J-S30013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AARON MILLS                                :
                                               :
                       Appellant               :   No. 1045 EDA 2018

         Appeal from the Judgment of Sentence Entered March 6, 2018
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0001155-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                            FILED MARCH 27, 2020

       Aaron Mills appeals from the judgment of sentence imposed on March

6, 2018, in the Court of Common Pleas of Chester County. A jury convicted

him of three counts of robbery, two counts of aggravated assault, two counts

of simple assault, and one count each of terroristic threats, theft by unlawful

taking, receiving stolen property, carrying a firearm without a license

(“VUFA”), possession of an instrument of crime (“PIC”), and criminal

conspiracy.1 The trial court sentenced Mills to an aggregate term of 16 to 44

years’ imprisonment.




____________________________________________


1  18 Pa.C.S. §§ 3701(a)(1)(ii)(iii)(iv), 2702(a)(1)(4), 2701(a)(1)(3),
2706(a)(1), 3921(a), 3925(a), 6106(a)(1), 907(a), and 903(a)(1),
respectively.
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      Contemporaneous with this appeal, Mills’ counsel has filed a petition to

withdraw from representation and an Anders brief.            See Anders v.

California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981). The two issues addressed in the Anders brief are challenges

to the sufficiency of the evidence and a claim the prosecutor exercised

peremptory strikes in a racially discriminatory manner in violation of Batson

v. Kentucky, 476 U.S. 79 (1986). After a thorough review of the submissions

by the parties, relevant law, and the certified record, we affirm and grant

counsel’s petition to withdraw.

      On October 29, 2017, the victim, Scott Thornton, and his wife returned

to their home in Thorndale, Chester County, after dinner at a local restaurant.

N.T. Trial, 1/23/18, at 11. As Thornton exited the car, he saw a tall, thin,

African American man approach. The man was wearing a mask pulled down

over half his face, a dark top, gray sweat pants and sneakers; he raised a

semiautomatic weapon to Thornton’s head and said, “I know you got money.

Give me your cash. Give me your wallet.” Id. at 16; see also N.T. Trial

1/22/18, at 63; 1/23/18 at 16-17.

      Thornton handed over his cell phone, but the man continued to demand

Thornton’s wallet. Id. at 21-22. After Thornton complied, the assailant rifled

through the wallet, pulled out Thornton’s debit card, and demanded the card’s

personal identification number. Id. at 23-24. Thornton made up a number




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as the man bent to pick up the wallet, which he had dropped in his haste. Id.

at 24-25. Thornton then unsuccessfully attempted to tackle him. Id.

      The man again pointed the gun at Thornton and instructed him to get

down on the ground, where he kicked Thornton in the ribs. Id. at 25-27.

Thornton looked up just as the man raised the gun to Thornton’s face and

pulled the trigger. Id. Thornton heard the click of the gun, and saw the man’s

eyes widen in surprise when it did not fire. Id. Thornton’s wife, although

unable to observe all of the incident, also saw the gun and heard it click. Id.

The robber began running away as Thornton gave chase. Id. at 54-55. The

robber got into a dark-colored Nissan sedan with Delaware plates and drove

off. Id. at 27-28, 31-34. A red sedan that had been parked right behind the

robber’s vehicle also quickly drove away. Id.

      Thornton’s wife called police, who spotted the vehicles driving close

together on the highway approximately 15 minutes later.         Id. at 38-39.

Officers conducted a traffic stop of the dark-colored Nissan, and arrested

Appellant and his accomplice. Police recovered one of Thornton’s credit cards

and his wallet from the dark-colored Nissan. Id. at 172-74, 176-77. Some

of Thornton’s other credit cards and his cell phone were found scattered

between the scene of the crime and the location where the police stopped the

vehicle. Id. at 179, 182.

      Appellant proceeded to a jury trial.      Appellant’s accomplice, Myles

Turner, a long-time friend, who had entered an open guilty plea to robbery,


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conspiracy, and aggravated assault, testified he and Appellant had planned to

break into houses in Thornton’s neighborhood and steal televisions. Id. at

71-74. Turner brought his girlfriend and his sister, who accompanied the men

in a red sedan. Id. at 73-74. Turner stated when Appellant exited the Nissan,

Turner believed he was going to burglarize a nearby home.              Id. at 78-79.

Turner averred when Appellant exited the car, he put on a mask and carried

a loaded firearm. Id. Appellant then ran back toward the cars moments later,

shouting “pull off, pull off!” as a man chased him. Id. at 82.

       Alexis Turner, Myles Turner’s sister, also testified as to her role in the

events. She stated Myles Turner and Appellant were long-time friends and

she had known Appellant for eight or nine years.              Id. at 107-08.       She

confirmed Myles Turner and Appellant wanted to borrow her vehicle to use in

a scheme to burglarize some homes and steal televisions.             Id. at 110-12.

