blood was also found in
Appellant’s couch. A portion of the knife used to stab Bibbs’ was found
underneath pots and pans in Appellant’s apartment. Appellant’s footprint
was found in the blood at the crime scene. The footprint was pointed in a
direction that was inconsistent with Appellant’s version of events but was
consistent with the Commonwealth’s version of events. Bibbs’ blood was
also found on Bibbs’ door – which was inconsistent with Appellant’s version
of events but consistent with the Commonwealth’s version of events.
Furthermore, the only evidence supporting Appellant’s version of
events, his own trial testimony, contradicted the four previous statements
Appellant provided police. Each time Appellant spoke to police, or testified
at trial, his story changed. The jury reasonably concluded that Appellant’s
continually evolving story proved Appellant was fabricating his version of
events. Based upon the totality of this circumstantial evidence, the jury
reasonably determined that Appellant was not the victim of a botched
robbery attempt but was instead the murderer.
Finally, because the victim was shot multiple times, the jury was
permitted to infer that Appellant acted with the specific intent to kill. See
Commonwealth v. Chamberlain, 30 A.3d 381, 394 (Pa. 2011) (citations
omitted). We also conclude that the record contains ample evidence
-6- J-S20017-16
establishing each of the elements of the other offenses for which Appellant
was convicted. Accordingly, we conclude that there was sufficient evidence
to find Appellant guilty of all 11 charged offenses.
In sum, we conclude that the lone issue raised in counsel’s Anders
brief is frivolous. Furthermore, after an independent review of the entire
record, we conclude that no other issue of arguable merit exists. Therefore,
we grant counsel’s request to withdraw. Having determined that the issues
raised on appeal are frivolous, we affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/11/2016
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