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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.
J-S45043-17


                                    ***

           [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.

                                    ***




                                    -4-
J-S45043-17



           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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J-S45043-17



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.



                                     - 11 -
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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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