Naikeya Hunter, Myles Turner’s girlfriend, also testified, confirming Turner’s

version of the events of that evening. Id. at 122-35.

       On    January     24,   2018,     the   jury   convicted   Appellant   of   the

aforementioned charges.          On March 6, 2018, following receipt of a pre-

sentence investigation report, the trial court sentenced Appellant as

delineated above. The instant timely appeal followed.2

____________________________________________


2 Appellant, despite being represented by counsel, filed the notice of appeal
pro se as well as a pro se concise statement of errors complained of on appeal.
This Court remanded the matter for a determination of whether Appellant had



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       Preliminarily, we note when counsel files a petition to withdraw and

accompanying Anders brief, we must first examine the request to withdraw

before addressing any of the substantive issues raised on appeal.         See

Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). Here,

our review of the record reveals counsel has substantially complied with the

requirements for withdrawal outlined in Anders and its progeny.

       Specifically, counsel requested permission to withdraw based upon his

determination the appeal is “wholly frivolous,” filed an Anders brief pursuant

to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009), furnished a copy of the Anders brief to Mills3 and advised Mills of his

right to retain new counsel or proceed pro se.      See Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Moreover, our

review of the record reveals no correspondence from Mills responding to the

Anders brief. Accordingly, we will proceed to examine the issues counsel

identified in the Anders brief, and then conduct “a full examination of all the


____________________________________________


been abandoned by counsel. The trial court, after determining counsel had
abandoned Appellant, appointed new counsel. In response to the trial court’s
order, counsel filed an amended Rule 1925(b) statement on September 7,
2018. On December 17, 2018, the trial court issued an opinion.

3On October 25, 2019, this Court remanded the matter for counsel to file an
amended notice of appeal and to file an amended proof of service
demonstrating he served a copy of the Anders brief on Appellant. Counsel
has now complied with all of this Court’s directives.




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proceedings,      to    decide     whether     the   case   is   wholly   frivolous.”

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 2018) (en

banc).4

       First, Mills contends that the evidence was insufficient to support his

convictions. See Anders Brief, at 14-20. We disagree.

       Our standard of review of a sufficiency claim is well settled:

       Our standard for evaluating sufficiency of the evidence is whether
       the evidence, viewed in the light most favorable to the
       Commonwealth [as verdict winner], is sufficient to enable a
       reasonable [factfinder] to find every element of the crime beyond
       a reasonable doubt. [T]he entire trial record must be evaluated
       and all evidence actually received must be considered, whether or
       not the trial court's rulings thereon were correct. Moreover, [t]he
       Commonwealth may sustain its burden of proving every element
       of the crime beyond a reasonable doubt by means of wholly
       circumstantial evidence. Finally, the trier of fact, while passing
       upon the credibility of witnesses and the weight to be afforded the
       evidence produced, is free to believe all, part or none of the
       evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted).

       Here, the trial court in its Rule 1925(a) opinion provided a thorough and

well-reasoned discussion of Appellant’s sufficiency of the evidence issues. See

Trial Court Opinion, 12/17/18, at 53-76 (finding the evidence sufficient to

sustain conviction for: (1) aggravated assault (54-59); (2) simple assault

(59-60); (3) theft by unlawful taking (60-62); (4) robbery (63-66); (5)


____________________________________________


4 See also Commonwealth v. Dempster, 187 A.3d 266 (Pa. Super. 2018)
(en banc).

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terroristic threats (66-68); (6) receiving stolen property (68-69); (7) VUFA

(69-71); (8) PIC (71); and (9) conspiracy (72-76)). Our review of the record

reveals ample support for the trial court’s conclusions. Accordingly, we adopt

the reasoning of the trial court on this issue. Appellant’s first claim does not

merit relief.

        In his second claim, Appellant argues the trial court erred in denying his

Batson challenge and allowing the Commonwealth to strike the only African-

American venire person from the jury. Anders Brief, at 20-22. However,

Appellant waived this claim, which, in any event, is meritless.

        Initially, we note a Batson claim presents mixed questions of law and

fact.   Therefore, our standard of review is whether the trial court’s legal

conclusions are correct and whether its factual findings are clearly erroneous.

        In Batson, the [Supreme Court of the United States] held that a
        prosecutor’s challenge to potential jurors solely on the basis of
        race violates the Equal Protection Clause of the United States
        Constitution. When a defendant makes a Batson challenge
        during jury selection:

                First, the defendant must make a prima facie showing
                that the circumstances give rise to an inference that
                the prosecutor struck one or more prospective jurors
                on account of race; second, if the prima facie showing
                is made, the burden shifts to the prosecutor to
                articulate a race-neutral explanation for striking the
                juror(s) at issue; and third, the trial court must then
                make the ultimate determination of whether the
                defense has carried its burden of proving purposeful
                discrimination.

