J-S19005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 TYRONE HOPPER                          :
                                        :
                   Appellant            :   No. 3095 EDA 2016
                                        :

          Appeal from the Judgment of Sentence August 25, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0013614-2013,
                         CP-51-CR-0013615-2013


BEFORE:    SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 05, 2018

     Appellant, Tyrone Hopper, appeals from the judgment of sentence

entered on August 25, 2016. In an earlier memorandum filed on April 25,

2018, we remanded this matter to the trial court for the appointment of

counsel to represent Appellant at CP-51-CR-0013614-2013 and CP-51-CR-

0013615-2013 and to comply with Pa.R.A.P. 1925. We also directed the trial

court to file an opinion addressing any issues raised on appeal. On May 2,

2018, Appellant, through appointed counsel, filed a Pa.R.A.P. 1925(c)(4)

statement of intent to file a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

which govern withdrawal from representation on direct appeal. On May 24,

2018, the trial court filed a supplemental opinion. On July 31, 2018, counsel


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for Appellant filed a timely Anders brief and petition to withdraw his

representation.    This matter is now ripe for disposition, and after careful

review, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

        The record reveals that on August 26, 2013, in the 500 block of

Carpenter Street in Philadelphia, Appellant approached Saleese Austin and

Leroy Byrd.     Appellant pointed a gun at Mr. Byrd and Ms. Austin, and he

ordered Mr. Byrd to empty his pockets. Trial Court Opinion, 5/18/17, at 2.

Mr. Byrd and Appellant then engaged in a physical altercation, and Mr. Byrd

disarmed Appellant and restrained him until police arrived. Id. at 2-3. In a

criminal information filed at CP-51-CR-0013614-2013, the Commonwealth

charged Appellant with aggravated assault, robbery, criminal attempt,

possessing an instrument of crime (“PIC”), simple assault, recklessly

endangering another person (“REAP”), resisting arrest, and four counts of

violating the uniform firearms act (“VUFA”), relating to the crimes committed

against Mr. Byrd.1 Information, 11/15/13. Additionally, in a separate criminal

information filed at CP-51-CR-0013615-2013, the Commonwealth charged

Appellant with simple assault, REAP, and PIC in connection to the crimes

committed against Ms. Austin.2 Information, 11/15/13.


118 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 901(a), 907(a), 2701(a), 2705, 5104,
6105(a)(1), 6106(a)(1), 6106.1, and 6108, respectively.

2   18 Pa.C.S. §§ 2701(a), 2705, and 907(a), respectively.


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        The cases at CP-51-CR-0013614-2013 and CP-51-CR-0013615-2013

were consolidated for trial. Following a jury trial, Appellant was found guilty

of robbery, VUFA (possession of a firearm by a prohibited person), VUFA

(firearms not to be carried without a license), VUFA (firearms not to be carried

in public in Philadelphia), PIC, and REAP at CP-51-CR-0013614-2013.          At

docket number CP-51-CR-0013615-2013, the jury found Appellant guilty of

REAP.

        At CP-51-CR-0013614-2013, the trial court sentenced Appellant to a

term of incarceration of six to twelve years for robbery, a consecutive term of

two to four years of incarceration for VUFA (possession of a firearm by a

prohibited person), a concurrent term of two to four years of incarceration for

VUFA (firearms not to be carried without a license), a concurrent term of two

to four years of incarceration for VUFA (firearms not to be carried in public in

Philadelphia), a concurrent term of two to four years of incarceration for PIC,

and a consecutive term of two years of probation for REAP. Order of Sentence,

8/25/16. At CP-51-CR-0013615-2013, the trial court sentenced Appellant to

a term of two years of probation for REAP to be served concurrently with the

two-year sentence of probation at CP-51-CR-0013614-2013.              Order of

Sentence, 8/25/16. This resulted in an aggregate sentence of eight to sixteen

years of incarceration followed by two years of probation.

        As noted, counsel filed a petition to withdraw representation. Before we

address any questions raised on appeal, we must resolve appellate counsel’s


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request to withdraw.     Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.

Super. 2013) (en banc).     There are procedural and briefing requirements

imposed upon an attorney who seeks to withdraw on direct appeal.              The

procedural mandates are that 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 worthy of the court’s
      attention.

Id. at 1032 (citation omitted).

      In this case, counsel averred that he conducted a conscientious review

of the record and pertinent legal research.     Following that review, counsel

concluded that the present appeal is frivolous. Counsel sent Appellant a copy

of the Anders brief and petition to withdraw, as well as a letter, a copy of

which is attached to the petition to withdraw. In the letter, counsel advised

Appellant that he could represent himself or that he could retain private

counsel. Appellant has not filed any additional documents with this Court.

      We now examine whether the brief satisfies our Supreme Court’s

dictates in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

provide 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
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      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 361. “[W]hen counsel meets his or her 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.’”   Id. at 355 n.5 (quoting Commonwealth v.

McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).

