Com. v. Warren, K.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2018
• Docket: 691 EDA 2017
• Status: Unpublished

Opinion

J-S79034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KEITH WARREN : : Appellant : No. 691 EDA 2017

Appeal from the Judgment of Sentence January 27, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008734-2015, CP-51-CR-0008736-2015, CP-51-CR-0008752-2015, CP-51-CR-0008754-2015, CP-51-CR-0008756-2015, CP-51-CR-0008758-2015

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 27, 2018

Appellant, Keith Warren, appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas, following his jury trial

convictions for criminal attempt (first-degree murder), aggravated assault,

possession of an instrument of crime (“PIC”), conspiracy, and persons not to

possess a firearm.1 We affirm.

The relevant facts and procedural history of this case are as follows.

On June 22, 2015, Basil Elliot and two other men attacked Co-defendant.

Later that day, Co-defendant convinced Appellant to use Co-defendant’s

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1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 907(a), 903, 6105(a)(1), respectively. J-S79034-17

shotgun to exact revenge on Mr. Elliot. Appellant fired the shotgun

numerous times on a crowded street and injured seven people. Appellant

then fled through a vacant lot, where police later recovered the shotgun.

Police traced the shotgun to Co-defendant’s brother, who purchased the

shotgun for Co-defendant. At trial, witnesses testified that Appellant and

Co-defendant were friends and often frequented the block where the

shooting occurred. Witnesses also identified Appellant as the person who

used the shotgun on the day of the shooting. On November 10, 2016, a jury

convicted Appellant of seven counts each of criminal attempt (first-degree

murder), aggravated assault, and PIC, and one count each of conspiracy and

persons not to possess a firearm. The court sentenced Appellant to an

aggregate term of 100 to 200 years’ imprisonment on January 27, 2017.

On February 16, 2017, Appellant timely filed a notice of appeal. On

February 22, 2017, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After the

court granted multiple extensions of time, on May 23, 2017, counsel filed a

statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

On June 28, 2017, counsel filed his Anders brief and motion to withdraw.

As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

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petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance

with these requirements is sufficient. Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor McClendon[2] requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal. ____________________________________________

2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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* * *

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n 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.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious review of the record and

concluded the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the withdrawal petition, the brief, and a letter explaining

Appellant’s right to proceed pro se or with new privately-retained counsel to

raise any additional points Appellant deems worthy of this Court’s attention.

In his Anders brief, counsel provides a summary of the facts and procedural

history of the case. Counsel refers to facts in the record that might arguably

support the issues raised on appeal and offers citations to relevant law. The

brief also provides counsel’s reasons for concluding that the appeal is

frivolous. Thus, counsel has substantially complied with the requirements of

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Anders and Santiago.

Appellant has filed neither a pro se brief nor a counseled brief with

new privately-retained counsel; the issue raised in the Anders brief is:

WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT THAT COULD BE RAISED ON DIRECT APPEAL PRESENTLY BEFORE THIS COURT AND WHETHER THE APPEAL IS WHOLLY FRIVOLOUS?

(Anders Brief at 3).

Our standard and scope of review in this case are as follows:

When examining a challenge to the sufficiency of the evidence:

The standard we apply…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.

This standard is equally applicable in cases where the

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evidence is circumstantial, rather than direct, provided that the combination of evidence links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),

appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations,

quotation marks, and emphasis omitted).

Appellant argues the Commonwealth’s evidence of identification failed

to establish beyond a reasonable doubt that Appellant fired the shotgun on

the day of the shooting. Appellant submits the evidence was insufficient to

sustain his convictions. Appellant avers counsel inadequately cross-

examined the Commonwealth’s witnesses, which resulted in ineffective

assistance of counsel. For the following reasons, we cannot agree.

“A person commits an attempt when with intent to commit a specific

crime, he does any act which constitutes a substantial step towards the

commission of the crime.” 18 Pa.C.S.A. § 901(a).

A person may be convicted of attempted murder if he takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such an act. See 18 Pa.C.S.A. §§ 901, 2502. The substantial step test broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before the actual commission of the crime. The mens rea required for first- degree murder, specific intent to kill, may be established solely from circumstantial evidence. [T]he law permits the fact finder to infer that one intends the natural and probable consequences of his acts.

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal

denied, 600 Pa. 760, 967 A.2d 958 (2009) (most internal citations and

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quotation marks omitted).

The Crimes Code defines aggravated assault as follows:

§ 2702. Aggravated assault

(a) Offense defined.―A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is defined as “[b]odily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S.A. § 2301. The Commonwealth

need not prove specific intent in this context if the victim suffers serious

bodily injury. Commonwealth v. Nichols, 692 A.2d 181 (Pa.Super. 1997).

Possessing instruments of crime is defined as:

§ 907. Possessing instruments of crime

(a) Criminal instruments generally.―A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

(d) Definitions.―As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

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“Instrument of crime.” Any of the following:

(1) Anything specially made or specially adapted for criminal use.