Commonwealth v. Edwards, 177 A.3d 963, 971 (Pa. Super. 2018) (citations

and quotation marks omitted). “The trial court should consider the totality of

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circumstances    when     determining   whether    the   prosecutor    acted   with

discriminatory   intent     or     engaged    in   purposeful      discrimination.”

Commonwealth v. Towles, 106 A.3d 591, 602 (Pa. 2014) (citation omitted).

This Court must give great deference to the trial court’s finding about the

absence of discriminatory intent in peremptory challenges, and we will not

overturn it unless it is clearly erroneous. See id.

      Further, with respect to the preservation of Batson claims, our Supreme

Court has stated an appellant must raise a Batson objection during voir dire

in order to “preserve a challenge to the Commonwealth’s use of peremptory

strikes.” Commonwealth v. Smith, 17 A.3d 873, 894 (Pa. 2011). Where

“defense counsel did not raise or preserve any claim of racial discrimination in

jury selection with a contemporaneous Batson objection at trial, we have

repeatedly    held   that    the    Batson    framework     does      not   apply”.

Commonwealth v. Hutchinson, 25 A.3d 277, 287 (Pa. 2011).

      Here, the record reveals Appellant did not raise a Batson objection

during the jury selection process. Rather, immediately prior to exercising

peremptory challenges, the Commonwealth noted there was only a single

African-American venire person.          N.T. Trial, 1/22/18, at 58.           The

Commonwealth stated it was going to challenge her and wanted to explain its

reasoning, namely, because the venire person said she was less likely to

believe the testimony of a police officer, and there were many police officers




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testifying in the case, and because her nephew was awaiting trial in a home

invasion case. Id.

       The trial court noted it was also familiar with the nephew’s case and felt

the Commonwealth’s reason was legitimate because “we come close to having

a home invasion robbery and we know that there is a weapons charge here

and there will be the charge of person unlicensed to carry.” Id. at 58-59. In

response, defense counsel stated, “I understand.”             Id. at 59.      The

Commonwealth then reiterated it would not have considered striking the

potential juror but for that situation and defense counsel agreed the

Commonwealth had good reason to be skeptical of her. Id. at 59. Therefore,

at no point did defense counsel raise a Batson challenge.            Accordingly,

Appellant has waived his Batson claim.

       In any event, the claim lacks merit. Here, the trial court explained:

       As set forth in the record and in his Statement of Matters
       Complained of on Appeal, [Appellant] is African-American. There
       was one Batson challenge[5] during jury selection due to the
       striking of juror number four . . . who was African-American. If
       this excluded all African-American venire-persons from the pool of
       potential jurors, as [Appellant] alleges on appeal, this would
       establish a prima facie case of purposeful discrimination.

       Therefore, we must turn to the second step of the Batson
       analysis. . . . In this case, the Commonwealth certainly proffered
       a race-neutral explanation for striking this juror. During
       questioning, [the juror] revealed that her nephew had been
____________________________________________


5In its opinion, the trial court noted it did not have the benefit of a transcript
and was relying on its memory of the events and its contemporaneous notes.
Trial Ct. Op., at 77-78. As we discussed above, the record does not
demonstrate defense counsel ever made a Batson challenge.

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      criminally charged following a home invasion with a firearm. The
      attorney for the Commonwealth confirmed these charges on her
      nephew . . . .

      Coincidentally, [the trial] court had [the nephew] on its Criminal
      docket and accepted a guilty plea from [him] . . . . Due to the
      similarity of the charges in this case and her nephew’s case, this
      court finds that this race neutral explanation was valid.

      The third step in the Batson analysis involves the court
      determining if the defense carried its burden of proving purposeful
      discrimination. . . . Based upon the totality of the circumstances,
      it is abundantly clear that the Commonwealth’s reason for striking
      this juror was not race related. Due to the similarity of the
      charges in this case and the juror’s nephew’s case, the race-
      neutral explanation for the peremptory challenge defeats
      [Appellant’s] allegation that this was a purposeful discrimination
      based upon race. Accordingly, [Appellant’s] issue on appeal is
      without merit.

Trial Ct. Op., 12/17/18, at 77-80 (footnote omitted).

      In the totality of the circumstances, we discern no legal or factual error.

The Commonwealth provided a race-neutral explanation and the trial court

found Appellant failed to carry his burden of proving his Batson claim. See

Towles, 106 A.3d at 602; Edwards, 177 A.3d at 971. Thus, even if not

waived, Appellant’s second and final issue would not merit relief.

      Lastly, in accordance with Yorgey, we have independently reviewed the

certified record in order to determine if counsel’s analysis regarding the

frivolous nature of the present appeal is correct.      Because we agree with

counsel’s assessment this appeal is wholly frivolous, we affirm the judgment

of sentence and grant counsel’s petition to withdraw.




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     Judgment of sentence affirmed.     Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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