      Counsel’s brief is compliant with Santiago.     The brief sets forth the

procedural history of this case, outlines pertinent case authority, and

discusses counsel’s conclusion that the appeal is frivolous. We thus conclude

that the procedural and briefing requirements for withdrawal have been met.

      Counsel for Appellant has indicated that, after a thorough and careful

review of the certified record, there are no meritorious issues. Anders Brief

at 11. However, counsel does set forth three possible issues: 1) Appellant’s

sentence is manifestly excessive due to the consecutive nature of the

sentences imposed; 2) there was insufficient evidence to sustain the verdict;

and 3) the verdict was against the weight of the evidence. Id. at 12-14. We

shall address these issues in the order in which they were presented.

      Appellant first presents a challenge to the discretionary aspects of his

sentence. We note that “[t]he right to appellate review of the discretionary

aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d

127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the


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discretionary aspects of a sentence, the appeal should be considered a petition

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

            An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a four-
      part test:

            We conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue was
            properly preserved at sentencing or in a motion to
            reconsider and modify sentence, see Pa.R.Crim.P.
            [708]; (3) whether appellant’s brief has a fatal defect,
            Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)). The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will grant the appeal only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing Code;

or (2) contrary to the fundamental norms which underlie the sentencing

process.   Commonwealth v. Sierra, 752 A.2d 910, 912-913 (Pa. Super.

2000).

      Herein, the first two requirements of the four-part test are satisfied:

Appellant brought a timely appeal and raised the challenge in a post-sentence

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motion. Appellant’s brief however, does not contain a concise statement of

the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

However, as we have received no objection from the Commonwealth, we

overlook this deficiency. See Commonwealth v. Patterson, 180 A.3d 1217,

1232 (Pa. Super. 2018) (stating that when the Commonwealth does not object

to an appellant’s failure to include a Pa.R.A.P. 2119(f) statement, it results in

waiver of the defect). Therefore, we next determine whether Appellant raised

a substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

      In the Anders brief, counsel avers that the trial court imposed a

manifestly excessive sentence due to the consecutive nature of the sentences.

Anders Brief at 12-14. However, “[a] bald claim that an aggregate sentence

is manifestly excessive because the individual sentences are consecutive does

not raise a substantial question.” Commonwealth v. Dodge, 77 A.3d 1263,

1270 (Pa. Super. 2013). It is well settled that a criminal defendant is not

entitled to a volume discount for his crimes by having his sentences run

concurrently. Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super.

1995). We conclude that Appellant failed to present a substantial question,

and therefore, we decline to address this issue further.

      Next, Appellant avers that the evidence was insufficient to find him

guilty of the crimes for which he was convicted. Initially, we note that this

issue, as presented in the Anders brief, lacks specificity. Generally, when an


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appellant fails to set forth the crimes and the specific elements of those crimes

that were allegedly not proven by sufficient evidence, the challenge is waived.

See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009)

(reiterating that when an appellant challenges the sufficiency of the evidence

on appeal, the appellant’s Pa.R.A.P. 1925(b) statement must “specify the

element or elements upon which the evidence was insufficient” in order to

preserve the issue on appeal) (quoting Commonwealth v. Williams, 959

A.2d 1252, 1257 (Pa. Super. 2008) (citations omitted)).

      However, in the case at bar, counsel filed a Pa.R.A.P. 1925(c)(4)

statement of intent to file an Anders brief. Because counsel did not file a

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

and he instead seeks to withdraw pursuant to Anders, we decline to find

waiver hastily.   Rather, we shall examine these claims as part of our

independent review of the record. Santiago, 978 A.2d at 355 n.5.

      We analyze issues challenging the sufficiency of the evidence under the

following parameters:

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to the
      Commonwealth as verdict-winner, are sufficient to establish all
      elements of the offense beyond a reasonable doubt. We may not
      weigh the evidence or substitute our judgment for that of the fact-
      finder. Additionally, the evidence at trial need not preclude every
      possibility of innocence, and the fact-finder is free to resolve any
      doubts regarding a defendant’s guilt 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. When
      evaluating the credibility and weight of the evidence, the fact-

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        finder is free to believe all, part or none of the evidence. For
        purposes of our review under these principles, we must review the
        entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting

Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super. 2006)).

        As stated above, Appellant was found guilty of robbery, VUFA

(possession of a firearm by a prohibited person), VUFA (firearms not to be

carried without a license), VUFA (firearms not to be carried in public in

Philadelphia), PIC, and REAP at CP-51-CR-0013614-2013. Additionally, the

jury found Appellant guilty of REAP at docket number CP-51-CR-0013615-

2013.

        The relevant portion of the statute prohibiting robbery is defined as

follows: “A person is guilty of robbery if, in the course of committing a theft,

he … threatens another with or intentionally puts him in fear of immediate

serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii).

        The first VUFA statute of which Appellant was found guilty, possession

of a firearm by a prohibited person, provides as follows:

        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. § 6105(a)(1).

        The second VUFA statute, firearms not to be carried without a license,

states in relevant part:

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      Except as provided in paragraph (2), any 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. § 6106(a)(1).

