J-S16006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :          IN THE SUPERIOR COURT OF
                                 :               PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    CLAUDIO HERNANDEZ, JR.       :
                                 :
                  Appellant      :          No. 1740 MDA 2017

             Appeal from the Judgment of Sentence June 15, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003168-2016

BEFORE:     BOWES, J., MURRAY, J., and PLATT,* J.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 25, 2018

       Claudio Hernandez, Jr. appeals from the judgment of sentence imposed

following his conviction of possession of firearm prohibited.      Appellant’s

counsel has filed an application 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). Upon review, we affirm the judgment of sentence and

grant counsel’s application to withdraw.

       On June 12, 2016, Appellant fired four shots at Christopher Johnson,

who was outside of the Prince of Subs after he completed a shift as a security

guard there. Mr. Johnson pursued Appellant, tackled him, and recovered a

Sig Sauer 9-millimeter firearm from Appellant. Based upon prior convictions

for burglary and possession of controlled substances, Appellant was not

permitted to possess a firearm.




*    Retired Senior Judge assigned to the Superior Court.
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       On March 29, 2017, following a trial at which Appellant had the

assistance of an interpreter, a jury convicted Appellant of person not to

possess.1 Following a presentence investigation, the trial court imposed the

statutory maximum, yet mitigated-range, sentence of five to ten years

imprisonment, along with costs and other conditions.2 Appellant filed a timely

post-sentence motion, which the trial court denied by order of October 18,

2017. Appellant filed a timely notice of appeal.3

       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
____________________________________________


1Appellant was charged with other crimes in connection with the incident in
question. However, those charges were severed from the person-not-to-
possess count, and are not at issue in this appeal.

2 Appellant’s prior record score is RFEL, and the offense gravity score for
person not to possess is ten. Sentencing Guidelines Worksheet, 6/15/17.
Accordingly, applying the deadly weapon used enhancement, the guidelines
called for a standard minimum sentence of ninety to 102 months, +/- 12. See
204 Pa. Code § 303.17(b). Person not to possess is a second-degree felony,
and thus carries a maximum sentence of 120 months imprisonment. 18
Pa.C.S. §§ 106(b)(3), 6105(a.1)(a). Appellant was sentenced to sixty to 120
months.

3The trial court ordered the filing of a concise statement of errors complained
of on appeal, and counsel complied by filing a statement of intention to file an
Anders brief. The trial court did not author a Pa.R.A.P. 1925(a) opinion;
however, we have the benefit of its opinion that accompanied the denial of
Appellant’s post-sentence motion.

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     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 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, supra at 361.

     Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied with the technical




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requirements set forth above.4 Therefore, we now proceed “‘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, supra at 354 n.5).

See also Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018)

(en banc) (holding this Court’s review review of the record is “to ascertain if

on its face, there are non-frivolous issues that counsel, intentionally or not,

missed or misstated”).

        Counsel identified several issues that arguably support this appeal,

which we will consider seriatim. First, we review the sufficiency and weight of

the evidence supporting Appellant’s conviction. Anders brief at 11-13.

               A claim challenging the sufficiency of the evidence is a
        question of law. 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. Where the evidence offered to support the
        verdict is in contradiction to the physical facts, in contravention to
        human experience and the laws of nature, then the evidence is
        insufficient as a matter of law. When reviewing a sufficiency claim
        the court is required to view the evidence in the light most
        favorable to the verdict winner giving the prosecution the benefit
        of all reasonable inferences to be drawn from the evidence.

               A motion for new trial on the grounds that the verdict is
        contrary to the weight of the evidence, concedes that there is
        sufficient evidence to sustain the verdict. Thus, the trial court is
        under no obligation to view the evidence in the light most
        favorable to the verdict winner. An allegation that the verdict is
        against the weight of the evidence is addressed to the discretion
        of the trial court. A new trial should not be granted because of a
____________________________________________


4   Appellant did not file a response to counsel’s petition.

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      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. A trial judge
      must do more than reassess the credibility of the witnesses and
      allege that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is against
      the weight of the evidence do not sit as the thirteenth juror.
      Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of greater
      weight that to ignore them or to give them equal weight with all
      the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (footnote,

internal citations, and quotation marks omitted).

      Appellant was convicted of violating § 6105 of the Crimes Code, which

provides as follows in relevant part.

      (a) Offense defined.--

            (1) 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.

                  ....

      (b) Enumerated offenses.--The following offenses shall apply
      to subsection (a):

                  ....

            Section 3502 (relating to burglary).

                  ....

      (c) Other persons.--In addition to any person who has been
      convicted of any offense listed under subsection (b), the following
      persons shall be subject to the prohibition of subsection (a):


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                   ....

