J-S63003-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                    v.

JOHN DEWAYNE WELLS

                           Appellant                      No. 1237 WDA 2016


           Appeal from the Judgment of Sentence July 20, 2016
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0003524-2015


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                          FILED DECEMBER 12, 2017

     John Dewayne Wells appeals from the judgment of sentence of three

to six years incarceration imposed following his conviction for possession of

a firearm by a prohibited person and resisting arrest.             Emily M. Merski,

Esquire, has filed a petition to withdraw from representation and a brief

pursuant Anders v. California, 386 U.S. 738 (1967) and Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009). We grant the petition and affirm.

     The   trial   court    ably   set   forth   the    facts   established   by   the

Commonwealth at Appellant’s jury trial in its Pa.R.A.P. 1925(a) opinion.

     At 2:43 p.m. on October 4th, 2015, City of Erie police officers,
     including Officers David Smith and David Madurski, were
     dispatched to the area of East 24th Street, Erie, Pennsylvania
     between Wayne and Perry Streets. This dispatch was the result
     of a 911 call from a female identified as Brenda Newby, who
     witnessed two (2) individuals involved in an altercation, with one
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     of the individuals drawing a firearm on the other. According to
     Ms. Newby, the individual who drew the firearm, later identified
     as Appellant John Dewayne Wells, was a black male wearing a
     blue checkerboard shirt and a matching blue checkerboard hat
     as well as blue jeans.

     Officer Smith learned that other officers had observed Appellant,
     who matched the description of the individual who drew the
     firearm, i.e. a black male wearing a blue checkerboard shirt and
     matching blue checkerboard hat as well as blue jeans, in the
     location provided in the 911 call. Officers Smith and Madurski
     stated at no time did they observe any other individual with a
     blue checkerboard shirt and a matching blue checkerboard hat
     as well as blue jeans on October 4th, 2015 in the area indicated.
     Thereafter, Officer Smith observed Appellant traveling on foot
     around East 23rd and Ash Streets. Officer Smith pulled his
     vehicle north onto Reed Street without his emergency lights
     activated, exited his vehicle and attempted to make contact with
     Appellant. Appellant fled on foot north on Reed Street and then
     east for one-half (1/2) block on East 22nd Street, during which
     Officer Smith pursued on foot. Appellant then jumped over a
     fence and ran behind the property located at 739 East 22nd
     Street, Erie, Pennsylvania 16503. Officer Smith, pointing his
     firearm at Appellant, ordered Appellant to "get on the ground,"
     but Appellant did not respond to Officer Smith's commands.
     Appellant tried to unlock and escape through a backdoor at 739
     East 22nd Street with his keys, but Officer Smith quickly tackled
     Appellant into the door and then "threw" Appellant onto the
     ground.

     Officer Smith was attempting to place Appellant under arrest
     when other officers arrived on the scene, including Officer
     Madurski. A scuffle ensued between the police officers and
     Appellant, with several officers wrestling with Appellant,
     commanding Appellant to "put his hands behind his back" and
     "striking" Appellant. Officer Madurski observed a firearm fall
     from Appellant's person during the struggle. Eventually, the
     officers forced Appellant's hands behind his back and placed
     Appellant in handcuffs. During a search of Appellant's person,
     controlled substances were discovered and seized as evidence,
     along with the firearm.

Trial Court Opinion, 10/13/16, at 2-3.

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       Appellant was convicted of both charges following two jury trials1 and

received the aforementioned sentence.              Appellant timely appealed and

complied with the order to file a Pa.R.A.P.1925(b) statement. The matter is

ready for our review.         In the Anders brief, Attorney Merski raised the

following issue before concluding that the appeal was wholly frivolous:

       Whether the trial court erred and/or abused its discretion in
       granting the Commonwealth's Motion in Limine where the
       Commonwealth sought the admission of the 911 recording?

Appellant’s brief at 3.

       Since counsel has filed a petition to withdraw, we must first rule on the

request to withdraw without reviewing the merits of the underlying issues.

Commonwealth v. Blauser, 166 A.3d 428 (Pa.Super. 2017). In order to

withdraw     from    appellate    representation    pursuant   to Anders,   certain

procedural and substantive requirements must be met.                 Procedurally,

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

____________________________________________


1
   The first jury empaneled could not reach a verdict as to the firearms
charges, and found Appellant guilty of resisting arrest. The second jury was
able to reach a verdict on the firearms charge.



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worthy of the court's attention. See Commonwealth v. Cartrette, 83 A.3d

1030 (Pa.Super. 2013) (en banc).