      Additionally, the third VUFA statute, firearms not to be carried in public

in Philadelphia, provides: “No person shall carry a firearm, rifle or shotgun at

any time upon the public streets or upon any public property in [Philadelphia]

unless … such person is licensed to carry a firearm[.]”          18 Pa.C.S. §

6108(a)(1).

      Next, the crime of PIC is defined in 18 Pa.C.S. § 907 as follows: “A

person commits a misdemeanor of the first degree if he possesses any

instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a).

      Finally, REAP states: “A person commits a misdemeanor of the second

degree if he recklessly engages in conduct which places or may place another

person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.

      After review, we conclude that the evidence presented at trial was

sufficient to establish each of the aforementioned crimes. At trial, Leroy Byrd

testified that on August 26, 2013, a man armed with a gun, who was later

identified as Appellant, approached Mr. Byrd and his cousin, Saleese Austin,

on the 500 block of Carpenter Street in Philadelphia. Appellant pointed the

gun at Mr. Byrd’s chest, and he directed Mr. Byrd to empty his pockets.

Appellant then raised the gun to Mr. Byrd’s face, and Mr. Byrd, fearing


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Appellant was about to shoot him, reached for the weapon. The two men

struggled for the gun, and Mr. Byrd wrested it away from Appellant. During

the struggle, Appellant bit Mr. Byrd on the shoulder. Mr. Byrd struck Appellant

in the face with the gun multiple times, and Appellant fell to the ground. Mr.

Byrd and Ms. Austin then restrained Appellant until police arrived and arrested

him. N.T., 10/14/14, at 44-56. Mr. Byrd was unable to identify Appellant,

but Police Officer Joseph McCann who responded to the robbery identified

Appellant as the man who was arrested on Carpenter Street after the

aforementioned incident on August 26, 2014.        Id. at 15.    Officer Frank

Lafontana testified that he recovered Appellant’s gun from the scene.     N.T.,

10/14/14, at 105.

      Mr. Byrd’s cousin, Saleese Austin, provided consistent testimony. Ms.

Austin identified Appellant as the assailant, and she stated that Appellant

pointed his gun at her first. N.T., 10/9/14, at 24-27.

      After review, we agree with counsel’s assessment in the Anders brief

that an appeal on the sufficiency of the evidence is frivolous. The testimony

noted above aptly establishes every element of robbery, VUFA (firearms not

to be carried in public in Philadelphia), PIC, and two counts of REAP. As for

the convictions for VUFA (firearms not to be carried without a license) and

VUFA (possession of a firearm by a prohibited person), we note that Appellant

stipulated that he did not have a license to carry a firearm and had a prior

conviction making him ineligible to possess a firearm. N.T., 10/15/14, at 11;


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N.T., 10/16/14, at 13. Accordingly, Appellant is due no relief regarding the

sufficiency of the evidence.

      The final issue set forth in the Anders brief is a challenge to the weight

of the evidence. Our Supreme Court has described the standard applied to a

weight-of-the-evidence claim as follows:

      The decision to grant or deny a motion for a new trial based upon
      a claim that the verdict is against the weight of the evidence is
      within the sound discretion of the trial court. Thus, the function of
      an appellate court on appeal is to review the trial court’s exercise
      of discretion based upon a review of the record, rather than to
      consider de novo the underlying question of the weight of the
      evidence. An appellate court may not overturn the trial court’s
      decision unless the trial court palpably abused its discretion in
      ruling on the weight claim. Further, in reviewing a challenge to
      the weight of the evidence, a verdict will be overturned only if it
      is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

and quotation marks omitted). “[W]e do not reach the underlying question of

whether the verdict was, in fact, against the weight of the evidence....

Instead, this Court determines whether the trial court abused its discretion in

reaching whatever decision it made on the motion[.]” Commonwealth v.

Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted).

      A challenge to the weight of the evidence must first be raised at the trial

level “(1) orally, on the record, at any time before sentencing; (2) by written

motion at any time before sentencing; or (3) in a post-sentence motion.”

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Appellant

preserved his challenge to the weight of the evidence by raising the issue in


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his post-sentence motion. The trial court denied Appellant’s post-sentence

motion, without a hearing, on August 31, 2016.

     As discussed earlier, there was testimony from the victims that

Appellant approached Mr. Byrd and Ms. Austin while brandishing a firearm.

Appellant then robbed Mr. Byrd, while placing others in danger due to his

possession of the firearm. We conclude that there was nothing shocking about

the verdict, and we discern no abuse of discretion in the trial court denying

Appellant’s post-sentence motion challenging the weight of the evidence.

     Finally, we note that we have independently reviewed the record in

order to determine whether there are any non-frivolous issues present in this

case that Appellant may raise. Commonwealth v. Harden, 103 A.3d 107,

111 (Pa. Super. 2014). Having concluded that there are no meritorious issues,

we grant Appellant’s counsel permission to withdraw, and we affirm the

judgment of sentence.

     Petition of counsel to withdraw is granted.     Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/18


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