            (2) A person who has been convicted of an offense under
            the act of April 14, 1972 (P.L. 233, No. 64), known as The
            Controlled Substance, Drug, Device and Cosmetic Act, or
            any equivalent Federal statute or equivalent statute of any
            other state, that may be punishable by a term of
            imprisonment exceeding two years.

18 Pa.C.S. § 6105.

      Mr. Johnson testified at Appellant’s trial, indicating that he had known

Appellant for a couple of years. Appellant lived across the street from the

Prince of Subs restaurant where Mr. Johnson worked, and had been banned

from the establishment except for take-out orders. One night several months

before the shooting, Appellant attempted to enter the shop to order take-out,

but Mr. Johnson refused him entry based upon Appellant’s visible signs of

intoxication.   Appellant threatened Mr. Johnson, resulting in Mr. Johnson’s

decision to permanently exclude Appellant from the Prince of Subs. N.T. Trial,

3/29/17, at 120-23. On the night in question, Mr. Johnson had entered his

vehicle after his shift was completed, and heard at least four gunshots. Id.

at 125-26. One shot hit the rear tire of his vehicle, and another struck a

quarter panel and shattered the window. Id.

      Two Prince of Subs customers who had been standing near Mr.

Johnson’s automobile pointed across the street, and Mr. Johnson saw a man

duck behind a truck. Id. at 126-27. Furious at the damage and fueled by

adrenaline, Mr. Johnson ran after the man despite fears that the shooter might

be reloading his weapon. Id. at 127. Mr. Johnson rounded the truck, saw his

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target fleeing, ran after him, and tackled him. Id. Upon rolling off the dazed

man, Mr. Johnson saw that it was Appellant whom he had tackled. Id. at 128.

The customers approached from across the street, and one of them picked up

a gun from under Appellant. Id. at 129.

      Police recovered four 9-millimeter shell casings from the area directly

across the street from Mr. Johnson’s vehicle.      Id. at 84.    Video footage

recovered by the police showed Appellant standing in that area, staring across

the street at the Prince of Subs, immediately prior to the shooting. Id. at 97-

98. Testing showed the gun recovered from Appellant was operable, and that

it was the weapon used to discharge the casings recovered from the crime

scene.   N.T. Trial, 3/30/17, at 181.     Further, the parties stipulated that

Appellant was a person not to possess based upon a 1979 burglary conviction

and violations of the Controlled Substance, Drug, Device and Cosmetic Act in

1982, 1994, 1998, and 2003. Id. at 156-57.

      Based upon this evidence, viewed in the light most favorable to the

Commonwealth, we agree with counsel that any challenge to the sufficiency

of the evidence would be meritless. Moreover, our review of the record also

reveals that the trial court committed no abuse of discretion in concluding that




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the verdict was not against the weight of the evidence.5 Accordingly, a weight

challenge would warrant no relief from this Court.

       Counsel also discusses three additional issues that Appellant wished to

raise in this appeal. Anders brief at 15-17. However, as those claims regard

the performance of trial counsel, appellate counsel is correct that they are

properly addressed in a post-conviction collateral attack, not this direct

appeal.    Id. at 14 (citing Commonwealth v. Holmes, 79 A.3d 562 (Pa.

2013), and Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)).

       Therefore, we agree with counsel that the identified issues do not

support an appeal. Further, we have conducted “a full examination of the

proceedings” and conclude that “the appeal is in fact wholly frivolous.” 6


____________________________________________


5 Although the trial court suggested that Appellant waived his weight claim by
failing to state it with sufficient specificity, the court nonetheless examined
the evidence and opined that there was no indication “that the jury’s verdict
was so contrary to the evidence so as to shock one’s sense of justice such that
the award of a new trial is imperative so that right may be given another
opportunity to prevail.” Trial Court Opinion, 10/18/17, at 6.

6 We note that Appellant sought reconsideration of his sentence in his post-
sentence motion, but counsel does not discuss the denial of that request in
the Anders brief. However, upon our independent review of the record, we
find no abuse of discretion by the trial court. The court’s reasoning in imposing
a mitigated-range sentence, albeit the statutory maximum in this instance,
was not the product of the sentencing court’s having “ignored or misapplied
the law, exercised its judgment for reasons of partiality, prejudice, bias or ill
will, or arrived at a manifestly unreasonable decision.” Commonwealth v.
Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (internal quotation marks
omitted). See Trial Court Opinion, 10/18/17, at 8-9 (explaining that the court
considered the relevant factors and determined that the sentence reflected
the magnitude of Appellant’s crime and will achieve “the requisite
rehabilitative, deterrent, and safety objectives”).

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Flowers, supra at 1248. Accordingly, we affirm the judgment of sentence

and grant counsel’s application to withdraw.

     Judgment of sentence affirmed.       Application to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2018




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