        Attorney Merski’s petition to withdraw sets forth that she has reviewed

the entire record, and concluded that there are no actual or potential non-

frivolous issues. The petition includes a copy of the letter sent to Appellant,

which informed Appellant that he had the right to retain new counsel, or

proceed pro se and raise additional arguments on his own behalf.

Additionally, the letter states that Appellant was supplied with a copy of the

Anders brief. Therefore, the procedural requirements have been satisfied.

        We   now    examine    whether   the   brief   meets   the   substantive

requirements as set forth by our Supreme Court in Santiago.            The 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.

Commonwealth v. Daniels, 999              A.2d 590, 593 (Pa.Super. 2010)

(citing Santiago, supra at 361).




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        We now consider the issue raised in the Anders brief, which concerns

the trial court’s ruling on the Commonwealth’s motion in limine to permit the

introduction of the 911 call from Ms. Newby containing her observations

regarding the firearm as substantive evidence. The statements made by Ms.

Newby were offered for the truth of the matter asserted and therefore

inadmissible unless a hearsay exception applied.

        The admission of evidence is within the sound discretion of the trial

court    and   will   not   be   overturned   absent   an   abuse   of discretion.

Commonwealth v. Delbridge, 859 A.2d 1254, 1257 (Pa. 2004). The trial

court permitted introduction of the 911 call pursuant to the present sense

impression exception, which provides:

        The following are not excluded by the rule against hearsay,
        regardless of whether the declarant is available as a witness:

        (1) Present Sense Impression. A statement describing or
        explaining an event or condition, made while or immediately
        after the declarant perceived it.

Pa.R.E. 803(1).       This exception is grounded in the notion that statements

describing ongoing events are not likely to represent dissembling by the

observer, due to the concurrent nature of the observations and statements.

“Consequently, the trustworthiness of the statement depends upon the

timing of the declaration.”      Commonwealth v. Hood, 872 A.2d 175, 183

(Pa.Super. 2005) (citation omitted). As our Supreme Court noted in a case

predating the adoption of the Rules of Evidence:



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     The indicium of reliability for such a declaration is in [a
     commentator’s] view its contemporaneousness with the
     observation of the occurrence or condition. Relative immediacy
     of the declaration insures that there will have been little
     opportunity for reflection or calculated misstatement. There is no
     necessity for the presence of a startling occurrence or accident
     [to] serve as a source of reliability, for:

            The declaration is insti[n]ctive, rather than
            deliberative-in short, the reflex product of immediate
            sensual impressions, unaided by restrospective
            mental action. These are the indicia of verity which
            the law accepts as a substitute for the usual
            requirements of an oath and opportunity for cross-
            examination.

Commonwealth v. Coleman, 326 A.2d 387, 389 (Pa. 1974) (quoting

Morgan, Res Gestae, 12 Wash.L.Rev. 91, 96) (quotation marks and citations

omitted).

     As applied to 911 calls, our precedents have suggested that a

corroboration requirement applies to this exception.     “We note, however,

that the same issue of corroboration addressed under the excited utterance

exception may relate to the present sense impression exception . . . .

corroborative proof that the declarant actually viewed the event naturally

flows to this exception as well.” Hood, supra at 184.

     The Anders brief acknowledges that controlling authority treats 911

calls as falling under the present sense impression exception, and avers that

any challenge to the admission of this evidence is frivolous.        We agree.

Pursuant to the principles discussed supra, a bystander relating observations

to a 911 operator is a classic example of a present sense impression.

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Moreover, to the extent the exception actually requires corroboration, that

requirement was     satisfied.   The Commonwealth introduced evidence

establishing when the call was made, and officers responded to that area

within minutes.     The officers observed a person matching the exact

description supplied, i.e. a black male wearing a blue checkerboard shirt and

matching blue checkerboard hat. Thus, these observations corroborated the

timing requirement.    See People v. Brown, 610 N.E.2d 369, 374 (N.Y.

1993) (sufficient corroboration to permit introduction of 911 call as present

sense impression existed where officers arrived shortly after 911 call and

apprehended two suspects fitting the description given by caller).

      Finally, pursuant to Commonwealth v. Flowers, 113 A.3d 1246

(Pa.Super. 2015), we have independently examined the record to determine

if there are any additional, preserved, non-frivolous issues. Finding none, we

grant counsel's petition to withdraw and affirm.

      The petition to withdraw of Emily M. Merski, Esquire, is granted.

Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017


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