(2) Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

18 Pa.C.S.A. § 907. For purposes of Section 907, the Commonwealth must

prove: (1) the accused’s possession of an object that is an instrument of

crime, and (2) the accused’s intent to use the object for a criminal purpose.

In re A.C., 763 A.2d 889, 890 (Pa.Super. 2000).

Section 903(a)(1) of the Crimes Code provides:

§ 903. Criminal Conspiracy

(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime;

18 Pa.C.S.A. § 903(a)(1). To sustain a conviction for criminal conspiracy,

the Commonwealth must establish the defendant: 1) entered into an

agreement to commit or aid in an unlawful act with another person or

persons; 2) with a shared criminal intent; and 3) an overt act was done in

furtherance of the conspiracy. Commonwealth v. Jones, 874 A.2d 108,

121 (Pa.Super. 2005). Additionally:

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Circumstantial evidence may provide proof of the conspiracy. The conduct of the parties and the circumstances surrounding such conduct may create a “web of evidence” linking the accused to the alleged conspiracy beyond a reasonable doubt. An agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail.

Id. at 121-22.

The essence of a criminal conspiracy is the common understanding that a particular criminal objective is to be accomplished. Mere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient. Rather, the Commonwealth must prove that the defendant shared the criminal intent, i.e., that the [defendant] was an active participant in the criminal enterprise and that he had knowledge of the conspiratorial agreement. The defendant does not need to commit the overt act; a co-conspirator may commit the overt act.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002),

appeal denied, 569 Pa. 701, 805 A.2d 521 (2002) (internal citations and

quotation marks omitted) (emphasis added). Nevertheless, circumstances

such as an association between alleged conspirators, knowledge of the

commission of the crime, presence at the scene of the crime, and/or

participation in the object of the conspiracy, are relevant to prove a

conspiracy, when “viewed in conjunction with each other and in the context

in which they occurred.” Id.

Section 6105 of the Crimes Code provides:

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§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms

(a) Offense defined.―

(1) 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.A. § 6105(a)(1).

“[A]s a general rule, a petitioner should wait to raise claims of

ineffective assistance of trial counsel until collateral review.”

Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002).

“[A]ny ineffectiveness claim will be waived only after a petitioner has had

the opportunity to raise that claim on collateral review and has failed to avail

himself of that opportunity.” Id. “[Thus], a claim raising trial counsel

ineffectiveness will no longer be considered waived because new counsel on

direct appeal did not raise a claim related to prior counsel’s ineffectiveness.”

Id.

Our Supreme Court has recognized two very limited exceptions to the

general rule in Grant regarding the appropriate timing for review of

ineffective assistance of counsel claims:

First, we appreciate that there may be extraordinary circumstances where a discrete claim (or claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration

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best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims.

Second, with respect to other cases and claims…where the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post-verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant’s knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA.

Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64

(2013) (internal citations and footnotes omitted) (emphasis added).

Instantly, Appellant fired Co-defendant’s shotgun numerous times on a

crowded street, with the intent to enact revenge on Mr. Elliot. Appellant

ultimately injured seven people. Witnesses testified at trial that Appellant

and Co-defendant frequented the block where the shooting occurred and

identified Appellant as the shooter. A jury convicted Appellant of seven

counts each of criminal attempt (first-degree murder), aggravated assault,

and PIC, and one count each of conspiracy and persons not to possess a

firearm.

The Commonwealth presented sufficient evidence to support

Appellant’s convictions. Appellant used Co-defendant’s shotgun and caused

serious bodily harm to seven people in the process of shooting Mr. Elliot.

See 18 Pa.C.S.A. §§ 2702(a)(1), 2301, 907, 903; Jones, supra; Nichols,

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supra; In re A.C., supra. The jury could reasonably infer from Appellant’s

actions that he intended the natural and probable consequences of his act.

See 18 Pa.C.S.A. § 901(a); Jackson, supra. Additionally, at trial, counsel

stipulated Appellant was a person not to possess a firearm. See 18

Pa.C.S.A. § 6105(a)(1). Viewed in the light most favorable to the

Commonwealth, there was sufficient evidence to find every element of

Appellant’s challenged convictions beyond a reasonable doubt. See Orr,

supra.

Regarding Appellant’s challenge to counsel’s effectiveness, neither

Holmes exception applies to Appellant’s case as his ineffectiveness claims

are not so apparent from the record, nor has he waived his right to seek

collateral review. See Holmes, supra. Absent these exceptions, the

general rule in Grant applies. Pursuant to Grant, we dismiss Appellant’s

ineffectiveness of counsel claim(s) but do so without prejudice to allow

Appellant to challenge counsel’s effectiveness in a timely petition for

collateral relief. See Grant, supra. Following our independent review of

the record, we conclude the appeal is otherwise wholly frivolous. See Palm,

supra. Accordingly, we affirm the judgment of sentence and grant counsel’s

petition to withdraw.

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/27/18

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