J-S42007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL CARR                               :
                                               :
                       Appellant               :   No. 4086 EDA 2017

           Appeal from the Judgment of Sentence November 30, 2017
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004588-2017


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 30, 2019

        Michael Carr appeals from the judgment of sentence imposed on

November 30, 2017, in the Court of Common Pleas of Philadelphia County

following his bench trial on the charges of robbery, conspiracy to commit

robbery, simple assault, and reckless endangerment.            Carr received an

aggregate sentence of three to six years’ incarceration. In this timely appeal,

Carr challenges the sufficiency of the evidence regarding the robbery charge.

Carr’s counsel has filed an Anders1 brief, asserting there are no non-frivolous

issues, as well as a motion to withdraw as counsel. Carr has not responded

to the Anders brief.        After a thorough review of the submissions by the




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Anders v. California, 386 U.S. 738 (1967).
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parties, relevant law, and the certified record, we grant counsel’s motion to

withdraw and affirm the judgment of sentence.

      As noted, Carr’s counsel has filed both an Anders brief and a motion to

withdraw as counsel. In reviewing this, we are guided by the following

principles.

          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). Our Supreme Court has clarified
      portions of the Anders procedure:

          [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

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         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.] Santiago, 978 A.2d [349] at 361 [(Pa.
      2009)].

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017). Counsel

has   complied   with   the   technical   requirements   of   Anders/Santiago.

Accordingly, we will undertake our required independent review of the record

to make certain there are no non-frivolous issues.

      The trial court provided the factual background of this matter in its

Pa.R.A.P. 1925(a) opinion.

      On April 13, 2017, the complaining witness[,] Paul Livingston, an
      elderly man who is extremely hard of hearing, was on a smoke
      break with several other residents, including [Carr], outside the
      halfway house where they resided.         While outside, another
      resident asked Livingston “for change” for a $20 bill, which
      Livingston agreed and took out his wallet. Livingston testified that
      he is one of the older residents of the halfway house who looks
      out for the younger residents. While pulling out money to make
      change, Livingston accidentally dropped $865 in U.S[.] currency
      onto the stairs. While Livingston was picking up his money, he
      noticed [Carr] sitting on the stairs smoking his cigarette, just a
      few feet from Livingston.

      After the smoke break, Livingston finished his dinner and returned
      to his room upstairs, where he was followed by [Carr] and Mr.
      Shawn Hammond. Mr. Livingston testified at trial that he was
      unaware that [Carr] and Mr. Hammond were behind him, due to
      the fact that Mr. Livingston is extremely hard of hearing. Shortly
      after entering the room, Livingston was struck twice from behind,
      choked, and placed in a headlock with such force that he was
      pulled off the ground and lost consciousness for “15-20 seconds”.
      After regaining consciousness, Livingston saw a hooded person
      come towards him and begin reaching into Mr. Livingston’s pocket,

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      taking a few dollar bills. Mr. Livingston reached towards the
      individual and managed to pull off the hood, revealing [Carr], who
      Mr. Livingston recognized as his neighbor from across the hall for
      the past six months. After being unmasked, [Carr] stopped what
      he was doing and immediately left the room, with Mr. Hammond
      following behind him. Mr. Livingston testified that [Carr] took
      “three or four dollars” and that his previous injuries in his back
      and neck area had been severely aggravated from the attack. The
      prosecutor then introduced a surveillance video that showed
      Livingston walking up to his bedroom and [Carr] and Mr.
      Hammond following behind.

Trial Court Opinion, 3/22/2019, at 2-3.

      Against this background, Carr asserts there was insufficient evidence to

sustain his conviction for robbery, because the Commonwealth failed to prove

he “inflicted bodily injury on another or threatened another with or

intentionally put him in fear of immediate bodily injury.”         Carr’s Pa.R.A.P.

1925(b) Statement at 1-2.

      The evidence presented at trial, and related by the trial court in its

opinion, demonstrates Carr conspired with Hammond to commit a robbery

against Livingston.     During the course of that crime, Hammond struck

Livingston twice from behind, choked him until he passed out, and

exacerbated Livingston’s pre-existing neck and back injuries, including

herniated discs.    Hammond inflicted bodily injury upon Livingston.           Even

accepting that Carr never touched Livingston beyond reaching into his pocket

to try to take the cash, Carr is equally culpable for the infliction of bodily injury

due to his conspiracy with Hammond. The trial court, sitting as fact finder,

accepted Livingston’s testimony regarding his injuries. Therefore, there was

sufficient evidence to support the robbery conviction.


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      Carr’s brief claims insufficient evidence as to all charges.   However,

insufficiency was raised in his Pa.R.A.P. 1925(b) statement only as to robbery,

as discussed above.    Accordingly, insufficiency of the evidence has been

waived as to everything except robbery.      Nonetheless, because this is an

Anders review, we have independently examined the record as a whole,

including a review of the sufficiency of the evidence for all charges.    This

independent review confirms the sufficiency of evidence to support all

charges.   Additionally, our independent review of the record confirmed

counsel’s assertion there are no other non-frivolous claims.

      Judgment of sentence affirmed. Motion to withdraw as counsel granted.

      Judge Colins joins in this memorandum.

     Judge Kunselman concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/19




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